1

1–7–03

Vol. 68 No. 4

Tuesday 

Jan. 7, 2003

Pages 663–994

.

II

2

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003

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Contents Federal Register

III

Vol. 68, No. 4

Tuesday, January 7, 2003

Agency for Healthcare Research and Quality

NOTICES

Agency information collection activities:

Proposed collection; comment request, 783–785

Meetings:

Health Services Research Initial Review Group 

Committee, 785

Agriculture Department

See Forest Service

Centers for Disease Control and Prevention

NOTICES

Agency information collection activities:

Submission for OMB review; comment request, 785–787

Commerce Department

See International Trade Administration

See National Oceanic and Atmospheric Administration

Defense Department

NOTICES

Agency information collection activities:

Proposed collection; comment request, 753–754

Submission for OMB review; comment request, 754–755

Energy Department

See Energy Information Administration

See Federal Energy Regulatory Commission

NOTICES

Agency information collection activities:

Submission for OMB review; comment request, 755–756

Energy Information Administration

NOTICES

Reports and guidance documents; availability, etc.:

Statistical tables based on historical electric power survey 

information collected under pledge of confidentiality; 

policy statement, 756–759

Environmental Protection Agency

RULES

Air quality implementation plans; approval and 

promulgation; various States:

Virginia, 663–670

Toxic substances:

Inventory update rule; amendments, 847–906

PROPOSED RULES

Air quality implementation plans; approval and 

promulgation; various States:

Virginia, 723

NOTICES

Grants, State and local assistance:

Grantee performance evaluation reports—

North Carolina and Tennessee, 772

Water pollution control:

Clean Water Act—

Michigan; Section 404 permit program; informal review 

findings, 772–775

McMurdo Sound, Antarctica; ocean disposal of manmade ice piers; general permit to National Science 

Foundation, 775–780

Federal Communications Commission

RULES

Radio and television broadcasting:

Broadcast and cable EEO rules and policies—

Revision, 670–710

PROPOSED RULES

Practice and procedure:

Competitive market conditions with respect to 

commercial mobile services; annual report and 

analysis, 730–740

Spectrum-based services provision to rural areas and 

opportunities for rural telephone companies to 

provide these services, 723–730

Federal Energy Regulatory Commission

NOTICES

Electric rate and corporate regulation filings:

Phoenix Energy Associates, L.L.C., et al., 770–772

Applications, hearings, determinations, etc.:

ANR Pipeline Co., 759

CenterPoint Energy Gas Transmission Co., 759–760

Citizens Communications Co., 760

Colorado Interstate Gas Co., 760–761

Discovery Gas Transmission LLC, 761

El Dorado Irrigation District, 762

Kinder Morgan Interstate Gas Transmission LLC, 762

Northern Natural Gas Co., 762–763

Pacific Gas & Electric Co., 763

Pine Needle LNG Co., LLC, 764

Southern California Edison Co. et al., 764–766

Texas Gas Transmission Corp., 766–767

Transcontinental Gas Pipe Line Corp., 767–768

Transwestern Pipeline Co., 768

Washington Gas Light Co., 768

Wellco Services, Inc., 769

Wyckoff Gas Storage Co., LLC, 769–770

Wyoming Interstate Co., Ltd., 770

Federal Housing Finance Board

NOTICES

Federal home loan bank system:

Community financial institutions average total assets and 

directors annual compensation; limits; annual 

adjustments, 780–782

Federal Reserve System

NOTICES

Meetings; Sunshine Act, 782

Forest Service

NOTICES

Meetings:

Resource Advisory Committees—

Idaho Panhandle, 741

Government Ethics Office

NOTICES

Agency information collection activities:

Proposed collection; comment request, 782–783

Health and Human Services Department

See Agency for Healthcare Research and Quality

IV Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Contents 

See Centers for Disease Control and Prevention

See Health Resources and Services Administration

Health Resources and Services Administration

NOTICES

Organization, functions, and authority delegations:

Grants Management Operations Division et al., 787–793

Interior Department

See Surface Mining Reclamation and Enforcement Office

International Trade Administration

NOTICES

Antidumping:

Large diameter carbon and alloy seamless standard, line, 

and pressure pipe from—

Mexico; correction, 845

Stainless steel wire rod from—

Spain, 741

Applications, hearings, determinations, etc.:

University of—

Texas at Austin et al., 741–742

Judicial Conference of the United States

NOTICES

Meetings:

Judicial Conference Advisory Committee on—

Civil Procedure Rules, 793

Labor Department

See Occupational Safety and Health Administration

See Pension and Welfare Benefits Administration

NOTICES

Agency information collection activities:

Submission for OMB review; comment request, 793–794

National Oceanic and Atmospheric Administration

RULES

Fishery conservation and management:

Alaska; fisheries of Exclusive Economic Zone—

North Pacific Groundfish Observer Program, 715–720

Atlantic highly migratory species—

North Atlantic swordfish, 711–715

West Coast States and Western Pacific fisheries—

Pacific Coast groundfish, 907–935

PROPOSED RULES

Fishery conservation and management:

West Coast States and Western Pacific fisheries—

Pacific Coast groundfish, 935–989

NOTICES

Grants and cooperative agreements; availability, etc.:

Collaborative Science, Technology, and Applied Research 

Program, 742–747

Meetings:

Mid-Atlantic Fishery Management Council, 747–748

Reports and guidance documents; availability, etc.:

Climate Change Science Program; Strategic Plan, 748–753

Nuclear Regulatory Commission

NOTICES

Meetings; Sunshine Act, 797–798

Operating licenses, amendments; no significant hazards 

considerations; biweekly notices, 798–816

Applications, hearings, determinations, etc.:

Nuclear Fuel Services, Inc., 796–797

Sequoyah Fuels Corp., 797

Occupational Safety and Health Administration

NOTICES

Committees; establishment, renewal, termination, etc.:

Ergonomics National Advisory Committee; meeting, 794–

795

Overseas Private Investment Corporation

NOTICES

Meetings; Sunshine Act, 816

Pension and Welfare Benefits Administration

PROPOSED RULES

Employee Retirement Income Security Act:

Fiduciary responsibility; automatic rollovers, 991–994

Public Health Service

See Agency for Healthcare Research and Quality

See Centers for Disease Control and Prevention

See Health Resources and Services Administration

Securities and Exchange Commission

NOTICES

Agency information collection activities:

Submission for OMB review; comment request, 816–817

Self-regulatory organizations; proposed rule changes:

American Stock Exchange LLC, 818–819

National Association of Securities Dealers, Inc., 819–825

New York Stock Exchange, Inc., 826–836

OneChicago, LLC, 837–841

Philadelphia Stock Exchange, Inc., 841–842

Applications, hearings, determinations, etc.:

HSBC Bank plc, 817–818

Surface Mining Reclamation and Enforcement Office

PROPOSED RULES

Permanent program and abandoned mine land reclamation 

plan submissions:

Pennsylvania, 721–723

Treasury Department

NOTICES

Agency information collection activities:

Submission for OMB review; comment request, 842–843

Veterans Affairs Department

NOTICES

Meetings:

Women Veterans Advisory Committee, 843

Outer burial receptacle; private purchase in lieu of 

government-furnished graveliner in VA national 

cemetery; monetary allowance, 843–844

Separate Parts In This Issue

Part II

Environmental Protection Agency, 847–906

Part III

Commerce Department, National Oceanic and Atmospheric 

Administration, 907–989

Part IV

Labor Department, Pension and Welfare Benefits 

Administration, 991–994

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Contents V

Reader Aids

Consult the Reader Aids section at the end of this issue for 

phone numbers, online resources, finding aids, reminders, 

and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents 

LISTSERV electronic mailing list, go to http://

listserv.access.gpo.gov and select Online mailing list 

archives, FEDREGTOC-L, Join or leave the list (or change 

settings); then follow the instructions.

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the

Reader Aids section at the end of this issue.

VI Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Contents 

29 CFR 

Proposed Rules: 

2550.....................................992

30 CFR 

Proposed Rules: 

938.......................................721

40 CFR 

9...........................................848

52.........................................663

710.......................................848

723.......................................848

Proposed Rules: 

52.........................................723

47 CFR 

73.........................................670

76.........................................670

Proposed Rules: 

Ch. 1 (2 

documents) ..............723, 730

50 CFR 

635.......................................711

660.......................................908

679.......................................715

Proposed Rules: 

660.......................................936

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.

Rules and Regulations Federal Register

663

Vol. 68, No. 4

Tuesday, January 7, 2003

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52

[VA085/086/089/102/103—5046a;

FRL–7427–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Reorganization of and Revisions to 

Administrative and General Conformity 

Provisions; Documents Incorporated 

by Reference; Recodification of 

Existing SIP Provisions

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Virginia State Implementation Plan 

(SIP). The revisions consist of 

substantive and format changes to 

Virginia’s general administrative 

provisions and definitions, 

reorganization and recodification of the 

general conformity requirements and 

provisions, recodification of Virginia’s 

oxygenated gasoline regulation, and 

revisions to the list of technical 

documents which Virginia incorporates 

by reference into its air pollution 

control regulations. In this action, EPA 

is also correcting typographical errors 

and other errata currently found in the 

Identification of plan rule chart. EPA is 

approving these revisions in accordance 

with the requirements of the Clean Air 

Act.

DATES: This rule is effective on March 

10, 2003 without further notice, unless 

EPA receives adverse written comment 

by February 6, 2003. If EPA receives 

such comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect.

ADDRESSES: Written comments should 

be mailed to Harold A. Frankford, 

Mailcode 3AP20, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the documents relevant 

to this action are available for public 

inspection during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103; and 

the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford, (215) 814–2108, or 

by e-mail at frankford.harold@epa.gov. 

Please note that while questions may be 

posed via telephone and e-mail, formal 

comments must be submitted in writing, 

as indicated in the ADDRESSES section of 

this document.

SUPPLEMENTARY INFORMATION: 

I. Background 

Between April 30, 1997 and June 22, 

1999, the Commonwealth of Virginia 

submitted a series of formal revisions to 

its SIP. These SIP revisions consist of 

the addition of general administrative 

provisions and definitions (9 VAC 5, 

Chapter 170) submitted by Virginia on 

February 18, 1998, substantive and 

format revisions submitted by Virginia 

on March 4, 1998 regarding its general 

administrative provisions and 

definitions (9 VAC 5, Chapters 10 and 

20), a revision submitted by Virginia on 

April 20, 1998 which further 

reorganizes and recodifies the format of 

the Commonwealth’s general conformity 

requirements (9 VAC 5, Chapter 160), a 

revision submitted by Virginia on April 

30, 1997 which revises the format of 

Virginia’s oxygenated gasoline 

regulation (2 VAC 5, Chapter 480), and 

a revision submitted by Virginia on June 

22, 1999 which amends the list of 

documents which Virginia incorporates 

by reference (9 VAC 5, Chapter 20, 

Regulation 5–20–21). 

II. Summary of SIP Revisions 

A. Substantive Revisions to Virginia’s 

General Administrative Provisions and 

Definitions 

On February 18, 1998 and March 4, 

1998, Virginia submitted substantial 

revisions, both in terms of format and 

substance, to its general administrative 

provisions and definitions. Whereas 

Virginia’s current SIP-approved 

administrative provisions are located in 

Part II of VR–120 or 9 VAC 5 Chapter 

20, the revised structure splits these 

general administrative provisions into 

two major chapters—Chapter 20 

(General Provisions) and Chapter 170 

(Regulations for General 

Administration). The individual 9 VAC 

5–170 Sections are organized below:

Chapter 170 citation Regulation for general administration 

Former citation in 

Chapters 20 and 

160 

Part I Definitions 

5–170–10 ..................................................... Use of Terms ..................................................................................... 5–10–10

5–170–20 ..................................................... Terms Defined ................................................................................... 5–10–20

5–160–20

Part II General Provisions 

5–170–30 ..................................................... Applicability ........................................................................................ 5–20–10A.–C. 

5–170–60 ..................................................... Availability of Information .................................................................. 5–20–150

5–160–100

Part V Enforcement 

5–170–120 ................................................... Enforcement of Regulation, Permits and Orders .............................. 5–20–30A.–D. 

5–160–60

5–170–130A. ............................................... Right of Entry .................................................................................... 5–20–100

Part VI Board Actions 

5–170–150 ................................................... Local Ordinances .............................................................................. 5–20–60

5–170–160 ................................................... Conditions on Approvals ................................................................... 5–20–110

664 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

Chapter 170 citation Regulation for general administration 

Former citation in 

Chapters 20 and 

160 

5–170–170 ................................................... Considerations for Approval Actions ................................................. 5–20–140

In the February 18, 1998 and March 

4, 1998 submittals, Virginia also adds or 

revises the following definitions of 

terms: 

Added: Public Hearing, Regulation of 

the Board, These Regulations, Virginia 

Register Act. 

Revised: Administrative Process Act, 

Consent Agreement, Consent Order, 

Director, Emergency Special Order, 

Good Engineering Practice, Order, 

Owner, Person, Pollutant, Source, 

Special Order, Virginia Air Pollution 

Control Law, Volatile Organic 

Compounds. 

No Wording Changes; Revised 

Citations Only: Virginia has recodified 

the following definitions from 9 VAC 5–

10–20 to 9 VAC 5–170–20: 

Administrative Process Act, 

Confidential Information, Variance, and 

Virginia Register Act. In addition, 

Virginia has placed duplicate versions 

of the following SIP definitions found 

elsewhere in 9 VAC 5 into Regulation 9 

VAC 5–170–20: Air Pollution, Board, 

Department, Director, Emergency, 

Federal Clean Air Act, Locality, Virginia 

Air Pollution Control Law, and Virginia 

Motor Vehicle Emissions Control Law.

In addition to the recodification, 

Virginia made substantive revisions to 

the following provisions when 

compared to the wording of the 

comparable SIP-approved provisions 

formerly located in 9 VAC 5, Chapter 

20: 5–170–30, 5–170–60, 5–170–120, 5–

170–150, 5–170–160, and 5–170–170. 

Virginia revised the wording of these 

provisions to clarify the intent of the 

rules, or to conform with the statutory 

provisions of the Virginia Air Pollution 

Control Law. Virginia has also revised 

several definitions found in Regulation 

5–170–20, also to clarify the intent of 

the term, or in order to conform with the 

wording and intent of the state statute. 

Virginia revised the definition of the 

term ‘‘volatile organic compound’’ to 

add perchloroethylene as an exempt 

VOC solvent, and substantively revised 

the wording of the definition of 

‘‘person’’ when compared to that of the 

SIP-approved definition. 

B. Revisions to Virginia’s General 

Conformity Provisions 

On April 20, 1998, Virginia revised its 

SIP-approved General Conformity rules 

(9 VAC 5 Chapter 160) which had been 

incorporated into the Virginia SIP at 40 

CFR Section 52.2420(c)(118). These 

rules are revised by: 

1. Revising 9 VAC 5–160–10 

(General), Section B. 

2. Revising the definition of 

‘‘Emergency’’, as defined in 9 VAC 5–

160–20. 

3. Removing definitions and 

provisions from Chapter 160 which are 

now duplicated in Chapter 170. The 

definitions are for the terms 

Administrative Process Act, 

Confidential Information, Consent 

Agreement, Consent Order, Emergency 

Special Order, Formal Hearing, Order, 

Party, Public Hearing, Special order, 

Variance, and Virginia Register Act. The 

provisions are: Enforcement of 

Regulations and Orders (9 VAC 5–160–

60), and Availability of Information (9 

VAC 5–160–100). 

4. Removing from Chapter 160 the 

following additional provisions: 

Establishment of Regulations and 

Orders (9 VAC 5–160–50), Hearings and 

Proceedings (9 VAC 5–160–70), and 

Appeals (9 VAC 5–160–100). 

C. Documents Being Incorporated by 

Reference 

On June 22, 1999, Virginia submitted 

revisions to the list of Federal, 

technical, and scientific documents 

which Virginia incorporates by 

reference. Virginia lists these documents 

in 9 VAC 5, Chapter 20 (General 

Provisions), Regulation 5–20–21. In this 

submittal, Virginia incorporates by 

reference the following technical and 

scientific documents: 

1. D323–94, ‘‘Standard Test Method 

for Vapor Pressure of Petroleum 

Products (Reid Method)’’ from Section 

5, Volume 05.01 of the 1989 Annual 

Book of American Society for Testing 

Materials (ASTM) Standards. (Replacing 

D323–82) 

2. D97–93, ‘‘Standard Test Method for 

Pour Point of Premium Oils’’ from 

Section 5, Volume 05.01 of the 1989 

Annual Book of ASTM Standards. 

(Replacing D97–87) 

3. National Fire Prevention 

Association (NFPA) 385, Standard for 

Tank Vehicles for Flammable and 

Combustible Limits, 1990 Edition. 

(Replacing the 1985 Edition) 

4. NFPA 30, Flammable and 

Combustible Liquids Code. 1993 Edition 

(Replacing the 1987 Edition).

5. NFPA 30A, Automotive and Marine 

Service Station Code, 1993 Edition 

(Replacing the 1987 Edition). 

D. Recodification of Virginia’s 

Oxygenated Gasoline Regulations 

On April 30, 1997, Virginia submitted 

amendments to the Commonwealth’s 

oxygenated gasoline regulations as a 

revision to the SIP. In a separate action, 

on February 17, 2000 (65 FR 8051), EPA 

had approved substantive revisions to 

Regulation 2 VAC 5–480–20 as a 

revision to the SIP. By this action, EPA 

is approving revisions to the SIP which 

recodify Virginia’s oxygenated gasoline 

regulation from VR 115–04–28 Sections 

1 and 3 through 8 to 2 VAC 5 Chapter 

480, Regulations 2 VAC 5–480–10, and 

5–480–30 through 5–480–80, 

respectively. These revisions are 

summarized in the following chart:

2 VAC 5 CHAPTER 480—REGULATION GOVERNING THE OXYGENATION OF GASOLINE

New SIP citation Title Current SIP citation 

5–480–10 ............................................................. Definitions ..................................................................................... VR115–04–28, section 1. 

5–480–30 ............................................................. Minimum oxygenate content ......................................................... VR115–04–28, section 3. 

5–480–40 ............................................................. Nature of oxygenates ................................................................... VR115–04–28, section 4. 

5–480–50 ............................................................. Recordkeeping transfer requirements .......................................... VR115–04–28, section 5. 

5–480–60 ............................................................. Gasoline pump labeling ................................................................ VR115–04–28, section 6. 

5–480–70 ............................................................. Sampling, testing and oxygen content calculations ..................... VR115–04–28, section 7. 

5–480–80 ............................................................. Compliance and enforcement ....................................................... VR115–04–28, section 8. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 665

III. EPA’s Evaluation of SIP Revisions 

A. Definitions 

EPA has reviewed Virginia’s new and 

revised definitions and has determined 

that they are consistent with the 

statutory provisions of the Virginia Air 

Pollution Control Law and the 

comparable requirements of the Clean 

Air Act and 40 CFR part 51. Virginia 

revised the wording of several 

definitions in order to improve their 

clarity and intent. Virginia also has 

substantially revised the definition of 

‘‘Person’’ in order to comply with 

revisions to ‘‘Person’’ found in chapter 

13, section 10.1.1300 of Virginia’s Air 

Pollution Control Law. EPA has 

determined that the same groups 

covered by the current SIP definition of 

‘‘Person’’ are still covered under the 

wording of the revised definition, and 

therefore concludes that the revised 

definition of ‘‘Person’’ is equivalent in 

scope to the current SIP definition. 

Virginia has also revised the definition 

of ‘‘Volatile Organic Compound’’ by 

including perchloroethylene to the list 

of exempt compounds. EPA has 

determined that Virginia’s revised 

definition is consistent with the 

definition of ‘‘volatile organic 

compound’’ found at 40 CFR 51.100(s). 

B. New and Revised Administrative 

Provisions 

EPA has reviewed the revisions to the 

administrative regulations of 9 VAC 5, 

Chapter 170, and has determined that 

the revised wording improves the clarity 

and intent of the provisions, streamlines 

the process of enforcing regulations, 

permits and orders, and defines the 

procedures for determining the 

applicability of a provision where 

conflicts between provisions apply. The 

revised regulations strengthen the 

public hearing process which local 

agencies must follow, and provide 

additional assurances that local 

ordinances will conform with the 

applicable state requirements.

C. Revised General Conformity 

Provisions 

Virginia had amended its general 

conformity provisions so that the 

general and administrative provisions in 

9 VAC 5 Chapter 160 would be 

combined with the identical provisions 

of 9 VAC 5, Chapter 170. Many of the 

definitions and administrative 

provisions in the SIP-approved version 

of 9 VAC 5, Chapter 160 make specific 

references to Federal agencies and their 

obligation to comply with state 

requirements. The comparative 

requirements of 9 VAC 5 Chapter 170 

make no reference to Federal agencies. 

Instead, the term ‘‘Owner’’ is used in the 

place of ‘‘Federal Agencies’’. However, 

the term ‘‘Owner’’ refers to ‘‘Person’’

which by definition includes 

‘‘Governmental Bodies.’’ EPA has 

determined this to be an equivalent 

substitution for ‘‘Federal Agency.’’ In 

addition, the term ‘‘Owner’’ also refers 

to ‘‘Bodies Politic,’’ which EPA 

interprets to include the Federal 

Government and its individual agencies. 

The term ‘‘Department’’ found in the 9 

VAC 5–160 provisions is not found in 

the consolidated 9 VAC 5–170 rules—

only the term ‘‘Board.’’ The SIP, 

however, has historically only conferred 

power to the Board. In addition, 40 CFR 

part 93 does not require ‘‘Department’’

to be included in Virginia’s general 

conformity rules. 

D. EPA’s Evaluation of Revised 

Incorporation by Reference Provisions 

In its support document 

accompanying the June 1999 SIP 

revision submittal, Virginia explained 

that the technical documents found in 

Regulation 9 VAC 5–20–21 are used to 

make technical evaluations related to 

new source review and emission 

standards for volatile organic 

compounds. Virginia revised the five 

documents listed above to reflect the 

latest available edition. EPA agrees that 

states should use the latest available 

technical documents to assist in their 

decisionmaking, and therefore finds 

these revisions to be acceptable. 

E. Recodification of Virginia’s 

Oxygenated Gasoline Regulations 

The revisions to 2 VAC 5, Chapter 

480, sections 2–480–10 and 2–480–30 

through 2–480–80 consist only of 

changes to the citation format of 

Virginia’s oxygenated gasoline rules. 

There are no substantive wording 

changes to the current SIP-approved 

provisions. 

F. Impact of Virginia’s Audit Privilege 

and Immunity Laws on These SIP 

Revisions 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code sec. 10.1–1198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information: (1) 

That are generated or developed before 

the commencement of a voluntary 

environmental assessment; (2) that are 

prepared independently of the 

assessment process; (3) that demonstrate 

a clear, imminent and substantial 

danger to the public health or 

environment; or (4) that are required by 

law. 

On January 12, 1997, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

Law, Va. Code sec. 10.1–1198, precludes 

granting a privilege to documents and 

information ‘‘required by law,’’

including documents and information 

‘‘required by Federal law to maintain 

program delegation, authorization or 

approval,’’ since Virginia must ‘‘enforce 

Federally authorized environmental 

programs in a manner that is no less 

stringent than their Federal 

counterparts. . . .’’ The opinion 

concludes that ‘‘[r]egarding section 

10.1–1198, therefore, documents or 

other information needed for civil or 

criminal enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’

Virginia’s Immunity Law, Va. Code 

sec. 10.1–1199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by Federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1997 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any Federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

666 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

Clean Air Act, including, for example, 

sections 113, 167, 205, 211 or 213, to 

enforce the requirements or prohibitions 

of the state plan, independently of any 

state enforcement effort. In addition, 

citizen enforcement under section 304 

of the Clean Air Act is likewise 

unaffected by this, or any, state audit 

privilege or immunity law. 

IV. Corrections to the Chart in 40 CFR 

52.2020(c) Summarizing the Approved 

SIP Rules 

On April 21, 2000 (65 FR 21513), EPA 

approved the revised incorporation by 

reference format for 40 CFR part 52, 

subpart VV, § 52.2420(c). This chart lists 

those Virginia regulations which EPA 

has incorporated by reference into the 

Virginia SIP as well as their effective 

dates in the Commonwealth. After 

review of the chart as published in the 

April 21, 2000 Federal Register, the 

Virginia Department of Environmental 

Quality informed EPA that the chart as 

published contained typographical 

errors, omissions, and inaccurate 

information. On July 6, 2000 (65 FR 

41592) and July 14, 2000 (65 FR 43840), 

correction notices were published 

which corrected some, but not all, of the 

incorrect entries. This action corrects 

the remaining inaccurate entries to the 

chart in § 52.2420(c). These corrections 

revise information to air quality 

provisions which are not otherwise 

revised by the other SIP revisions being 

evaluated by EPA in this action. The 

information consists of corrected titles 

of the air quality regulations, corrected 

VAC citations, and corrected effective 

dates of some provisions, and are 

summarized below:

Federal Register

page (65 FR) Entry Column title Description of correction 

21321 ...................... Chapter 20 General Provisions (Title) Add ‘‘[Part II]’’ after ‘‘Chapter 20 General Provisions’’. 

5–20–160 .................................... State Effective Date .................... Remove the date ‘‘7/1/97’’. 

5–20–170 .................................... State Effective Date .................... Remove the date ‘‘7/1/97’’. 

5–20–180 .................................... State Effective Date .................... Remove the date ‘‘7/1/97’’. 

21322 ...................... 5–20–205 .................................... State Effective Date .................... Replace ‘‘2/1/97’’ with ‘‘1/1/97’’. 

21323 ...................... 5–40–50 ...................................... State Effective Date .................... Replace ‘‘7/1/97’’ with ‘‘4/17/95’’. 

5–40–310A.–E. ............................ Title/Subject ................................. Replace ‘‘Dioxide’’ with ‘‘Oxides’’. 

21324 ...................... 4–40–450 .................................... State citation (9 VAC 5) .............. Replace ‘‘4–40–450’’ with ‘‘5–40–450’’. 

5–40–710 .................................... Explanation [Former SIP Citation] Replace ‘‘120–04–614.’’ with ‘‘120–04–0614.’’. 

5–40–720 .................................... Explanation [Former SIP Citation] Replace ‘‘120–04–0613.’’ with ‘‘120–04–0615.’’. 

21340 ...................... 5–80–10/Article 6 ........................ State citation (9 VAC 5) .............. Remove ‘‘Article 6’’. 

21342 ...................... Article 9 Permits—Major Stationary Sources and Major Modifications 

Located in Nonattainment Areas (Title) 

Add ‘‘[ ]’’ around ‘‘120–08–03’’. 

5–80–2000 .................................. Explanation [Former SIP Citation] Replace ‘‘03A.’’ with ‘‘.03A’’. 

5–80–2080 .................................. Explanation [Former SIP Citation] Replace ‘‘.03I.’’ with ‘‘.03I’’. 

21343 ...................... 5–9–150 ...................................... State citation (9 VAC 5) .............. Replace ‘‘5–9–150’’ with ‘‘5–91–150’’. 

21344 ...................... 4–91–450 .................................... State citation (9 VAC 5) .............. Replace ‘‘4–91–450’’ with ‘‘5–91–450’’. 

4–91–460 .................................... State citation (9 VAC 5) .............. Replace ‘‘4–91–460’’ with ‘‘5–91–460’’. 

21346 ...................... Chapter 160 General Conformity 

Rules (Title).

State Effective Date .................... Remove ‘‘1/24/97’’. 

Similarly, on October 19, 2000 (65 FR 

62626), EPA approved a revision to 9 

VAC 5 Chapter 30 (Ambient Air Quality 

Standards). This revision removed 

section 9 VAC 5–30–20, the old ambient 

air quality standards for total suspended 

particulate matter (TSP) from the 

Virginia SIP. The intent of this action 

was to remove the entry for section 9 

VAC 5–30–20 from the chart in 40 CFR 

52.2420(c). This action will remove 

section 9 VAC 5–30–20 from the chart. 

V. Final Action 

EPA is approving the addition of 9 

VAC 5, Chapter 170, as well as the 

revisions to 9 VAC 5 Chapters 10, 20, 

and 160 and 2 VAC 5, Chapter 480 as 

revisions to the Virginia SIP. EPA is also 

correcting the typographical errors, 

omissions and incorrect information 

found in the chart of previouslyapproved SIP actions found at 40 CFR 

52.2420(c). 

EPA is publishing this rule without 

prior proposal because the Agency 

views this as a noncontroversial 

amendment and anticipates no adverse 

comment. However, in the ‘‘Proposed 

Rules’’ section of today’s Federal 

Register, EPA is publishing a separate 

document that will serve as the proposal 

to approve the SIP revision if adverse 

comments are filed. This rule will be 

effective on March 10, 2003 without 

further notice unless EPA receives 

adverse comment by February 6, 2003. 

If EPA receives adverse comment, EPA 

will publish a timely withdrawal in the 

Federal Register informing the public 

that the rule will not take effect. EPA 

will address all public comments in a 

subsequent final rule based on the 

proposed rule. EPA will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. Please note that 

if EPA receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

VI. Administrative Requirements 

A. General Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 667

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). This rule also does not 

have tribal implications because it will 

not have a substantial direct effect on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. In reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. In this 

context, in the absence of a prior 

existing requirement for the State to use 

voluntary consensus standards (VCS), 

EPA has no authority to disapprove a 

SIP submission for failure to use VCS. 

It would thus be inconsistent with 

applicable law for EPA, when it reviews 

a SIP submission, to use VCS in place 

of a SIP submission that otherwise 

satisfies the provisions of the Clean Air 

Act. Thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2).

C. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by March 10, 2003. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action to revise 

9 VAC 5 chapters 10, 20, 30, 40, 80, 91, 

160 and 170, and 2 VAC 5 chapter 480 

may not be challenged later in 

proceedings to enforce its requirements. 

(See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds.

Dated: December 17, 2002. 

Donald S. Welsh, 

Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED] 

1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart VV—Virginia

2. In § 52.2420, the table in paragraph 

(c) is amended: 

a. Under Chapter 10 by revising the 

entry for 5–10–10; adding an entry for 

5–10–20 at the end of the third entry for 

5–10–20; and removing entry VR120–

01–02. 

b. Under Chapter 20 by revising 

entries 5–20–160, 5–20–170, 5–20–180, 

and 5–20–205; and removing entries 5–

20–30A.–D., 5–20–60, 5–20–100, 5–20–

110, 5–20–140, 5–20–150, VR120–02–

14B. 

c. Under Chapter 30 by removing 

entry 5–30–20. 

d. Under Chapter 40 by removing 

entry 4–4–450 and revising entries 5–

40–50, 5–40–310A.–E., 5–40–710, and 

5–40–720. 

e. Under Chapter 80 by revising 

entries 5–80–10/Article 6, 5–80–2000, 

and 5–80–2080. 

f. Under Chapter 91 by removing 

entries 5–9–150, 4–91–450, and 4–91–

460. 

g. Under Chapter 160 by revising 

entries for 5–160–10 and 5–160–20; and 

removing entries 5–160–50, 5–160–60, 

5–160–70, 5–160–90, and 5–160–100. 

h. By adding a new Chapter 170 

including headings, with numerical 

entries for Part I, Part II, Part V, and Part 

VI. 

i. Under 2 VAC 5 Chapter 480 by 

removing entries VR115–04–28, Sec. 1, 

VR115–04–28, Sec. 3, VR115–04–28, 

Sec. 4, VR115–04–28, Sec. 5, VR115–

04–28, Sec. 6, VR115–04–28, Sec. 7 and 

VR115–04–28, Sec. 8; and adding 

entries 5–480–10, 5–480–30, 5–480–40, 

5–480–50, 5–480–60, 5–480–70, and 5–

480–80.

§ 52.2420 Identification of plan.

* * * * *

(c) * * *

668 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

EPA—APPROVED REGULATIONS IN THE VIRGINIA SIP 

State citation (9 

VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] 

Chapter 10 General Definitions [Part 1]

5–10–10 .................. General .................................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

120–02–01 Sections 5–10–10A, B and C 

are revised 

*******

5–10–20 .................. Terms Defined ......................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Terms Added—Public hearing: Regulations for the Control and Abatement of 

Air Pollution, Regulation of the Board, 

These regulations. 

Terms Revised—Good Engineering Practice, Person, Volatile organic compound. 

Terms Deleted (moved to 9 VAC 5–170–

20)—Administrative Process Act, Air 

quality control region, Air quality maintenance area, Confidential information, 

Consent agreement, Consent order, 

Emergency special order, Order, Special order, Variance. 

*******

Chapter 20 General Provisions

*******

5–20–160 ................ Registration .............................. 4/17/95 .................... 4/21/00 65 FR 

21320.

120–02–31

5–20–170 ................ Control Programs ..................... 4/17/95 .................... 4/21/00 65 FR 

21320.

120–02–32

5–20–180 ................ Facility and Control Equipment 

Maintenance or Malfunction 

4/17/95 .................... 4/21/00 65 FR 

21320.

120–02–34

*******

5–20–205 ................ Prevention of Significant Deterioration Areas.1/1/97 ...................... 3/23/98 65 FR 

13795.

Former Appendix L—Effective 2/1/92. 

*******

Chapter 40 Existing Stationary Sources [Part IV]

Part I Special Provisions

*******

5–40–50 .................. Notification, Records and Reporting.4/17/95 .................... 4/21/00 65 FR 

21320.

120–04–05

*******

Part II Emission Standards

*******

Article 4 General Process Operations [Rule 4–4]

5–40–310A.–E ........ Standard for Nitrogen Oxides .. 1/1/93 ...................... 4/28/99 64 FR 

22792.

120–04–0408

*******

Article 6 Rubber Tire Manufacturing Operations [Rule 4–6]

*******

5–40–710 ................ Facility and Control Equipment 

Maintenance or Malfunction 

4/17/95 .................... 4/21/00 65 FR 

21320.

120–04–0614

5–40–720 ................ Permits ..................................... 4/17/95 .................... 4/21/00 65 FR 

21320.

120–04–0615

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 669

EPA—APPROVED REGULATIONS IN THE VIRGINIA SIP—Continued

State citation (9 

VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] 

*******

Chapter 80 Permits for Stationary Sources [Part VIII]

5–80–10/Article 6 .... New and Modified Stationary 

Sources.

4/17/95 .................... 4/21/00 65 FR 

21320.

120–08–01

*******

Article 9 Permits—Major Stationary Sources and Major Modifications Located in Nonattainment Areas. [120–08–03]

5–80–2000 .............. Applicability .............................. 1/1/93 ......................

4/1/99 ......................

4/21/00 65 FR 

21320.

.03A (9/21/99, 64 FR 51047). 

*******

5–80–2080 .............. Compliance determination and 

verification by performance 

testing 

1/1/93 ......................

4/1/99 ......................

4/21/00 65 FR 

21320.

.03I (9/21/99, 64 FR 51047). 

*******

Chapter 160 General Conformity Rules 1/24/97

5–160–10 ................ General. ................................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Paragraph 5–160–10 is revised. 

5–160–20 ................ Terms Defined ......................... 1/1/97 ......................

1/1/98 ......................

1/7/03 [Insert Federal Register page 

citation].

Terms revised—Emergency. 

Terms deleted—Administrative Process 

Act, Confidential information, Consent 

agreement, Consent order, Emergency 

special order, Formal hearing, Order, 

Party, Public hearing, Special order, 

Variance, Virginia Register Act. 

*******

Chapter 170 Regulation for General Administration

Part I Definitions

5–170–10. ............... Use of Terms ........................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Split out from 9 VAC 5–10–10

5–170–20. ............... Terms Defined ......................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Split out from 9 VAC 5–10–20 and 5–

160–20

Terms Added—Public hearing, Regulation of the Board. 

Terms Revised from 4/17/95 version—

Consent agreement, Consent order, 

Emergency special order, Order, 

Owner, Person, Pollutant, Special 

Order, Source. 

Part II General Provisons

5–170–30 ................ Applicability .............................. 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Split out from 9 VAC 5–20–10

5–170–60. ............... Availability of Information ......... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Replaces 9 VAC 5–20–150 and 5–160–

100. 

Part V Enforcement

5–170–120A.–C ...... Enforcement of Regulations, 

Permits and Orders 

1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Replaces 9 VAC 5–20–30A.–D. and 5–

160–60. 

5–170–130A ............ Right of Entry ........................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Replaces 9 VAC 5–20–100. 

670 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

EPA—APPROVED REGULATIONS IN THE VIRGINIA SIP—Continued

State citation (9 

VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] 

Part VI Board Actions

5–170–150 .............. Local Ordinances ..................... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Replaces 9 VAC 5–20–60. 

5–170–160 .............. Conditions on Approvals .......... 1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Replaces 9 VAC 5–20–110. 

5–170–170 .............. Considerations for Approval 

Actions.

1/1/98 ...................... 1/7/03 [Insert Federal Register page 

citation].

Replaces 9 VAC 5–20–140. 

*******

2 VAC 5 Chapter 480 Regulation Governing the Oxygenation of Gasoline

5–480–10 ................ Definitions ................................ 11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 1. 

*******

5–480–30 ................ Minimum oxygenate content .... 11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 3. 

5–480–40 ................ Nature of oxygenates .............. 11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 4. 

5–480–50 ................ Record keeping and transfer 

requirements.

11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 5. 

5–480–60 ................ Gasoline pump labeling ........... 11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 6. 

5–480–70 ................ Sampling, testing and oxygen 

content calculations 

11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 7. 

5–480–80 ................ Compliance and enforcement .. 11/1/93; Recodified 

4/17/95.

1/7/03 [Insert Federal Register page 

citation].

VR115–04–28, Sec. 8. 

* * * * *

3. Section 52.2423 is revised by 

adding paragraph (r) to read as follows:

§ 52.2423 Approval status.

* * * * *

(r) EPA approves as part of the 

Virginia State Implementation Plan the 

revised references to the documents 

listed in Chapter 20, Section 9 VAC 5–

20–21 (formerly Appendix M), Sections 

E.4.a.(1), E.4.a.(2), and E.7.a.(1) through 

E.7.a.(3), of the Virginia Regulations for 

the Control and Abatement of Air 

Pollution submitted by the Virginia 

Department of Environmental Quality 

on June 22, 1999.

[FR Doc. 03–93 Filed 1–6–03; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 73 and 76 

[MM Docket No. 98–204; FCC 02–303] 

RIN 4223 

Review of the Commission’s 

Broadcast and Cable Equal 

Employment Opportunity Rules and 

Policies

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: In this document the 

Commission adopts a new broadcast 

Equal Employment Opportunity (EEO) 

rule in response to the decision of the 

U.S. Court of Appeals for the District of 

Columbia Circuit in MD/DC/DE 

Broadcasters Association v. FCC. The 

Commission also amends and modifies 

their EEO rules for multichannel video 

programming distributors (MVPDs). The 

EEO rules make clear that broadcasters 

and MVPDs are not required to employ 

a staff that reflects the racial or other 

composition of the community or to use 

racial preferences in hiring. The 

intended effect is to adopt effective EEO 

rules for the broadcasting and MVPD 

industries.

DATES: Effective March 10, 2003.

FOR FURTHER INFORMATION CONTACT:

Lewis Pulley, Media Bureau, (202) 418–

1456 or via e-mail at lpulley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Media Bureau’s Second 

Report and Order (‘‘2R&O’’) MM 98–

204; FCC 02–303, adopted November 7, 

2002 and released November 20, 2002. 

The complete text of this 2R&O is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Center, Room CY–A257, 

445 12th Street, SW., Washington, DC 

and may also be purchased from the 

Commission’s copy contractor, Qualex 

International, Portals II, 445 12th Street, 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 671

SW., Room CY–B–402, Washington, DC 

20554, telephone (202) 863–2893, 

facsimile (202) 863–2898, or via e-mail 

qualexint@aol.com.

Synopsis of Second Report and Order 

I. Introduction 

1. In this 2R&O, we adopt a new 

broadcast equal employment 

opportunity (‘‘EEO’’) rule in response to 

the decision of the U.S. Court of 

Appeals for the District of Columbia 

Circuit in MD/DC/DE Broadcasters 

Association v. FCC, 236 F.3d 13, 

rehearing den. 253 F.3d 732 (D.C. Cir. 

2001), cert. denied, 122 S.Ct. 920 (2002) 

(‘‘Association’’). In addition, we amend 

our EEO rules and policies applicable to 

cable operators, and other multichannel 

video programming distributors 

(‘‘MVPDs’’), to conform them, as much 

as possible, to the broadcast EEO rule. 

The new broadcast EEO rule and 

modified EEO rules for MVPDs, adopted 

herein, emphasize outreach in 

recruitment to all qualified job 

candidates and ban discrimination on 

the basis of race, color, religion, national 

origin or gender. We are also issuing a 

Third Notice of Proposed Rule Making

(‘‘3rd NPRM’’) requesting comment as to 

the applicability of our rules with 

respect to part-time employees. 

II. Background 

2. We have administered regulations 

governing the EEO responsibilities of 

broadcast licensees since 1969, and of 

cable television operators since 1972. 

Our responsibilities in this area were 

codified with respect to cable television 

operators in 1984. They were further 

codified with respect to television 

broadcast licensees and extended to 

other MVPDs in 1992. In 1998, the U.S. 

Court of Appeals for the District of 

Columbia Circuit held that the 

Commission’s EEO program 

requirements for broadcasters were 

unconstitutional in Lutheran ChurchMissouri Synod v. FCC.

3. In 1998, we issued a Notice of 

Proposed Rule Making (‘‘NPRM’’), (63 

FR 66104, December 1, 1998), for the 

purpose of adopting EEO rules for 

broadcast licensees and MVPDs 

consistent with the Court’s decision in 

Lutheran Church. In 2000, we adopted 

new EEO program requirements for 

broadcasters, Report and Order

(‘‘R&O’’), (65 FR 7448, February 15, 

2000). Substantially the same program 

requirements were applied to MVPDs. 

The Commission explained that the new 

rules required more ‘‘than merely 

refraining from discrimination.’’ They 

also required broadcasters and MVPDs 

‘‘to reach out in recruiting new 

employees beyond the confines of their 

circle of business and social contacts to 

all sectors of their communities 

[because] * * * repeated hiring without 

broad outreach may unfairly exclude 

minority and women job candidates 

***.’’ The Commission concluded 

that nondiscrimination in hiring was 

not enough when not all potential 

applicants have had a fair opportunity 

to apply. ‘‘Outreach in recruitment must 

be coupled with a ban on discrimination 

to effectively deter discrimination and 

ensure that a homogenous workforce 

does not simply replicate itself through 

an insular recruitment and hiring 

process.’’

4. The new rule contained two 

primary requirements—a prohibition on 

discrimination based on race, color, 

religion, national origin or gender in 

hiring, and a requirement that 

broadcasters reach out in recruiting new 

employees to ensure that all qualified 

individuals had an opportunity to apply 

for and be considered as job candidates. 

The core of the recruitment requirement 

was that broadcasters widely 

disseminate information concerning all 

job vacancies. The Commission 

concluded that this basic requirement 

‘‘is essential to meaningful outreach.’’

The Commission left it largely to 

broadcasters’ discretion concerning how 

they would fulfill this requirement, so 

long as their procedures were sufficient 

to ensure wide dissemination of 

information about all job openings to 

the entire community. 

5. In addition to the basic requirement 

of wide dissemination of information 

concerning job openings, the new rule 

provided broadcast licensees with two 

recruitment options. Under ‘‘Option A,’’

they were required to undertake two 

types of supplemental recruitment 

measures. The first measure required 

licensees to provide notification of job 

vacancies to any recruitment 

organization that requested such notice 

from the broadcaster. The second 

supplemental measure under Option A 

required broadcasters to participate in 

additional recruitment activities beyond 

the traditional recruitment that occurs 

with individual vacancies. These 

additional measures were to be selected 

from an open-ended menu of types of 

activities that included: Job fairs, job 

banks, scholarship programs, and 

community events related to 

employment opportunities in the 

industry, among others. Broadcasters 

were permitted to comply with the 

supplemental requirement by 

participating in activities other than the 

listed ones so long as they were 

designed to disseminate information 

about employment opportunities to 

candidates who might otherwise not 

learn of them. Broadcasters who 

selected Option A were required to 

maintain, but not routinely submit to 

the Commission, records documenting 

their compliance with the wide 

dissemination and supplemental 

recruitment requirements. 

6. The Commission also adopted an 

‘‘Option B’’ for recruitment that 

permitted licensees to forego the 

supplemental recruitment measures 

required under Option A and to design 

their own outreach program to suit their 

needs, as long as they could 

demonstrate that their program is 

inclusive, i.e., that it widely 

disseminated job vacancies throughout 

the local community. The court held, 

however, that Option B was 

unconstitutional under the equal 

protection component of the Due 

Process Clause of the Fifth Amendment. 

The Commission filed for hearing and 

rehearing en banc, arguing that Option 

B was not essential to achieving its goal 

of ensuring that broadcasters engage in 

broad outreach in recruiting new 

employees and that it had made plain 

its intent that Option B be severable. 

The court denied rehearing. 

7. We issued the Second Notice of 

Proposed Rulemaking (‘‘2NPRM’’), (67 

FR 1704, January 14, 2002) to request 

public comment on the adoption of new 

broadcast and MVPD EEO rules 

consistent with Association. An En 

Banc open hearing on the proposed 

rules was held before the full 

Commission on June 24, 2002. Having 

reviewed the suggestions contained in 

the comments submitted, both in 

writing and at the En Banc hearing, we 

are adopting new EEO rules that consist 

primarily of the elements of our former 

rules that the Court upheld as 

constitutional in Association, with 

modifications.

III. Summary 

8. In this order, we adopt new 

outreach requirements applicable to 

broadcast and MVPDs. We are also 

retaining the nondiscrimination rules 

applicable to broadcasters and MVPDs. 

9. The following is a summary of the 

three-pronged outreach requirement we 

are adopting as it relates to broadcasters: 

Prong 1: Widely disseminate 

information concerning each full-time 

(30 hours or more) job vacancy, except 

for vacancies filled in exigent 

circumstances; 

Prong 2: Provide notice of each fulltime job vacancy to recruitment 

organizations that have requested such 

notice; and 

Prong 3: Complete two (for broadcast 

employment units with five to ten fullVerDate Dec<13>2002 16:01 Jan 06, 2003 Jkt 200001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\07JAR1.SGM 07JAR1
672 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

time employees or that are located in 

smaller markets) or four (for 

employment units with more than ten 

full-time employees located in larger 

markets) longer-term recruitment 

initiatives within a two-year period. 

The following is a summary of 

recordkeeping and reporting 

requirements: 

(a) Collect, but not routinely submit to 

the Commission: (i) Listings of all fulltime job vacancies filled by the station 

employment unit, identified by job title; 

(ii) for each such vacancy, the 

recruitment sources used to fill the 

vacancy (including, if applicable, 

organizations entitled to notification, 

which should be separately identified), 

identified by name, address, contact 

person and telephone number; (iii) 

dated copies of all advertisements, 

bulletins, letters, faxes, e-mails, or other 

communications announcing vacancies; 

and (iv) documentation necessary to 

demonstrate performance of the Prong 3 

menu options, e.g., job fairs, mentoring 

programs; (v) the total number of 

interviewees for each vacancy and the 

referral source for each interviewee; and 

(vi) the date each job was filled and the 

recruitment source that referred the 

hiree. 

(b) Place in the station public file 

annually a report including the 

following: (i) A list of all full-time 

vacancies filled during the preceding 

year, identified by job title; (ii) 

recruitment source(s) used to fill those 

vacancies (including organizations 

entitled to notification of vacancies 

pursuant to Prong 2), including the 

address, contact person, and telephone 

number of each source; (iii) a list of the 

recruitment sources that referred the 

people hired for each full-time vacancy; 

(iv) data reflecting the total number of 

persons interviewed for full-time 

vacancies during the preceding year and 

the total number of interviewees 

referred by each recruitment source; and 

(v) a list and brief description of Prong 

3 menu options implemented during the 

preceding year. 

(c) Submit the station’s EEO public 

file report to the Commission as part of 

the renewal application and midway 

through the license term for the 

Commission’s mid-term review for those 

stations subject to mid-term review 

(television stations with five or more 

full-time employees and radio stations 

with more than ten full-time 

employees). EEO public file reports for 

the preceding two year period will be 

required because broadcasters have two 

years in which to complete the Prong 3 

menu options. Broadcasters must also 

post the current EEO public file report 

on their web site, if they have one. 

10. The same requirements will apply 

to MVPDs, except as necessary to 

comply with different statutory 

requirements. The Commission is also 

required to certify that MVPD 

employment units are in compliance 

with the EEO requirements on an 

annual basis. To comply with the Prong 

3 requirements, MVPD employment 

units with six to ten full-time employees 

and employment units located in 

smaller markets will be required to 

undertake one recruitment initiative 

each year and larger employment units 

located in larger markets two 

recruitment initiatives per year. MVPD 

employment units are not subject to a 

renewal process at the Commission. 

Pursuant to section 634(e)(2) of the 

Communications Act, the Commission 

is required to conduct a more thorough 

review of each cable employment unit’s 

EEO compliance every five years. 

Hence, MVPDs with six or more fulltime employees will submit a copy of 

their most recent EEO public inspection 

file report to the Commission every five 

years.

11. The Commission has implemented 

the MVPD annual reporting requirement 

under section 634 by FCC Forms 395–

A (cable operators) and 395–M (other 

MVPDs). We will create a new Form 

396–C for all MVPDs that will 

encompass the same information 

concerning the unit’s EEO outreach 

efforts that was formerly required in 

FCC Forms 395–A and 395–M. The 

prior forms were also used to collect 

data concerning the race/ethnicity and 

gender of the unit’s workforce. The form 

we are adopting today will not 

encompass such data because, as 

indicated below, we will defer action on 

the collection of workforce data. 

12. We are not acting at this time on 

issues raised in the 2NPRM concerning 

the broadcast annual employment report 

(FCC Form 395–B), which has in the 

past been used to collect data 

concerning the workforces of broadcast 

employment units, including data 

concerning the race/ethnicity and 

gender of those workforces. We are 

similarly not acting on a comparable 

form for MVPDs. The Office of 

Management and Budget (‘‘OMB’’) 

adopted new standards for classifying 

data on race and ethnicity in 1997 that 

must be incorporated in any such forms 

beginning in 2003. We must incorporate 

these new standards in our future forms. 

In addition, a party has raised issues 

concerning the collection and 

processing of the forms. Because the 

employment reports are filed on 

September 30 of each year, the next 

reports would not be due earlier than 

September 30, 2003. 

IV. Discussion 

A. Statutory Authority for EEO Program 

Requirements and Anti-Discrimination 

Rules 

1. EEO Rules Applicable to 

Multichannel Video Programming 

Distributors 

13. The Commission is explicitly 

authorized by section 634 of the 

Communications Act to adopt and 

enforce the MVPD EEO rules. Indeed, 

section 634 requires us to enforce EEO 

rules for MVPDs. 

14. Although the Commission is 

required by section 634 to enforce EEO 

ruless for the MVPD industry, Congress 

built into section 634 flexibility by 

allowing the Commission to implement 

MVPD EEO rules by rulemaking rather 

than simply prescribing MVPD EEO 

requirements by statute; by stating in 

section 634(d)(2) that the ‘‘rules shall 

specify the terms under which’’ an 

entity shall take the actions specified in 

that section; and by providing in section 

634(d)(4) that the Commission may 

amend the MVPD EEO rules ‘‘from time 

to time to the extent necessary to carry 

out the provisions of this section.’’ Our 

rulemaking authority, particularly under 

sections 634(d)(2) and 634(d)(4), permits 

us to adopt new, race-neutral outreach 

requirements and to revise the FCC 

Forms filed by MVPDs to make them 

consistent with our modified broadcast 

EEO rules. 

15. Section 634(d)(2) obligates the 

Commission to implement the listed 

requirements only ‘‘to the extent 

possible,’’ consistent with other 

conflicting requirements or limitations. 

The court’s decision in Association

delineates constitutional limitations 

with which we must reconcile the 

MVPD EEO rules. We believe that 

section 634(d)(2) permits the 

Commission to eliminate those 

provisions of the MVPD EEO rules that 

are similar to those struck down by the 

court in Association because it is not 

‘‘possible’’ for the Commission to 

enforce a provision that a court has 

found unconstitutional. We modify the 

MVPD EEO rules in this 2R&O to 

remove provisions similar to those 

found unconstitutional in Association.

We also revise the forms filed by 

MVPDs to conform them with our 

modified rules. 

2. EEO Rules Applicable to Broadcasters 

16. In 1992, Congress enacted section 

334 of the Communications Act as part 

of the Cable Television Consumer 

Protection and Competition Act of 1992, 

Pub. L. 192–385, 106 Stat. 1460 (‘‘1992 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 673

Cable Act’’). Section 334 provides that 

‘‘the Commission shall not revise:’’

(1) The regulations concerning equal 

employment opportunity as in effect on 

September 1, 1992 (47 CFR 73.2080) as 

such regulations apply to television 

broadcast station licensees and 

permittees; or 

(2) The forms used by such licensees 

and permittees to report pertinent 

employment data to the Commission, 47 

U.S.C. 334(a). 

The Conference Report accompanying 

this legislation indicates that section 

334 ‘‘codifies the Commission’s equal 

employment opportunity rules, 47 CFR 

73.2080’’ for television licensees and 

permittees. Section 334 thus grants the 

Commission explicit authority to 

regulate the EEO practices of television 

broadcasters. Section 334 was enacted 

as part of section 22 of the 1992 Cable 

Act, which sets forth Congressional 

findings that, despite existing FCC EEO 

rules, there were few women and 

minorities in managerial positions in 

the MVPD and broadcast industries; that 

increased employment of women and 

minorities in managerial positions will 

advance the national policy favoring 

diversity of viewpoints in the electronic 

media; and that rigorous enforcement of 

EEO rules is required to effectively deter 

racial and gender discrimination. 

a. Congressional Ratification 

17. The Commission has maintained 

nondiscrimination and EEO program 

requirements for broadcasters for more 

than 30 years. In 1968, the Commission 

concluded that the national policy 

against discrimination and the fact that 

broadcasters are licensed under the 

Communications Act to operate in the 

public interest required the Commission 

to consider allegations of employment 

discrimination in licensing broadcast 

stations. In 1969, the Commission 

adopted rules prohibiting broadcast 

stations from discriminating against any 

person in employment on the basis of 

race, color, religion, or national origin, 

and requiring stations to maintain a 

program designed to ensure equal 

opportunity in every aspect of station 

employment. It reiterated its view that 

discriminatory employment practices 

are incompatible with a station’s 

obligation to operate in the public 

interest, and relied on sections 4(i), 303, 

307, 308, 309 and 310 in adopting the 

new rules. Relying on its authority to 

license and regulate broadcasters in the 

public interest, the Commission has 

revised and extended its rules on 

numerous occasions since 1969 to, inter 

alia, refine its EEO program 

requirements, require licensees to file 

information concerning these programs 

and other statistical employment 

information with the Commission, and 

prohibit discrimination against, and 

require outreach to, women. 

18. Over the last 30 years, the 

Commission has vigorously enforced its 

EEO requirements, sanctioning 

broadcast licensees in numerous cases 

for failing to comply fully with those 

requirements. Commission decisions 

enforcing the EEO requirements have 

been challenged both by licensees who 

have been sanctioned for 

noncompliance and by petitioners who 

believed that Commission enforcement 

was not vigorous enough. Indeed, the 

Court of Appeals for the DC Circuit held 

more than 20 years ago that the 

Commission must investigate 

broadcasters’ employment practices 

and, in assessing the character 

qualifications of broadcast licensees, 

consider whether they have engaged in 

intentional employment discrimination. 

And the Supreme Court observed in the 

seminal case addressing the scope of an 

agency’s authority to serve the ‘‘public 

interest’’ that FCC regulation of the 

employment practices of its licensees 

‘‘can be justified as necessary to enable 

the FCC to satisfy its obligation under 

the Communications Act of 1934 * * * 

to ensure that its licensees’

programming fairly reflects the tastes 

and viewpoints of minority groups.’’

19. During the three decades that the 

Commission has administered EEO 

program requirements and 

nondiscrimination rules, Congress has 

repeatedly expressed awareness of the 

rules and has not only acquiesced in 

them, but has also referred to them 

approvingly, confirming our view that 

the Commission has statutory authority 

to promulgate these rules. Congress has 

ratified the Commission’s authority to 

adopt and enforce EEO requirements 

against broadcasters under its statutory 

mandate to license and regulate 

broadcasters in the public interest. 

20. In 1984, Congress enacted section 

634 of the Communications Act as part 

of the Cable Communications Policy Act 

of 1984, Pub. L. 98–549, 98 Stat. 2779 

(‘‘1984 Cable Act’’). Although the 

Commission at that time already had 

rules in place regulating the EEO 

practices of cable operators as well as 

broadcasters, section 634 was intended 

to ‘‘codif[y] and strengthen[] the 

Commission’s existing equal 

employment opportunity regulations.’’

Section 634 granted the Commission 

broad authority to adopt rules banning 

employment discrimination by cable 

operators and requiring cable operators 

to ‘‘establish, maintain, and execute a 

positive continuing program of specific 

practices designed to ensure equal 

opportunity in every aspect of its 

employment policies and practices 

* * *.’’

21. The legislative history of section 

634 makes it unmistakably clear that 

Congress believed that the Commission 

already possessed authority to regulate 

the EEO practices of mass media 

entities—broadcast as well as cable. The 

House Commerce Committee Report on 

the bill proposing the provisions on 

which section 634 was based explicitly 

confirmed the Commission’s authority 

to adopt EEO rules. The House 

Commerce Committee stated:

(1) It is well established that the 

Commission has the authority to regulate 

employment practices in the 

communications industry. Among the 

Commission’s efforts in the equal 

employment opportunity (EEO) area over the 

last several years has been the enforcement 

of employment standards in the cable 

industry. Section 634 endorses and extends 

those standards. 

(2) Because of the potentially large impact 

cable programming and other services 

provided by the cable industry has on the 

public, the employment practices of the 

industry have an importance greater than that 

suggested by the number of its employees. 

The committee strongly believes that equal 

employment requirements are particularly 

important in the mass media area where 

employment is a critical means of assuring 

that program service will be responsive to a 

public consisting of a diverse array of 

population groups.

22. In addition to the explicit 

recognition of the Commission’s broad 

and ‘‘well established’’ authority to 

regulate employment practices in the 

communications industry, the 

legislative history of section 634 shows 

that Congress viewed the legislation as 

codifying, strengthening and building 

upon the Commission’s pre-existing 

regulatory scheme, which it viewed as 

well within the Commission’s statutory 

authority. 

23. Additional evidence of 

congressional ratification can be found 

in the Cable Television Consumer 

Protection and Competition Act of 1992, 

which further strengthened the cable 

EEO requirements, extended those 

requirements to all MVPDs, and 

codified the Commission’s EEO program 

and nondiscrimination requirements as 

applied to broadcast television 

licensees. Congress once again explicitly 

acknowledged the existence of the 

Commission’s broadcast and cable EEO 

requirements and proclaimed that 

vigorous enforcement of those rules 

served the public interest. Congress 

made the following findings in section 

22(a) of the 1992 Cable Act:

(1) Despite the existence of regulations 

governing equal employment opportunity, 

674 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

females and minorities are not employed in 

significant numbers in positions of 

management authority in the cable and 

broadcast television industries; 

(2) Increased numbers of females and 

minorities in positions of management 

authority in the cable and broadcast 

television industries advances the Nation’s 

policy favoring diversity in the expression of 

views in the electronic media; and 

(3) Rigorous enforcement of equal 

employment opportunity rules and 

regulations is required in order to effectively 

deter racial and gender discrimination.

By extending the cable EEO 

requirements to every entity that 

provides multiple channels of video 

programming, such as MMDS operators 

and DBS licensees, Congress was 

building upon and closing the gaps in 

the Commission’s regulatory scheme, 

ensuring that every electronic mass 

media provider would be subject to EEO 

regulations enforced by the 

Commission. 

24. The 1992 Cable Act not only 

strengthened and extended the cable 

EEO requirements, it also codified the 

Commission’s EEO requirements for 

broadcast television stations in section 

334 of the Act. Section 334 thus 

explicitly recognizes the existence of the 

Commission’s broadcast EEO rule and 

requires the Commission to keep its 

EEO requirements in effect for television 

broadcasters. 

25. Section 22(g) of the 1992 Cable 

Act required the Commission to report 

to Congress within two years on ‘‘the 

effectiveness of [the Commission’s] 

procedures, regulations, policies, 

standards, and guidelines in promoting 

the congressional policy favoring 

increased employment opportunity for 

women and minorities in positions of 

management authority.’’ The 

Commission was required to include in 

that report ‘‘such legislative 

recommendations to improve equal 

employment opportunity in the 

broadcasting and cable industries as it 

deems necessary.’’ Congress would not 

have directed the Commission to review 

the effectiveness of its broadcast and 

cable EEO policies and regulations then 

in effect, and recommend whether 

further legislative action was necessary, 

had Congress not believed that those 

policies and regulations were within the 

Commission’s lawful authority. Section 

22(g) is further evidence of Congress’s 

affirmative approval of the 

Commission’s authority to adopt equal 

employment opportunity requirements 

for broadcasters. 

26. There is another compelling 

reason to find in the current statutory 

context that Congress has ratified our 

authority to regulate the EEO practices 

of broadcasters. The Supreme Court has 

held on numerous occasions that courts 

should interpret a statute ‘‘as a 

symmetrical and coherent regulatory 

scheme’’ and ‘‘fit, if possible, all parts 

into an harmonious whole.’’ In 

interpreting statutes granting 

administrative or judicial jurisdiction, 

the Supreme Court has held specifically 

that any interpretation of congressional 

intent that will result in a ‘‘bizarre 

jurisdictional patchwork’’ is to be 

disfavored absent legislative history or a 

persuasive functional argument to the 

contrary. In this case, Congress has 

explicitly granted the Commission 

authority to regulate the EEO practices 

of television broadcasters, cable 

operators, and all other MVPDs, 

including such relative newcomers as 

DBS and MMDS operators. Thus, 

rejecting the inference of congressional 

ratification would leave us in the 

anomalous situation of having 

jurisdiction to regulate the EEO 

practices of broadcast television and 

MVPDs, but not radio broadcasters. 

There is no indication in the legislative 

history that this was Congress’s intent 

and none of the broadcasters 

commenting in this proceeding even 

attempts to explain why Congress 

would have intended such a result. 

27. The Commission since 1969 has 

interpreted the Communications Act’s 

grant of authority to license and regulate 

broadcasters as the public interest, 

convenience and necessity require as 

authorizing the Commission to regulate 

the equal employment practices of 

broadcasters. Specifically, it has 

interpreted the statute as granting it 

authority to prohibit broadcast stations 

from engaging in employment 

discrimination and to require them to 

maintain programs designed to ensure 

equal opportunity in all aspects of 

station employment, including 

recruitment. It is that interpretation of 

the scope of the Commission’s statutory 

authority under the Communications 

Act that Congress has ratified over the 

course of many years. 

B. Broadcast and MVPD EEO Rules, 

Policies, and Forms 

1. Anti-Discrimination Provisions 

28. In the 2NPRM we proposed to 

retain the nondiscrimination provisions 

of our broadcast and MVPD EEO rules. 

We noted that the anti-discrimination 

provision of the broadcast EEO rule, 

§ 73.2080(a), was not challenged in 

Association. Nonetheless, in rejecting 

the contention that the unlawful Option 

B could be severed from the EEO rule, 

the court stated that the ‘‘entire rule’’

must be vacated. In order to avoid any 

confusion arising from the language in 

the court’s decision, we recodify the 

nondiscrimination requirement. 

Nondiscrimination is an essential 

component of every licensee’s 

obligation as a trustee of a valuable 

public resource. In Bilingual Bicultural 

Coalition on Mass Media, Inc. v. FCC,

the court stated that ‘‘[a] documented 

pattern of intentional discrimination 

would put seriously into question a 

licensee’s character qualifications to 

remain a licensee: intentional 

discrimination almost invariably would 

disqualify a broadcaster from a position 

of public trusteeship.’’ Finally, we are 

required by statute to prohibit 

discrimination by broadcast television 

licensees and MVPDs. 

29. As proposed in the 2NPRM, we 

will retain our policy of generally 

deferring action on individual 

complaints of employment 

discrimination against broadcasters and 

MVPDs pending final action by the 

Equal Employment Opportunity 

Commission (‘‘EEOC’’) or other 

government agencies and/or courts 

established to enforce 

nondiscrimination laws. We will also 

retain the discretion to take action, 

notwithstanding the absence of a final 

decision by the EEOC or other agency/

court, where the facts of a particular 

case so warrant. As indicated in the 

R&O, our policy generally reflects the 

fact that Congress intended the EEOC to 

be primarily responsible for the 

resolution of discrimination complaints 

and our separate adjudication of such 

complaints could result in duplicative 

or inconsistent decisions.

30. The rule adopted by the R&O

defined a ‘‘religious broadcaster’’ as ‘‘a 

licensee which is, or is closely affiliated 

with, a church, synagogue, or other 

religious entity, including a subsidiary 

of such an entity, 47 CFR 73.2080(a).’’

In the R&O, we clarified that, in the 

event of a controversy, we would 

determine on a case-by-case basis 

whether a licensee was a religious 

broadcaster by considering such factors 

as whether it operates on a non-profit 

basis, whether it has a distinct religious 

history, whether the entity’s articles of 

incorporation set forth a religious 

purpose, and whether it carried 

religious programming. 

2. Broadcast EEO Program Requirements 

a. Rules and Policies 

i. General Considerations 

31. Several broadcast commenters 

have challenged the basis for our 

adopting any EEO rule for broadcasters. 

Initially, they seek to characterize our 

proposals in the 2NPRM as constituting 

‘‘re-regulation.’’ In fact, we have never 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 675

‘‘de-regulated’’ in this area; the court 

decisions that have invalidated various 

aspects of our EEO rules have been 

premised on specific legal defects found 

in our programs, not on a finding that 

nondiscrimination rules or outreach 

requirements are unnecessary. 

32. First, our concern is not limited to 

intentional discrimination. It is not 

based on Constitutional provisions or on 

Title VII, but on the public interest 

standard in the Communications Act. In 

adopting the Cable TelevisionConsumer 

Protection and Competition Act of 1992 

(‘‘Cable Act’’), Congress expressly found 

in pertinent part: ‘‘Rigorous 

enforcement of equal employment 

opportunity rules and regulations is 

required in order to effectively deter 

racial and gender discrimination.’’

Congress has made it clear that the 

public interest standard is sufficiently 

broad to cover not only intentional 

discrimination, but also discrimination 

that may arise as a result of practices 

and policies that are not intentionally 

discriminatory. Further, our policy is 

not limited to imposing sanctions in 

response to specific past discrimination; 

it is also intended to deter 

discrimination in the first instance. Our 

policy is designed to prevent both 

intentional and unintentional 

discriminatory practices in the 

broadcast and MVPD industries, and to 

ensure equal opportunity in 

employment practices, including 

recruitment. 

33. Second, it is not necessary to find 

that the broadcast industry ‘‘as a whole’’

has engaged in discrimination in order 

to justify regulations to prevent 

discrimination. We do not suspect that 

the entire broadcast industry, or even 

most of it, engages in intentional or 

unintentional discrimination. 

34. Third, although we commend the 

broadcast associations for the various 

activities detailed in their comments, 

they do not demonstrate that an EEO 

rule is unnecessary. 

35. Some broadcasters support the 

adoption of an EEO rule. Our proposed 

EEO requirements also are generally 

supported by the MVPD industry. 

36. Discrimination may be easy to 

hide and difficult to prove. Allegations 

of discrimination may never be fully 

litigated because a violator will elect to 

settle any litigation before it reaches the 

stage of a final judgment. It is thus 

impossible to quantify reliably the 

extent of actual discrimination that 

exists today. 

37. Many of the opponents of our EEO 

program cite language from the 2R&O

that ‘‘[o]utreach in recruitment must be 

coupled with a ban on discrimination to 

effectively deter discrimination and 

ensure that a homogenous workforce 

does not simply replicate itself through 

an insular recruitment and hiring 

process.’’ These parties contend that the 

broadcast workforce is not 

homogeneous and that it does not 

employ insular recruitment and hiring 

practices to replicate itself. The cited 

language was intended to explain why 

outreach in recruitment as well as a ban 

on discrimination is necessary to deter 

discrimination. We did not intend to 

suggest that every broadcast station has 

a homogeneous workforce. We 

recognize that in many significant 

respects the industry has become more 

diverse over the past decades. We 

attribute this in large measure to the fact 

that the industry has been subject to our 

various EEO requirements since 1969.

38. We accordingly conclude that 

adoption of new outreach rules for 

broadcast and MVPDs is supported by 

the record in this case. The evidence in 

this proceeding demonstrates an 

ongoing need to deter discrimination 

and ensure equal employment 

opportunity in the broadcasting and 

MVPD industries. Moreover, Congress 

has made clear its intention that we 

should enact EEO rules for the broadcast 

and MVPD industries. 

39. Finally, as noted, our primary goal 

in adopting EEO program requirements 

is to ensure broad outreach in 

recruitment for broadcast and MVPD 

employment vacancies. We seek to do 

so in a manner that affords some 

flexibility to affected industries. The 

regulations we are adopting today 

provide sufficient flexibility. Entities 

will have broad discretion as to the type 

of recruitment sources they will use, the 

number of recruitment sources they will 

use, and the Prong 3 menu options they 

will implement. We are also providing 

that entities in smaller markets may 

implement fewer menu options than 

those in larger markets. 

ii. EEO Program and Related 

Provisions

40. In the 2NPRM, we proposed a 

three-prong EEO program requirement 

designed to ensure equal opportunity to 

all potential applicants, including all 

races and both genders, without 

infringing on the rights of any group. 

The rules were further designed to be 

flexible enough to avoid imposing an 

undue burden and to apply reasonably 

and effectively to broadcasters and 

MVPDs in differing circumstances. 

Based on our review of the comments, 

reply comments and other presentations 

filed in this proceeding, we adopt the 

proposed program, with some 

modifications. 

41. Outreach Prong 1—Recruitment 

for All Full-time Vacancies. We will 

adopt the requirement that broadcasters 

recruit for all full-time vacancies, except 

in exigent circumstances. Recruitment 

for substantially all vacancies using 

sources designed to achieve broad 

outreach is necessary to ensure that all 

segments of the population have an 

equal opportunity to compete for 

broadcast (and MVPD) employment and 

that no segment is subjected to 

intentional or unintentional 

discrimination. 

42. The effectiveness of our 

requirements in the past does not justify 

eliminating them now. Nor can we 

justify such a conclusion based on 

recent outreach efforts by the broadcast 

industry commendable, given that this 

has been an area under high scrutiny for 

some time. We can draw no inference 

from these facts; therefore, regarding the 

likely behavior of licensees in the 

absence of any current on proposed EEO 

program. Second, our requirements 

provide sufficient flexibility to design 

recruitment programs appropriate for 

different positions and circumstances. 

43. In the 2NPRM, we recognized that 

there might be occasional exigent 

circumstances in which recruitment 

may not be feasible. We cited as an 

example the need to replace 

immediately an employee who departs 

without notice and whose duties cannot 

be fulfilled, even briefly, by other 

station employees. We stated in the 

R&O that we could not anticipate every 

circumstance which might justify filling 

a position without recruitment and 

indicated that we would rely on the 

good faith discretion of broadcasters. 

We nonetheless cautioned that we 

expected nonrecruited vacancies to be 

rare relative to the number of vacancies 

for which recruitment is conducted, 

because our rule generally requires 

recruitment for every vacancy. We will 

incorporate this approach in our new 

rules. 

44. The requirement that broadcasters 

recruit for every full-time vacancy, 

unless exigent circumstances exist, will 

become a component of our rule. 

Recruitment for only some openings 

could leave the most desirable positions 

open to a limited number of potential 

applicants, possibly excluding 

significant segments of the community. 

We will require that broadcasters 

develop and use for each vacancy a 

recruitment source or list of recruitment 

sources (which may be freely modified 

as circumstances warrant) sufficient to 

ensure wide dissemination of 

information about the opening. We will 

not dictate the number or type of 

sources that a broadcaster must use. If, 

however, the source or sources used 

cannot reasonably be expected, 

676 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

collectively, to reach the entire 

community, the broadcaster may be 

found in noncompliance with our EEO 

rule. A broadcaster may widely 

disseminate job postings through any 

combination of methods sufficient to 

ensure that its recruitment efforts are 

inclusive. Broadcasters may contact the 

FCC’s EEO staff with any questions on 

this matter. We also clarify that the 

same recruitment sources need not be 

used for every hire. We do not require 

licensees to use recruitment sources 

that, in their good faith judgment, are 

unlikely to elicit responses from 

qualified applicants in light of the 

demands of a particular job. We do 

expect them, however, to use whatever 

recruitment source or sources can 

reasonably be expected to widely 

disseminate notice of the vacancy to 

qualified applicants. Although our rule 

seeks to achieve broad outreach to the 

community, this does not preclude the 

use of regional or national recruitment 

sources. We will accordingly give 

consideration to a broadcaster’s use of 

such sources in assessing its EEO 

record. Whatever sources a licensee 

uses, however, or whatever a licensee’s 

perception is regarding whether anyone 

in its community is qualified for a 

unique job, we are requiring that 

sources reach qualified potential 

applicants in the licensee’s community. 

Licensees are not permitted to target any 

group in the community for exclusion 

from the recruitment process. 

45. With reference to the definition of 

community for purposes of the broad 

outreach requirement, we proposed in 

the 2NPRM to define ‘‘community’’ as 

encompassing, at a minimum, the 

county in which a station is licensed or 

MVPD employees are primarily located, 

or the Metropolitan Statistical Area 

(‘‘MSA’’) in the case of counties located 

in an MSA. We will instead define 

‘‘community’’ for the purpose of the 

broad outreach requirement in 

accordance with the approach taken in 

the Recon, (Memorandum Opinion and 

Order, 65 FR 76948, December 8, 2000). 

There, we left the definition of ‘‘market’’

or ‘‘community’’ to the licensee’s good 

faith discretion. We indicated, that in 

making this determination, a 

broadcaster should assess the technical 

coverage of its station(s); its marketing, 

promotional, and advertising practices; 

the pertinent market definitions adopted 

by public agencies or commercial 

services, such as Nielsen and Arbitron; 

and requests for notices of job vacancies 

from locally-based community groups. 

We will adopt the same policy for 

purposes of our new rule. (Although we 

are according discretion regarding the 

definition of ‘‘community,’’ we expect 

broadcasters to be able to provide a 

reasonable explanation for their 

determinations should it become 

pertinent. We would be concerned if the 

circumstances suggested that a 

broadcaster is unreasonably defining its 

community in a manner that excludes 

certain areas or populations that it 

clearly does serve.) 

46. We require only that EEO 

recruitment sources be reasonably 

calculated to reach the entire 

community. We do not require that 

broadcasters demonstrate that any 

particular segment of the community 

actually was aware of any vacancy. Nor 

do we require that recruitment be 

targeted to a specific segment or that 

broadcasters prove that they obtained a 

response from a particular segment. 

Prong 1 neither requires nor precludes 

the use of any number or type of sources 

a broadcaster deems appropriate to 

achieve broad outreach. Further, we 

leave the definition of ‘‘community’’ to 

the licensee’s good faith discretion. We 

also recognize that it is difficult for 

licensees to recruit for vacancies in 

exigent circumstances. Thus, Prong 1 

allows broadcasters flexibility in 

implementing appropriate recruitment 

programs for their individual 

circumstances. 

47. Notwithstanding the greater 

availability of job-related Internet sites, 

the record does not reflect the extent to 

which the Internet has become well 

known as a principal resource for job 

seekers or the nature of any difficulties 

that Internet recruitment would create. 

We anticipated in the R&O that we 

would be able to assess the extent of any 

such difficulties based on our 

experience under the rules adopted 

therein. Because those rules were in 

effect for only a few months, we do not 

have the experience necessary to reach 

definitive conclusions in that respect. 

48. With regard to the access of 

minority and rural populations to the 

Internet, our concerns arose from a 

series of reports by the National 

Telecommunications and Information 

Administration (‘‘NTIA’’) in 1995, 1998 

and 1999. 

49. Proponents of the use of the 

Internet as a sole recruitment source cite 

the improvements reflected in NTIA’s 

2002 report. Although the NTIA 2002 

report shows increases in Internet usage, 

the report also indicates continuing 

disparities in usage among different 

segments of society. Indeed, only about 

half of all U.S. households had Internet 

service as of September 2001, and only 

slightly more than half of individuals 

used the Internet from any location. We 

are unable to conclude that Internet 

usage has become sufficiently 

widespread to justify allowing it to be 

used as the sole recruitment source. As 

we indicated in the R&O, we will 

continue to monitor the viability of the 

Internet as a recruitment source and will 

consider petitions seeking to 

demonstrate in the future that 

circumstances have changed sufficiently 

to warrant a change in our policy.

50. As indicated in the R&O, we 

expect broadcasters to allow a 

reasonable time after recruitment is 

initiated for applications to be filed 

before the position is filled. We 

recognize that occasionally a shorter 

time might be necessary because of 

extraordinary circumstances. We 

caution that excessive instances of hires 

being made shortly after the initiation of 

recruitment could result in a finding of 

noncompliance if the evidence suggests 

that the broadcaster is not in good faith 

allowing adequate time for applicants to 

respond to its outreach efforts or is not 

considering their applications. Also, it 

is not the intention of our rule to 

prohibit word of mouth recruitment. 

Our purpose is to ensure that word-ofmouth recruitment practices are not the 

sole method of recruitment and that all 

members of the public have an 

opportunity to compete for available 

jobs. Broadcasters are free to use nonpublic recruitment sources and to 

interview and hire persons referred by 

such sources, so long as they also use 

public recruitment sources sufficient to 

achieve broad outreach and fairly 

consider the applications generated by 

those sources. 

51. We will continue our policy stated 

in the R&O that broadcasters may 

engage in joint recruitment efforts. 

Broadcasters may also rely upon the 

services of outside organizations or 

individuals to assist it in designing or 

implementing their recruitment efforts. 

Each broadcaster (or MVPD) remains 

individually responsible for compliance 

with our rule. No broadcaster (or MVPD) 

is required to use the services of an 

outside party. 

52. We will not require recruitment 

for internal promotions, nor will we 

require recruitment for temporary 

employees. Typically, we view 

temporary employees as including those 

hired as emergency replacements for 

absent regular employees or those hired 

to perform a particular job for a limited 

period of time. If a person is hired fulltime to perform a regular station 

function for an extended period of time 

(e.g., more than six months), such a hire 

will be treated as a permanent hire for 

which recruitment would be required. 

We recognize that some broadcasters 

may wish to hire employees initially on 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 677

a temporary basis with the possibility of 

retaining them on a permanent basis if 

their performance is satisfactory. In 

such circumstances, if recruitment is 

done at the time of the temporary hire, 

any later decision to convert the 

employee’s status to full-time in the 

same, or essentially the same, job may 

be treated as a promotion. If an 

employee is hired as a temporary 

employee without recruitment, 

recruitment should occur if the 

employee is later considered for a 

permanent position. We caution that 

excessive instances of temporary hires 

being converted to permanent hires, 

without a meaningful opportunity for 

recruited applicants to compete, could 

result in a finding of noncompliance. (If 

an employee is hired with the 

expectation that successful completion 

of an initial probation will result in an 

eventual elevation to permanent status, 

we would not regard that as a temporary 

hire and would expect regular 

recruitment for that position.) 

53. We will continue to define ‘‘fulltime employee’’ as a permanent 

employee whose regular work schedule 

is thirty hours or more per week. In the 

Recon, we indicated that, as in the case 

of temporary hires, if a part-time 

employee is initially hired after broad 

outreach to all segments of the 

community, the decision subsequently 

to convert him or her to full-time in the 

same, or essentially the same, job may 

be treated as a promotion. If the 

broadcaster did not engage in full 

recruitment at the time of the initial 

part-time hire it would have to recruit 

before converting the employee to fulltime. Also, as in the case of temporary 

hires, excessive instances of temporary 

hires being converted to permanent 

hires without a meaningful opportunity 

for recruited applicants to compete 

could result in a finding of 

noncompliance. We will apply the same 

policy under the rule being adopted 

today. 

54. Outreach Prong 2—Notification to 

Community Groups. Under the Option 

A rules adopted in the R&O, we 

required that broadcasters and MVPDs 

provide notification of full-time job 

vacancies to organizations involved in 

assisting job seekers upon request by 

such organizations. We will incorporate 

this requirement into our new rules. 

This requirement provides a ‘‘safety 

valve’’ to ensure that no segment of the 

community is inadvertently omitted 

from recruitment efforts. Organizations 

or other entities with ties to specific 

segments of the labor force, such as 

persons with disabilities, college 

students, or members of different racial, 

ethnic, or religious groups could help 

broaden the reach of recruitment efforts. 

Organizations that come forward to 

request vacancy notifications may prove 

to be very productive referral sources. 

Further, this approach will enable 

interested groups to more closely 

monitor and, if necessary, seek to 

improve, broadcasters’ recruitment 

efforts. We also expect broadcasters to 

make reasonable efforts to publicize the 

notification requirements so that 

qualifying groups are able to learn of the 

new procedure. Joint announcements by 

broadcasters or state broadcasters’

associations—such as press releases, 

newspaper ads, and notices posted on 

the web site—would satisfy the 

requirement to publicize. Similarly, 

broadcasters and MVPDs could satisfy 

this requirement by individually issuing 

such announcements, or by providing 

on-air announcements. 

55. We will provide broadcasters 

discretion to determine the method of 

providing notice to requesting parties. 

Such methods may include electronic 

mail and facsimile which may require 

fewer personnel and financial resources 

to fulfill the notification requirement 

than more traditional methods. For 

example, a broadcaster may maintain an 

electronic list of recruitment sources 

and notify all the sources 

simultaneously with a single e-mail 

when a vacancy occurs. We will also 

allow notifications to be made as part of 

joint recruitment efforts among 

broadcasters. However, each broadcaster 

participating in the joint recruitment 

efforts remains individually responsible 

for ensuring that requested notifications 

relating to its employment unit are 

made. For example, a state broadcast 

association may have a job bank that 

notifies certain sources on behalf of an 

employment unit when a vacancy 

becomes available at that employment 

unit. As long as the state broadcast 

association notifies all organizations 

requesting vacancy announcements 

from that employment unit as part of 

this process, the employment unit itself 

need not do so. Therefore, given the 

flexibility provided by electronic forms 

of notice and joint recruitment, we 

expect that the notification requirement 

will place minimal burdens on 

broadcasters.

56. An organization that wishes to be 

notified of vacancies need only notify a 

broadcaster once in order to be entitled 

to notification of all future full-time 

vacancies. If a broadcaster is uncertain 

as to the status or continuing interest of 

a particular group, it is free to contact 

the group to resolve any questions. So 

long as the group indicates its continued 

interest in receiving notifications, it is 

entitled to receive them. 

57. The obligation to notify 

recruitment sources that request notice 

of vacancies is intended as a 

supplement to, not a substitute for, 

broadcasters’ core, non-delegable 

obligation to widely disseminate 

information concerning all job 

vacancies. Although recruitment 

sources will have the right to ask 

broadcasters for notices of vacancies, 

they have no obligation to do so. And 

even if a broadcaster does not receive a 

single request for notice of vacancy 

information, it will nevertheless be 

responsible for ensuring that notice of 

vacancies is widely disseminated. If it 

fails to do so, it is not a legitimate 

excuse that no recruitment 

organizations requested notices. 

58. Prong 2 of the EEO rule requires 

broadcasters and MVPDs to provide 

requested notification of full-time job 

vacancies to organizations involved in 

assisting job seekers, regardless of 

whether they are minority or women’s 

organizations. 

59. Outreach Prong 3—Menu Options.

Under the rules adopted by the R&O, we 

required, under Option A, that 

broadcasters and MVPDs engage in a 

specified number of activities selected 

from a menu of options, such as job 

fairs, community events relating to 

broadcast employment, internship 

programs, scholarships, and similar 

activities. These activities are designed 

to go beyond the normal recruitment 

activities directed at filling particular 

vacancies. They are designed to 

encourage outreach to persons who may 

not be aware of the opportunities 

available in broadcasting or the MVPD 

industry or have not yet acquired the 

experience to compete for current 

vacancies. Interested members of the 

community will not only have access to 

information concerning specific job 

vacancies, but also will be encouraged 

to develop the knowledge and skills to 

pursue them. This approach remains 

justified and is not unduly burdensome. 

Various menu options encourage 

outreach to students and others who 

would benefit from training, mentoring 

and scholarships, which can work to 

enhance the employability of persons 

seeking jobs in the broadcasting or 

MVPD industries. These menu methods 

of outreach also are designed to further 

broaden outreach efforts to reach 

segments of the labor force who may be 

inadvertently omitted from vacancyspecific recruitment. As indicated, 

under this approach, broadcasters and 

MVPDs have great flexibility to design 

the types of recruitment activities best 

suited to their organizations and 

communities. In the rule we are 

adopting today, we will adopt this 

678 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

requirement while providing additional 

flexibility by incorporating additional 

menu options that have been suggested 

by the parties. We are also reducing the 

number of menu options that 

employment units located in smaller 

markets must perform. 

60. The first three specific menu 

options include participation in at least 

four job fairs by station personnel who 

have substantial responsibility for hiring 

decisions; hosting at least one job fair; 

or co-sponsoring at least one job fair 

with an organization in the business and 

professional community whose 

membership includes substantial 

participation of women and minorities. 

Job fairs are a useful method to reach a 

broad range of individuals who are 

interested in employment in the 

industry. The fourth option is 

participation in at least four activities 

sponsored by community groups active 

in broadcast employment issues, 

including conventions, career days, 

workshops and similar activities. The 

fifth option is the establishment of an 

internship program designed to assist 

members of the community to acquire 

skills needed for broadcast employment. 

Such an endeavor would serve the goal 

of broad outreach by increasing the 

number of qualified potential employees 

not only for one broadcaster, but for all 

broadcasters in the area. The sixth 

option is participation in general (as 

opposed to vacancy-specific) outreach 

efforts by such means as job banks or 

Internet programs such as those 

described in the model program 

developed by NASBA. While such 

sources may be used as recruitment 

sources when specific vacancies occur, 

they can also be useful even when there 

is no specific vacancy to elicit interest 

from persons who may later be 

considered for a specific position. The 

seventh option is participation in 

scholarship programs directed to 

students desiring to pursue a career in 

broadcasting. The benefit of this 

outreach is that it attracts students of 

both genders and all races to careers in 

broadcasting, ultimately increasing the 

number of qualified potential 

employees. The eighth and ninth 

options are, respectively, the 

establishment of training and mentoring 

programs designed to enable station 

personnel to acquire skills that could 

qualify them for higher level positions. 

These options would not be satisfied by 

ordinary training required for 

employees to perform their current 

positions. These options are rather 

intended to increase employee skills so 

they can qualify for higher positions. 

61. The tenth option is participation 

in at least four events or programs 

relating to career opportunities in 

broadcasting sponsored by educational 

institutions. Such participation again 

serves the purpose of increasing the 

universe of potential employees from 

which broadcasters attract job 

applicants. The eleventh option 

includes sponsorship of at least two 

events in the community designed to 

inform the public as to employment 

opportunities in broadcasting. Such 

activities can serve to increase public 

awareness of the opportunities available 

in broadcasting. The twelfth option 

would entail listing each upper-level 

opening in a job bank or newsletter of 

a media trade group with a broad-based 

membership, including participation of 

women and minorities. 

62. The thirteenth option will consist 

of providing assistance to outside nonprofit entities in the maintenance of web 

sites that provide counseling on the 

process of searching for broadcast 

employment and/or other career 

development assistance pertinent to 

broadcasting. The fourteenth option 

consists of providing training to 

management level personnel as to 

methods of ensuring equal employment 

opportunity and preventing 

discrimination. The fifteenth option 

consists of providing training to 

personnel of outside recruitment 

organizations that would enable them to 

better refer job candidates for broadcast 

positions. 

63. The sixteenth option (which was 

the thirteenth option in our former rule) 

includes participation in activities other 

than the fifteen listed options that the 

licensee has designed to further the goal 

of disseminating information about 

employment opportunities in 

broadcasting to job candidates who 

might otherwise be unaware of such 

opportunities. This will provide 

flexibility for worthwhile initiatives that 

broadcasters may develop but that are 

not strictly within the scope of the 

menu options we have specified. The 

inclusion of this option makes it clear 

that the list of menu options is an openended list intended to guide, rather than 

limit, broadcasters and MVPDs. 

64. In the R&O, we required station 

employment units with more than ten 

full-time employees to implement four 

of these options every two years. If that 

time period is less than two years, the 

number of menu options may be 

reduced proportionally to the amount of 

time available. If a station is required 

generally to perform four menu options 

every two years, it would be expected to 

perform one for each six-month period 

between the effective date of the rule 

and the next regular pertinent 

anniversary. Although we ordinarily do 

not dictate when a broadcaster must 

complete its menu options during the 

regular two-year period, when a 

broadcaster owns a station or stations 

for less than the full two-year period, it 

must complete the prorated number of 

menu options within the available time 

period. We will require employment 

units with five to ten full-time 

employees as well as employment units 

in certain smaller markets to perform 

two of the menu options every two 

years. 

65. We will also permit broadcasters 

to perform menu options on a joint 

basis, either with other broadcasters, 

organizations such as state broadcaster 

associations, or with a corporate 

licensee’s corporate headquarters. A 

station seeking credit for a particular 

menu option performed on a joint basis 

must have a meaningful involvement in 

the activity for which credit is sought. 

It is not sufficient for the station merely 

to lend its name to an activity or 

provide money where the activity is 

otherwise entirely conducted by another 

entity such as a trade association or the 

licensee’s corporate headquarters. In the 

Recon, we discussed a number of 

circumstances where credit might be 

sought for activities engaged in on a 

joint basis. This discussion remains 

applicable to joint efforts engaged in 

pursuant to the rules we are adopting 

herein.

66. We note that the term ‘‘sponsor’’

as used in connection with several 

options set forth in § 73.2080(c)(2) of the 

old rule, which we also use in our new 

rule, was apparently misunderstood by 

some as referring only to a financial 

contribution. Our intent for the purpose 

of these options is that a ‘‘sponsor’’

should have a meaningful input into the 

planning and implementation of a 

specified event. Simply lending one’s 

name or making a monetary 

contribution would not be sufficient. 

Events can be jointly sponsored, so long 

as each broadcaster seeking credit for 

sponsoring the event is actively 

involved in planning and implementing 

the event. 

67. With respect to the maintenance 

of a scholarship program by a corporate 

licensee, it is reasonable for a corporate 

licensee to maintain a scholarship 

program for those employment units it 

owns. Any such scholarship program 

should incorporate involvement by the 

employment units for which credit will 

be claimed in such areas as the design 

of the program, the solicitation of 

prospective scholarship recipients, the 

interviewing and selection of 

scholarship recipients, on-air promotion 

of the program, and evaluation of the 

effectiveness of the program. While each 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 679

employment unit need not be involved 

in every aspect of the program, 

meaningful involvement in the program 

is essential to ensure that the 

employment unit is fulfilling its 

responsibility under our rule. In 

addition, the number of employment 

units seeking credit for a scholarship 

program should bear a reasonable 

relationship to the number or type of 

scholarships awarded by the corporate 

licensee. 

68. Unrelated broadcasters may also 

jointly maintain a scholarship program, 

which could be done through a state or 

local broadcast association, including 

efforts by such associations to 

coordinate regional efforts. We believe 

that the program should incorporate 

meaningful involvement by each 

broadcaster seeking credit for the 

initiative in such areas as the design of 

the program, the solicitation of 

prospective scholarship recipients, the 

interviewing and selection of 

scholarship recipients, on-air promotion 

of the program, and evaluation of the 

effectiveness of the program. As in the 

case of corporate scholarship programs, 

the number or type of scholarships 

awarded by the joint scholarship 

program would have to bear a 

reasonable relationship to the number of 

employment units seeking credit for it. 

69. With respect to mentoring, 

internships, or training programs 

administered by a corporate licensee, 

employment units of the licensee could 

claim credit for such a program even if 

not implemented in the community 

where the employment unit is located, 

but only so long as personnel from the 

employment units are participants in 

the mentoring, internships or training 

program. Similar questions arose under 

our former rule as to job fairs hosted by 

a corporate licensee. We would credit 

individual employment units with 

cohosting the job fair only to the extent 

that personnel from the unit were 

involved in planning and implementing 

the job fair. Employment units of the 

licensee could be credited with 

attendance at the job fair, but only if 

personnel from the employment unit 

with substantial responsibility in 

making hiring decisions at the unit in 

fact participated in the job fair. 

Although the corporate headquarters 

can assist in the implementation of 

menu options, personnel from the 

respective employment units must also 

be involved in implementation should 

they seek credit for participation. 

70. The EEO rules adopted by the 

R&O under Option A required 

broadcasters and MVPDs to engage in 

activities selected from a broad menu of 

options, such as job fairs, community 

events relating to broadcast 

employment, internship programs, 

scholarships, and similar activities. 

These Prong 3 activities are designed to 

go beyond the normal recruitment 

activities directed at filling particular 

vacancies in order to encourage 

outreach to persons who may not be 

aware of the opportunities available in 

broadcasting or the MVPD industry or 

have not yet acquired the experience to 

compete for current vacancies. 

Interested members of the community 

will not only have access to information 

concerning specific job vacancies, but 

also will be encouraged to develop the 

knowledge and skills to pursue them. 

Prong 3 activities are intended as a 

method to reach segments of the 

community who might otherwise be 

omitted, possibly inadvertently, from 

vacancy-specific recruitment efforts. 

71. Outreach Requirements of 

Religious Broadcasters. In the NPRM,

we proposed to adopt a policy under 

which religious broadcasters that 

elected to apply a religious qualification 

to all of their employees were not 

required to comply with the broad 

outreach recruitment requirement or the 

menu options, but they must make 

reasonable, good faith efforts to recruit 

applicants, without regard to race, color, 

national origin or gender, among those 

who are qualified based on their 

religious belief or affiliation. We adopt 

that policy. This approach reflects our 

judgment that the more specific 

recruitment requirements described 

above may not be suited to recruitment 

that is limited to members of a certain 

religious faith. This requirement will 

also apply to religious broadcasters that 

elect to establish a religious 

qualification for some, but not all, of 

their positions, with respect to those 

positions that are subject to the religious 

qualification. Such religious 

broadcasters, with respect to other 

positions not subject to a religious 

qualification, must comply with prongs 

one and two. A religious broadcaster 

that treats five or more its full-time 

positions as non-religious are required 

to comply with the prong three menu 

options because, in regard to those 

positions, the station is in a comparable 

position to stations that have five or 

more full-time employees and none 

subject to a religious qualification. A 

religious broadcaster electing to treat 

none of its positions as subject to a 

religious qualification would be 

required to comply with all three 

prongs. Once an entity establishes its 

qualifications as a religious broadcaster, 

it has the discretion to define the 

religious qualification it seeks to 

establish. Thus, it may define the 

qualification generally as encompassing 

an entire denomination; more 

specifically as encompassing only 

persons who share a particular doctrinal 

belief; or even more specifically as 

encompassing only persons who are 

members of a particular church or 

religious organization. We do not intend 

to inquire into a religious broadcaster’s 

definition of its religious qualification. 

All we require is that some effort be 

made to notify persons who meet the 

definition established by the religious 

broadcaster itself as to the availability of 

employment at the religious 

broadcaster’s station. 

72. Outreach Requirements for 

International Stations. In the Recon, we 

indicated that international broadcast 

stations licensed pursuant to section 73, 

Subpart F, § 73.701, et seq., would be 

subject to our EEO requirements, except 

for the public file requirement, given 

that such stations are not required to 

have a public file. We are continuing 

this requirement in the new rules. 

73. Recordkeeping. We will require 

broadcasters to retain documentation 

concerning their compliance with the 

three recruitment prongs, as proposed in 

the 2NPRM. This documentation must 

be retained by the station, but will not 

be routinely submitted to the 

Commission. The data must be provided 

to the Commission upon request in the 

event of an investigation or audit. The 

documentation includes: (1) Listings of 

all full-time job vacancies filled by the 

station employment unit, identified by 

job title; (2) for each such vacancy, the 

recruitment sources used to fill the 

vacancy (including, if applicable, 

organizations entitled to notification, 

which should be separately identified), 

identified by name, address, contact 

person and telephone number; (3) dated 

copies of all advertisements, bulletins, 

letters, faxes, e-mails, or other 

communications announcing vacancies; 

and (4) documentation necessary to 

demonstrate performance of the Prong 3 

menu options, including sufficient 

information to disclose fully the nature 

of the initiative and the scope of the 

station’s participation, including the 

station personnel involved. This 

documentation will allow us to verify 

compliance with our rules; we find no 

reason to believe that this minimal 

record retention requirement imposes 

an unreasonable burden on broadcasters 

or MVPDs. 

74. We also sought comments in the 

2NPRM as to whether we should require 

the retention of documentation 

concerning the recruitment sources that 

referred hires and interviewees. 

680 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

75. Our rule focuses on the process of 

recruitment, not the results thereof. It is 

nonetheless necessary to have some 

means of assessing whether the process 

has been conducted in good faith and 

whether the process is working as 

intended. We expect that broadcasters 

and MVPDs will analyze the results of 

their recruitment efforts to ensure that 

they actually achieve broad outreach. 

This requires knowledge of what 

recruitment sources have been 

productive in generating qualified 

applicants. Records of the recruitment 

sources of the most qualified 

applicants—those interviewed or 

hired—will be helpful in this regard. We 

will accordingly require that 

broadcasters and MVPDs maintain 

records reflecting the referral sources of 

interviewees and hires.

76. We will not require the retention 

of records of the recruitment sources of 

applicants. Data concerning the 

recruitment sources of interviewees and 

hires is sufficient for the limited 

purpose of determining whether the 

program is being conducted in good 

faith and working as intended. Further, 

although it is minimally burdensome to 

ascertain the recruitment sources of 

interviewees and hires because they are 

readily available to provide this 

information if it is not reflected in the 

jobseeker’s application, tracking the 

recruitment source of all applicants may 

require additional efforts to collect this 

information. This may place an 

inordinate burden on broadcasters and 

MVPDs, particularly in light of the fact 

that information concerning applicants 

in the aggregate does not necessarily 

reflect sources of qualified applicants. 

77. We will require that all records 

documenting outreach efforts be 

retained until the grant of the renewal 

application covering the license term 

during which the hire or activity occurs, 

except that, if a licensee acquired a 

station pursuant to an assignment or 

transfer that required Commission 

approval of FCC Form 314 or 315 during 

the license term, it need not retain 

records pertaining to the outreach 

efforts of a prior licensee. In order to 

minimize any burden associated with 

this requirement, records may be 

maintained in an electronic format, e.g., 

by scanning pertinent documents into a 

computer format. Absent a showing of 

extraordinary circumstances, we will 

not credit claimed activities that cannot 

be supported by records. 

78. In the case of religious 

broadcasters that apply a religious 

qualification to some or all of their 

hires, they need only retain, in the case 

of hires subject to the qualification, 

documentation as to the full-time 

vacancies filled, the recruitment sources 

used, the date each vacancy was filled, 

and the recruitment sources of the hires. 

This information is pertinent to 

monitoring whether the broadcaster 

made reasonable, good faith efforts to 

recruit among persons who meet the 

applicable religious qualification. 

79. Public File. We will adopt the 

requirement that broadcasters place in 

their public file annually, on the 

anniversary of the date they are due to 

file their renewal applications, an EEO 

public file report containing the 

following information: (1) A list of all 

full-time vacancies filled by the station 

employment unit during the preceding 

year, identified by job title; (2) for each 

such vacancy, the recruitment source(s) 

used to fill the specific vacancy 

(including organizations entitled to 

notification of vacancies pursuant to 

Prong 2, which should be separately 

identified), including the address, 

contact person, and telephone number 

of each source; (3) a list of the 

recruitment sources that referred the 

people hired for each full-time vacancy; 

data reflecting the total number of 

persons interviewed for full-time 

vacancies during the preceding year 

and, for each recruitment source used in 

connection with any such vacancies, the 

total number of interviewees referred by 

that source; and (4) a list and brief 

description of Prong 3 menu options 

implemented during the preceding year. 

Religious broadcasters with hires 

subject to a religious qualification need 

include, for full-time vacancies subject 

to the qualification, only the 

information called for in (1) and (2) 

above, along with information 

concerning the recruitment sources that 

referred the persons hired. 

80. Some broadcasters object that 

documentation concerning a station’s 

EEO efforts should not be made 

available to the public. To the contrary, 

as we indicated in the R&O, the public 

has an important role in monitoring 

broadcaster compliance with our EEO 

rule. The EEO public file report is 

designed to facilitate meaningful public 

input. We recognize broadcaster 

concerns that the availability of this 

information could trigger unwarranted, 

even frivolous, filings. The possibility of 

abuses by some does not warrant 

depriving the public of its right to 

participate in the process of monitoring 

and enforcing our EEO rule, which 

directly impacts them. 

81. We will also require that 

broadcasters post the EEO public file 

report on their web site, if they have 

one. (Although the reports must be 

retained in the public file until final 

action has been taken on the station’s 

next renewal application, all reports 

need not be maintained on the station’s 

Web site. The requirement to post a 

station’s EEO public file report on its 

Web site extends only to the current 

report. Also, we require only that the 

information contained in the EEO 

public file report be placed on the Web 

site. A scanned copy of the actual paper 

report contained in the public file need 

not be placed on the Web site; any 

legible format may be used.) The 

purpose of this requirement is to 

facilitate access by persons within the 

service area. We do not believe that our 

requirement to place EEO public file 

report information on a station’s Web 

site is unreasonable or overly 

burdensome. 

82. Broadcasters are free to use any 

format in their public file report to 

avoid unnecessary duplication as long 

as the report clearly provides the 

information requested. For instance, if a 

broadcaster used the same recruitment 

sources for all its vacancies, it may 

maintain a single list of those sources, 

indicating that they were used for all 

vacancies. If a broadcaster used different 

sources for different vacancies, it may 

maintain a master list of all its sources 

and use a cross-reference system to 

show which sources were used for 

which vacancies. 

83. The EEO public file report need 

not be routinely submitted to the 

Commission, except in two instances. 

The EEO public file reports covering the 

two-year period preceding the filing of 

a renewal application must be 

submitted with that application as an 

attachment to Form 396, and will be one 

basis for our review of the broadcaster’s 

compliance at renewal time. Also, for 

stations subject to mid-term reviews, the 

EEO public file reports for the two-year 

period preceding the mid-term review 

must be filed with the Commission and 

will be one basis for mid-term reviews. 

Renewal and mid-term review 

procedures are discussed in greater 

detail. 

84. Because the filing dates for the 

EEO public file reports are tied to the 

date of filing of renewal applications, 

the due dates will apply to a given 

station regardless of when the licensee 

acquired the station. Consequently, if 

there is a substantial change of 

ownership requiring approval pursuant 

to FCC Form 314 or FCC Form 315 

during the one-year period covered by 

an EEO public file report, the new 

licensee must place the report in the 

public file by the due date. The 

information contained in the report 

would encompass only EEO efforts 

undertaken by the new licensee.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 681

85. The EEO public file report will be 

filed for station employment units, 

rather than only for individual stations. 

A ‘‘station employment unit’’ will be 

defined, as it was under our former rule, 

as including a station or group of 

commonly owned stations in the same 

market that shared at least one 

employee. We will leave the definition 

of the ‘‘market’’ to each licensee’s good 

faith discretion. In making this 

determination a licensee should assess 

the technical coverage of its station(s); 

its marketing, promotional, and 

advertising practices; the pertinent 

market definitions adopted by public 

agencies or commercial services, such as 

Nielsen and Arbitron; and requests for 

notices of job vacancies from locallybased community groups. We expect a 

licensee to be able to provide a 

reasonable explanation for its 

determination should it become an 

issue. Finally, stations in the same 

market should be considered part of the 

same employment unit even if the 

licenses are held by different business 

entities that are commonly owned or 

controlled. We would view licensees as 

commonly owned for the purpose of the 

EEO rule if 50 percent or more of the 

voting control of the licensees is held by 

the same persons or entities. 

86. If a station is subject to a time 

brokerage agreement, the licensee’s EEO 

public file report should include data 

concerning only its own recruitment 

efforts for full-time positions and not 

the efforts of the broker. If a licensee is 

a broker of another station or stations in 

the same market as an employment unit 

including a station or stations of which 

it is the licensee, the licensee’s EEO 

public file report should include data 

concerning its EEO efforts at both the 

owned and brokered stations. If a 

licensee-broker does not own a station 

in the same market as the brokered 

station, then it shall include information 

concerning its EEO efforts at the 

brokered station in the EEO public file 

report for its own station that is 

geographically closest to the brokered 

station. The same policy will apply to 

EEO forms filed at mid-term (where 

applicable) (Form 397) and at renewal 

(Form 396), discussed. Non-licensee 

brokers are not required to file EEO 

public file reports because they are not 

licensees. If a broker is controlled 

directly or indirectly by a licensee or 

licensees, it should be considered a 

licensee-broker. 

87. We recognize that there may be 

some employment units that are located 

in markets that include stations licensed 

to communities in more than one state 

that are in different renewal groups. As 

a result, the date of the last renewal 

application filing differs for some 

stations in the same employment unit, 

so that there could arguably be two 

dates governing the placing of the EEO 

public file report in the public file 

because that date is based on the 

anniversary of the filing of the last 

renewal application. The same problem 

arises with respect to the filing of midterm reports (FCC Form 397), discussed. 

It is not our intent that employment 

units comply with these requirements 

more than once merely because they 

include stations in more than one 

renewal group. We will generally expect 

employment units in this situation to 

proceed in accordance with the 

schedule for only one of the renewal 

groups included in their unit. There 

may be rare instances involving 

television stations when it will be 

necessary for us to request a 

supplemental filing in order to comply 

with the statutory requirement that we 

conduct mid-term reviews of television 

licensees’ EEO compliance. 

88. An employment unit consisting of 

stations in more than one renewal group 

may select the renewal group that it will 

use for the purpose of determining the 

filing dates for its annual public file 

reports and its mid-term report, where 

applicable, in accordance with the 

following criteria. If the employment 

unit includes a television station, the 

dates for the television station should 

ordinarily govern, in order to 

accommodate the statutory requirement 

for mid-term review of television 

licensees’ EEO compliance. Apart from 

this situation, the renewal group that 

will determine the employment unit’s 

EEO filing schedule should be selected 

so as to minimize the time between the 

date for placing the EEO public file 

report in the public file and the date for 

the filing of renewal applications for 

stations located in renewal groups that 

have different renewal filing dates than 

the renewal group used to determine the 

employment unit’s EEO filing schedule. 

89. There may also be circumstances 

in which an employment unit consists 

of television and radio stations that are 

part of the same renewal group, except 

that the renewal schedule for radio is 

one year earlier than the schedule for 

television. In these circumstances, the 

filing schedule for television stations 

should be used for purposes of filing the 

mid-term report (FCC Form 397) for the 

employment unit, if it is subject to the 

requirement to file a mid-term report. 

This report would cover all stations in 

the employment unit. Thus, there would 

be no need to file a separate mid-term 

report for the radio station(s). Because 

the date for placing the annual public 

file report in the public file is the same 

for both radio and television, the most 

recent public file report should be 

submitted with the renewal applications 

for both television and radio stations in 

the employment unit. 

90. Renewal applications must still be 

filed separately for each station in 

accordance with the regular schedule 

for the station’s renewal group. FCC 

Form 396, the EEO form submitted with 

the renewal application, discussed 

below, requires that the licensee attach 

the EEO public file report that is 

ordinarily placed in the public file 

simultaneously with the filing of the 

renewal application, as well as the 

report for the prior year. When a station 

is part of an employment unit that is 

using the EEO filing schedule for 

another renewal group, the station 

should submit with its FCC Form 396 

the most recent EEO public file report 

prepared for the employment unit. If the 

licensee feels that the most recent EEO 

public file report does not accurately 

reflect the employment unit’s EEO 

program as of the date of the filing of the 

renewal application, it should disclose 

any pertinent facts as part of the 

narrative statement also required by the 

FCC Form 396. 

91. Low power television (LPTV) 

stations are subject to the broadcast EEO 

rule by virtue of a cross-reference 

contained in § 74.780 of the 

Commission’s Rules. (Licensees of low 

power FM (LPFM) stations are subject to 

the Commission’s prohibition against 

employment discrimination. See 47 CFR 

73.881. LPFM licensees are not required 

to comply with any EEO program 

requirements. As we stated in the LPFM 

R&O, ‘‘[b]ecause we anticipate that the 

vast majority of this class of licensees 

will employ very few (if any) full-time, 

paid employees, we do not intend to 

require LPFM licensees to comply with 

any EEO program requirements we 

adopt in our rulemaking proceeding.’’) 

LPTV stations are not required to 

maintain a public file. As indicated in 

the Recon, we will not expect them to 

prepare an EEO public file report, 

although LPTV stations with five or 

more full-time employees must comply 

with the recordkeeping requirements. 

Class A television stations are subject to 

the requirement to maintain a public file 

and are fully subject to the EEO rule, 

including the requirement to prepare an 

EEO public file report. 

92. Enforcement. We will adopt the 

enforcement process proposed in the 

2NPRM, which is similar to that 

adopted in the R&O, except that we are 

eliminating the requirement that 

broadcasters certify compliance with the 

EEO rule in the second and sixth years 

of their license term. We will conduct 

682 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

mid-term review of television stations 

with five or more full-time employees 

and radio stations with more than ten 

full-time employees, using FCC Form 

397. We treat television stations 

differently from radio stations because 

of the requirements of section 334 of the 

Communications Act which does not 

permit us to exempt television stations 

with five to ten full-time employees 

from the mid-term requirement. 

93. We will also monitor EEO 

compliance through random audits and 

targeted investigations resulting from 

information received as to possible 

violations. Each year we will select for 

audit approximately five percent of all 

licensees in the radio and television 

services, ensuring that, even though the 

number of radio licensees is 

significantly larger than television 

licensees, both services are represented 

in the audit process. Initially, the 

inquiry may request the contents of the 

station’s public file. Further inquiry or 

inquiries may be conducted requesting 

additional documentation of 

recruitment efforts that is not in the 

public file. Based on the circumstances 

of the case, the inquiry could potentially 

include, but not be limited to, (1) A 

request for data covering any period of 

the license term; and (2) interviews of 

witnesses, including any complainant 

and present or former station 

employees.

94. Licensees will be subject to a 

variety of sanctions and remedies for 

EEO rule violations or deficiencies. 

Some examples of violations or 

deficiencies might include: engaging in 

employment discrimination in hiring or 

promotions; failure to file a mid-term 

review when due; failure to file an EEO 

public file report when due; failure to 

file Form 396 when due; 

misrepresentation of outreach efforts or 

other information; non-responsiveness 

or evasion in responding to a written 

Commission inquiry; failure to recruit 

for all vacancies absent exigent 

circumstances; failure to widely 

disseminate information concerning 

vacancies for full-time positions; failure 

to analyze routinely the adequacy of the 

various program elements in achieving 

broad outreach to all segments of the 

community; failure to undertake the 

required Prong 3 menu options; and 

failure to notify organizations that 

request vacancy notices. Also, it may 

constitute a violation of the EEO rule if, 

based on all of the evidence, we 

determine that a licensee has attempted 

to evade our requirements through 

token or sham efforts. 

95. We take the EEO rules and 

obligations we establish here very 

seriously, and fully expect broadcasters 

and MVPDs to do the same. We remind 

licensees that it is as true today as it was 

20 years ago that a ‘‘documented pattern 

of intentional discrimination would put 

seriously into question a licensee’s 

character qualification to remain a 

licensee.’’ We intend to carefully 

monitor compliance with our EEO rules. 

Sanctions and remedies that may be 

issued by the Commission for 

deficiencies in licensees’ EEO 

compliance include admonishments, 

reporting conditions, forfeitures, short 

term renewal of license, or designation 

for hearing for possible revocation of 

license or denial of renewal. The 

appropriate sanction or remedy will be 

determined on a case-by-case basis. 

Sanctions will be greater in cases 

involving recidivism, continuous EEO 

non-compliance, or intentional 

discrimination. In particular, if 

sufficiently egregious violations are 

found, we will not hesitate to designate 

for hearing. 

96. We will also be taking steps to 

ensure that broadcasters, MVPDs, and 

the public are aware of and able to 

comply with the EEO rules and policies. 

First, we will continue to maintain an 

EEO page on the Commission’s Web 

site. In addition, our Consumer & 

Governmental Affairs Bureau (CGB) will 

provide information to the public on the 

new rules adopted by the Commission. 

CGB will make a factsheet on the rules 

available to the public through our 

consumer centers and our Web site. 

Commission staff will continue to 

participate in conferences held 

throughout the country that deal with 

broadcast and MVPD EEO issues. 

Finally, as always, our EEO staff is 

available to answer more specific 

questions and provide informal 

guidance regarding the rules. We 

encourage the industry and the public to 

take advantage of these resources. 

97. Forms Relating to EEO 

Compliance. We readopt the forms 

adopted in the R&O, incorporating the 

changes discussed above. Primarily, we 

eliminate the portion of the forms that 

provided for an election between Option 

A and Option B because our present 

rule does not provide for an election. 

We also will not reissue the Initial 

Election Statement, which required a 

licensee to choose between Option A 

and Option B. We are addressing here 

only forms relating to our EEO outreach 

requirements. As indicated, FCC Form 

395–B, the Annual Employment Report, 

which is being deferred, is unrelated to 

the implementation and enforcement of 

our EEO program. 

98. We readopt, with modifications, 

FCC Form 396, which is filed by 

broadcasters as part of their renewal 

applications. We will delete the Option 

A/Option B election. The form as 

adopted by the R&O also required the 

broadcaster to certify that it complied 

with the EEO rule during the two-year 

period preceding the filing of the report; 

to attach a copy of its EEO public file 

for the preceding year; and to provide a 

narrative statement demonstrating how 

the station achieved broad outreach 

during the preceding two years. The 

licensee must still certify to the 

accuracy of the forms it submits to the 

Commission; it just need not draw a 

legal conclusion as to whether the facts 

it submits demonstrate compliance with 

our rules. We will modify the form to 

eliminate the certification requirement. 

We will require the submission of the 

EEO public file report due at the time 

of the filing of the Form 396 along with 

the form filed one year before that. This 

is because we allow two years for the 

performance of the Prong 3 menu 

options. We recognize that in some 

instances a station may have been sold 

during the prior two years. In that case, 

the licensee at the time of renewal need 

only submit EEO public file reports 

relating to its own operation of the 

station. 

99. The version of Form 396 adopted 

by the R&O included the following 

question: ‘‘Have any complaints been 

filed before any body having competent 

jurisdiction under federal, state, 

territorial or local law, alleging unlawful 

discrimination in the employment 

practices of the station(s)?’’ In the 

2NPRM, we stated that the form 

required the reporting of ‘‘pending’’

discrimination complaints. We did not 

clarify the period of time to which the 

word ‘‘pending’’ referred, e.g., pending 

at any time during the most recent 

license term or pending at the time a 

renewal application is filed. We will 

require the reporting of all complaints 

filed during the most recent license 

term, consistent with our past practice. 

This will avoid unnecessary litigation 

and involves little additional burden. 

Form 396 requests information 

concerning the disposition or current 

status of the complaint, and the 

Commission will consider complaints 

only to the extent they are deemed 

relevant. 

100. FCC Form 396–A is to be used 

for applications for the construction of 

a new broadcast station or for the sale 

of an existing broadcast station. We will 

readopt this form but delete references 

to the Option A/Option B election. 

101. We adopted in the R&O FCC 

Form 397, ‘‘Broadcast Statement of 

Compliance,’’ which was to be 

submitted in the second, fourth, and 

sixth years of the license term for the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 683

purpose of certifying whether the 

licensee’s station employment unit 

complied with the EEO rule during the 

preceding two years. In the 2NPRM, we 

proposed to use the Form 397 only for 

the purpose of filing mid-term reviews, 

renaming it the ‘‘Broadcast Mid-term 

Report.’’ We will adopt this proposal. 

Form 397 will be filed by licensees 

subject to mid-term review. We will 

modify Form 397 to eliminate the 

reference to an election. In addition, 

consistent with our discussion 

concerning Form 396, we will eliminate 

the compliance certification 

requirement and instead require 

submission of EEO public file reports 

for the two years preceding the filing 

(unless the earlier report does not 

pertain to the current licensee because 

of a sale). Two groups of television 

stations would be required by our new 

rules to file mid-term reports in 2003: 

New Jersey and New York filings would 

be due by February 1, 2003, and 

Delaware and Pennsylvania filings 

would be due by April 1, 2003. Because 

of the extremely short time between the 

anticipated effective date of the rules 

and the filing dates, we will not require 

stations in these groups to file mid-term 

reports in 2003. 

102. Provisions for Small Stations and 

Small Markets. The rule adopted by the 

R&O exempted from the outreach 

provisions (but not the 

nondiscrimination provisions) station 

employment units that had fewer than 

five full-time (30 hours per week or 

more) employees. As noted, a ‘‘station 

employment unit’’ referred to a station 

or group of commonly owned stations in 

the same market that shared at least one 

employee. We will include this 

exemption in our new rule. We also 

provided in the R&O that station 

employment units with five to ten fulltime employees would be required to 

perform only two, rather than four, 

Prong 3 menu options every two years. 

We will incorporate this requirement in 

our new rule. In addition, we will 

extend it to certain small market 

stations. We further provided in the 

R&O that radio station employment 

units with five to ten full-time 

employees would be exempt from the 

mid-term review requirement. We did 

not extend this relief to television 

stations because of the requirements of 

section 334 of the Communications Act. 

We will include this exemption for 

radio in our new rule. 

103. In the 2NPRM, we asked whether 

we should expand the exemption for 

small stations to include employment 

units with ten or fewer employees. We 

also asked whether we should modify 

the requirement that stations with more 

than 10 full-time employees complete 

four menu options every two years. 

Smaller stations with five to 10 or fewer 

full-time employees are required to 

complete two menu options every two 

years. We further asked whether we 

should treat all stations with five or 

more full-time employees that are 

located in smaller markets like smaller 

stations. Having reviewed the record, 

we find no basis for increasing the 

pertinent exemptions, except that we 

find some modification warranted with 

respect to the menu option requirements 

applicable to stations in smaller 

markets.

104. With one exception, we find no 

basis in the record to provide additional 

exemptions from our rule beyond those 

referenced. First, we reject as 

unsupported in the record any 

suggestion that the rule we adopt today 

imposes unreasonable burdens on small 

broadcasters. As a general matter, the 

rule imposes minimal burdens. In 

addition, small broadcasters are 

permitted to perform fewer menu 

options, and most likely will have fewer 

hires, resulting in fewer records to keep 

and fewer job vacancies requiring 

recruitment under the rule. Further, as 

we found in the R&O, small stations 

provide entry-level opportunities in the 

broadcast industries and make up 

approximately 1⁄3 of the broadcast 

industry. If we were to exempt such a 

large number of stations from the EEO 

rule—stations that may provide entry 

level opportunities for people new to 

broadcasting—we would undermine the 

central purpose of our EEO rule. We 

decline to do so. 

105. We find that it would be 

appropriate, to modify our Prong 3 

menu option requirement for stations in 

smaller markets. We recognize that 

smaller markets may not have the 

resources in the community to support 

some of the activities contemplated in 

Prong 3. We did not address this 

problem in the R&O because small 

market stations that found the menu 

option requirement burdensome could 

elect to proceed under Option B. That 

alternative will not be available under 

our new rule. We will accordingly 

provide that small market stations will 

be required to perform only two, rather 

than four, menu options during a two 

year period. 

106. We will define the scope of this 

exemption as extending to any station 

employment unit consisting solely of a 

station or stations licensed to a 

community that is located in a county 

that is outside of all metropolitan areas, 

as defined by OMB, or is located in a 

metropolitan area that has a population 

of fewer than 250,000 persons. This will 

operate to reduce requirements for 

stations in most markets below the 100 

largest markets using definitional 

criteria that are readily ascertainable 

from government sources. (The most 

recent OMB definition of metropolitan 

areas is contained in OMB Bulletin No. 

99–04 (June 30, 1999). See http://

www.whitehouse.gov/omb/inforeg/msabull99-04.html. Metropolitan areas with 

a population of fewer than 250,000 are 

defined as Level C and D MSAs or 

primary MSAs (PMSAs). OMB Bulletin 

No. 99–04 may be used initially to 

define areas subject to this provision. 

OMB has adopted new metropolitan 

area standards and will announce 

definitions of areas based on the new 

standards and Census 2000 data in 

2003. Standards for Defining 

Metropolitan and Micropolitan 

Statistical Areas, (65 FR 82228, 

December 27, 2000).) 

107. In the Recon, we adopted a 

policy pursuant to which an owner who 

has a controlling interest (50 percent or 

greater voting control) in a licensee 

would not be considered a station 

employee for purposes of the EEO rule, 

even if he or she worked at the station. 

We concluded that such an owner’s 

employment at the station would be 

more an incident of ownership rather 

than a normal employment relationship 

because the owner could not be in any 

normal sense hired or fired. We 

declined to extend this policy to lesser 

ownership interests because the 

circumstances pertaining to their 

employment might vary widely and we 

could not assume that the employment 

was primarily an incident of ownership. 

Fletcher, Heald & Hildreth, P.L.C. 

(‘‘FHH’’), on behalf of its clients, filed a 

petition for reconsideration, urging that 

owners with 20 percent or greater 

interests should not be treated as 

‘‘employees’’ for purposes of the EEO 

rule. We will not consider owners 

holding a 20 percent or greater voting 

interest in a licensee as station 

‘‘employees’’ for EEO purposes. This 

will be subject to the proviso, however, 

that no single owner has positive 

control (greater than 50 percent voting 

control) of the licensee. In that 

circumstance, the principal enjoying 

positive control would be in a position 

to determine whether other stockholders 

could be employed at the station, and 

only he or she could properly claim 

employment as an incident of 

ownership. Absent that circumstance, it 

is reasonable to believe that a 20 percent 

or greater owner’s employment position 

is an incident of ownership. Someone 

who owns a 20 percent interest in a 

licensee company is not truly an 

684 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

employee of the licensee, holding a 

position that would be subject to 

recruitment, and thus should be 

permitted to work at the station without 

first requiring outside recruitment. FHH 

suggests that we should, as a safeguard, 

require that the owners have made a 

capital contribution. We do not find this 

necessary. Legitimate ownership 

interests may exist that do not involve 

a capital contribution. In the event of 

alleged abuse of this exception, we will 

consider all relevant factors, including 

the extent of an asserted owner’s capital 

contribution to determine the legitimacy 

of a claimed ownership interest. 

3. MVPD EEO Program Requirements 

a. Rules and Policies 

108. We will adopt substantially the 

same outreach program, recordkeeping 

and reporting requirements for MVPDs, 

as we have for broadcasters. The only 

distinctions will arise in light of the 

specific requirements imposed by 

section 634 of the Communications Act. 

We monitor the EEO programs pursuant 

to annual reports which have contained 

employment and program data, as 

required by statute. We will be creating 

a new form that will contain only 

program data. As mentioned, we are 

deferring consideration of a new form 

for MVPDs that requires employment 

data. Because our review of MVPD EEO 

compliance is an annual review 

pursuant to section 634, we define the 

Prong 3 menu options requirement for 

MVPDs in terms of performing two 

initiatives annually for those with more 

than ten full-time employees or one 

initiative annually for those with six to 

ten full-time employees. With respect to 

the definition of ‘‘community’’ for the 

purpose of determining broad outreach, 

we are leaving the definition of 

‘‘community’’ for this purpose to the 

reasonable good faith discretion of the 

entity concerned. We will apply the 

same policy to MVPDs. MVPDs should 

use pertinent criteria, including the 

location of the system, pertinent market 

definitions adopted by public agencies 

or commercial services, and requests for 

notices of job vacancies from locallybased community groups. They should 

also consider what areas actually 

produce job applicants. MVPDs should 

engage in broad outreach throughout the 

entire local community from which they 

can reasonably expect to elicit 

applicants, whether or not that 

community is defined by its franchise 

area. 

109. MVPD compliance with the EEO 

requirements is monitored pursuant to 

annual reports filed by MVPDs: FCC 

Form 395–A (for cable operators) and 

FCC Form 395–M (for other MVPDs). 

The only substantive modification 

required by the new rules adopted today 

is the elimination of the Option A/

Option B election. In addition, we will 

combine these forms. The two forms are 

virtually identical except for a section in 

the Form 395–A requiring cable 

operators to list the communities in 

which they operate. In view of the 

similarity of the two forms, we do not 

find any necessity for having separate 

forms for cable operators and other 

MVPDs. Both forms request information 

concerning the entity’s EEO outreach 

program. In addition, both forms request 

information as to the gender and racial/

ethnic composition of the entity’s 

workforce, analogous to the broadcast 

Form 395–B. As in the broadcast 

context, the data concerning the entity’s 

workforce is no longer pertinent to the 

administration of our EEO outreach 

requirements. We will adopt at this time 

a single form, FCC Form 396–C, which 

will include the portions of Forms 395–

A and 395–M relating to EEO outreach, 

but not the portion eliciting data 

concerning the entity’s workforce, for 

use by all MVPDs. We will consider the 

adoption of a new form for eliciting 

workforce data from MVPDs as part of 

the future R&O in which we will also 

address the broadcast Form 395–B. 

C. Constitutional Issues 

110. The court in Association upheld 

Option A of the EEO rule as 

constitutional because it found that 

broadcasters were not pressured to 

recruit minorities and women under 

Option A. The recruitment outreach 

provisions we are adopting in this 2R&O 

and 3rd NPRM are the same in all 

material respects as the basic 

requirements of Option A. In enforcing 

the EEO rule, the Commission will not 

pressure employers to favor anyone on 

the basis of race, ethnicity, or gender. As 

a race and gender neutral regulation, the 

EEO rule we are adopting today raises 

no equal protection concerns. 

V. Conclusion 

111. In this 2R&O, we adopt a new 

broadcast EEO rule and set of policies, 

and we amend our MVPD EEO rules and 

policies. We remain committed both to 

prohibiting discrimination in 

employment and requiring broad and 

inclusive outreach in recruitment by 

broadcasters and cable entities.

VI. Procedural Matters 

112. Final Regulatory Flexibility 

Analysis. As required by the Regulatory 

Flexibility Act (‘‘RFA’’), 5 U.S.C. 603, an 

Initial Regulatory Flexibility Analysis 

(‘‘IRFA’’) was incorporated in the 

2NPRM. The Commission sought 

written public comments on the 

possible significant economic impact of 

the proposed policies and rules on small 

entities in the NPRM, including 

comments on the IRFA. Pursuant to the 

Regulatory Flexibility Act, 5 U.S.C. 604, 

a Final Regulatory Flexibility Analysis 

(‘‘FRFA’’) is contained in Appendix B. 

113. Paperwork Reduction Act of 1995 

Analysis. The actions herein have been 

analyzed with respect to the Paperwork 

Reduction Act of 1995 and found to 

impose new or modified reporting and 

recordkeeping requirements or burdens 

on the public. Implementation of these 

new or modified reporting and 

recordkeeping requirements will be 

subject to, and become effective upon, 

approval by the Office of Management 

and Budget as prescribed by the Act. 

VII. Final Regulatory Flexibility 

Analysis 

114. As required by the RFA, an IRFA 

was incorporated into the 2NPRM in 

this proceeding. The Commission 

sought written public comments on the 

possible significant economic impact of 

the proposed policies and rules on small 

entities in the 2NPRM, including 

comments on the IRFA. This Final 

Regulatory Flexibility Analysis (FRFA) 

conforms to the RFA. 

A. Need for, and Objectives of, the 

Proposed Rule Changes 

115. This 2R&O adopts new equal 

employment opportunity (EEO) rules 

and policies for broadcasters and multichannel video program distributors 

(MVPDs) consistent with the decision of 

the U.S. Court of Appeals for the District 

of Columbia Circuit in MD/DC/DE 

Broadcasters Association v. FCC, 236 

F.3d 13, rehearing den. 253 F.3d 732 

(D.C. Cir. 2001), cert. denied, 122 S.Ct. 

920 (2002) (Association). The Court 

therein found unconstitutional one of 

two options for achieving broad 

outreach provided by the broadcast EEO 

outreach requirements adopted in the 

R&O, and codified as § 73.2080 of the 

Commission’s rules, 47 CFR 73.2080. 

The Court found the option invalid 

because it found that nonminority job 

applicants were less likely to receive 

notification of job openings under that 

recruitment option. The Court further 

found that the other option provided by 

the rule, although not invalid, could not 

be severed from the one 

unconstitutional option and therefore it 

vacated the entire rule. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 685

B. Summary of Significant Issues Raised 

by the Public Comments in Response to 

the IRFA 

116. One comment was filed 

specifically in response to the IRFA. 

The American Cable Association (ACA) 

proposes the following relief for smaller 

MVPDs serving fewer than 15,000 

subscribers or, in the alternative, 

employing ten or fewer employees: an 

exemption from the EEO outreach 

requirements, streamlined 

recordkeeping and reporting 

requirements, and a streamlined FCC 

Form 395–A (Cable Television Annual 

Employment Report). ACA states that 

for many smaller companies, 

compliance with EEO outreach, 

recordkeeping, and reporting 

requirements imposes substantial 

administrative burdens and costs. ACA 

also filed these same comments 

regarding small MVPDs in response to 

the 2NPRM. We note that the 2R&O

considers ACA’s concerns and provides 

relief to small MVPD employment units. 

C. Recording, Recordkeeping, and Other 

Compliance Requirements 

117. The purpose of this rulemaking 

is to replace our prior EEO rule that was 

found in part to be unconstitutional. 

Hence, the recording, recordkeeping, 

and compliance requirements of the 

new rule will not exceed those under 

the former rule. We note that the Small 

Business Administration (SBA) 

approved our approach for small 

broadcast stations and small MVPDs 

under our former rule. Generally, no 

special skills will be necessary to 

comply with the requirements. 

118. The 2R&O requires that 

broadcasters and MVPDs recruit for all 

full-time job vacancies except in exigent 

circumstances, that some EEO materials 

be kept in the public inspection file, and 

that all broadcasters and MVPDs adhere 

to the EEO rules’ general antidiscrimination provisions.

119. In addition, broadcasters and 

MVPDs must undertake two additional 

recruitment measures. The first 

recruitment measure requires 

broadcasters and MVPDs to provide 

notification of full-time job vacancies to 

any requesting organization if the 

organization is involved in assisting job 

seekers. Depending on the size or 

location of a station’s staff, the second 

recruitment measure requires 

broadcasters to engage in at least four 

(for station employment units with more 

than ten full-time employees in larger 

markets) or two (for station employment 

units with five to ten full-time 

employees or if they are located in a 

small market) of the following menu 

options every two years: participation in 

at least four job fairs by station 

personnel who have substantial 

responsibility in the making of hiring 

decisions; hosting of at least one job fair; 

co-sponsoring at least one job fair with 

organizations in the business and 

professional community whose 

membership includes substantial 

participation of women and minorities; 

participation in at least four events 

sponsored by organizations representing 

groups present in the community 

interested in broadcast employment 

issues (including conventions, career 

days, workshops, and similar activities); 

establishment of an internship program 

designed to assist members of the 

community to acquire skills needed for 

broadcast employment; participation in 

job banks, Internet programs, and other 

programs designed to promote outreach 

generally; participation in scholarship 

programs designed to assist students 

interested in pursuing a career in 

broadcasting; establishment of training 

and mentoring programs designed to 

enable station personnel to acquire 

skills that could qualify them for higher 

level positions; participation in at least 

four events or programs sponsored by 

educational institutions relating to 

career opportunities in broadcasting; 

sponsorship of at least two events in the 

community designed to inform members 

of the public as to employment 

opportunities in broadcasting; listing of 

each upper-level category opening in a 

job bank or newsletter of media trade 

groups whose membership includes 

substantial participation of women and 

minorities; providing assistance to 

outside non-profit entities in the 

maintenance of web sites that provide 

counseling on the process of searching 

for broadcast employment and/or other 

career development assistance pertinent 

to broadcasting; providing training to 

management level personnel as to 

methods of ensuring equal employment 

opportunity and preventing 

discrimination; providing training to 

personnel of outside organizations 

interested in broadcast employment 

opportunities that would enable them to 

better refer job candidates for broadcast 

positions; and participation in other 

activities designed by the station 

employment unit to further the goal of 

disseminating information about 

employment opportunities in 

broadcasting to job candidates who 

might otherwise be unaware of such 

opportunities. MVPD units in larger 

markets with more than ten full-time 

employees engage in at least two 

options from the recruitment measures 

menu every year and MVPD units with 

six to ten full-time employees or those 

located in small markets engage in at 

least one option every year. 

120. Also, broadcasters and MVPDs 

must retain records to demonstrate that 

they have recruited for all full-time 

permanent positions. Such 

recordkeeping includes: listings of all 

full-time vacancies filled, listings of 

recruitment sources, the address/contact 

person/telephone number of each 

recruitment source, dated copies of 

advertisements and other 

documentation announcing vacancies, 

listings of those organizations which 

requested notification of vacancies, the 

total number of interviewees for each 

vacancy, the date and recruitment 

source of each hire, the number of 

interviewees referred by each 

recruitment source, and documentation 

showing proof of participation in menu 

options. Broadcasters’ records must be 

maintained until grant of the renewal 

application for the term during which 

the hiring activity occurred. MVPDs 

would retain their records for a 

minimum of seven years. In order to 

lessen any burdens, records may be 

maintained in an electronic format, e.g., 

by scanning pertinent documents into a 

computer format. 

121. Stations and MVPDs must place 

annually the following EEO records in 

their local public inspection file: listings 

of full-time vacancies filled during the 

preceding year, recruitment sources 

used for each vacancy, the address/

contact person/telephone number of 

each recruitment source, an indication 

of the organizations requesting 

notification, the total number of persons 

interviewed for full-time vacancies 

during the preceding year, the total 

number of interviewees referred by each 

recruitment source, a list of the 

recruitment source that referred each 

full-time hiree, and a brief description 

of the menu option items undertaken 

during the preceding year. Station units 

retain the materials in their file until 

final action has been taken on the 

station’s next license renewal 

application, and cable entities retain 

their materials for a period of five years. 

122. Most broadcasters must submit 

the contents of their station’s EEO 

public inspection file to the FCC as part 

of their renewal application and 

midway through the license term for the 

Commission’s mid-term review (for 

those subject to mid-term review), and 

MVPDs with six or more full-time 

employees submit copies of their EEO 

public inspection file to the 

Commission every five years. 

Broadcasters’ submissions cover only 

the last two years of EEO activity. 

MVPDs’ submissions cover only the last 

686 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

year of EEO activity. Broadcasters must 

post their current EEO public file report 

on their web site, if they have one. 

123. Also, broadcasters subject to 

mid-term review must file Form 397 

(Broadcast Mid-Term Report) and place 

a copy of the Report in the public 

inspection file. Broadcasters must also 

place a copy of Form 396 (Broadcast 

EEO Program Report) and Form 396-A 

(Broadcast Model EEO Program Report 

for the construction or sale of a station) 

in the public inspection file. 

124. We also note that we have 

provided relief to broadcast and MVPD 

entities located in small markets. While 

this is not specifically a small entity 

relief, this action also lessens 

compliance burdens. 

D. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Would Apply 

1. Definition of a ‘‘Small Business’’

125. The new rules would apply to 

broadcast stations and MVPDs. The RFA 

directs the Commission to provide a 

description of and, where feasible, an 

estimate of the number of small entities 

that may be affected by the rules 

adopted herein. Under the RFA, small 

entities may include small 

organizations, small businesses, and 

small governmental jurisdictions. The 

RFA, 5 U.S.C. 601(3), generally defines 

the term ‘‘small business’’ as having the 

same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act, 15 U.S.C. 632. A small 

business concern is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the SBA. Pursuant to 5 

U.S.C. 601(3), the statutory definition of 

a small business applies ‘‘unless an 

agency, after consultation with the 

Office of Advocacy of the [SBA] and 

after opportunity for public comment, 

establishes one or more definitions of 

such term which are appropriate to the 

activities of the agency and publishes 

such definition(s) in the Federal 

Register.’’

126. A small organization is generally 

‘‘any not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field.’’

Nationwide, as of 1992, there were 

approximately 275,801 small 

organizations. Finally, ‘‘small 

governmental jurisdiction’’ generally 

means ‘‘governments of cities, counties, 

towns, townships, villages, school 

districts, or special districts, with a 

population of less than 50,000.’’ As of 

1992, there were approximately 85,006 

such jurisdictions in the United States. 

This number includes 38,978 counties, 

cities, and towns; of these, 37,566, or 96 

percent, have populations of fewer than 

50,000. The United States Bureau of the 

Census (Census Bureau) estimates that 

this ratio is approximately accurate for 

all governmental entities. Thus, of the 

85,006 governmental entities, we 

estimate that 81,600 (91 percent) are 

small entities. 

2. Issues in Applying the Definition of 

a ‘‘Small Business’’

127. We could not precisely apply the 

foregoing definition of ‘‘small business’’

in developing our estimates of the 

number of small entities to which the 

rules will apply. Our estimates reflect 

our best judgments based on the data 

available to us. 

128. An element of the definition of 

‘‘small business’’ is that the entity not 

be dominant in its field of operation. We 

are unable at this time to define or 

quantify the criteria that would 

establish whether a specific radio or 

television station is dominant in its field 

of operation. Accordingly, the following 

estimates of small businesses to which 

the new rules will apply do not exclude 

any radio or television station from the 

definition of a small business on this 

basis and are therefore overinclusive to 

that extent. An additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. The SBA’s general size 

standards are developed taking into 

account these two statutory criteria. 

This does not preclude us from taking 

these factors into account in making our 

estimates of the numbers of small 

entities.

129. With respect to applying the 

revenue cap, the SBA has defined 

‘‘annual receipts’’ specifically in 13 CFR 

121.104, and its calculations include an 

averaging process. We do not currently 

require submission of financial data 

from licensees that we could use in 

applying the SBA’s definition of a small 

business. Thus, for purposes of 

estimating the number of small entities 

to which the rules apply, we are limited 

to considering the revenue data that are 

publicly available, and the revenue data 

on which we rely may not correspond 

completely with the SBA definition of 

annual receipts. 

130. Under SBA criteria for 

determining annual receipts, if a 

concern has acquired an affiliate or been 

acquired as an affiliate during the 

applicable averaging period for 

determining annual receipts, the annual 

receipts in determining size status 

include the receipts of both firms. The 

SBA defines affiliation in 13 CFR 

121.103. In this context, the SBA’s 

definition of affiliate is analogous to our 

attribution rules. Generally, under the 

SBA’s definition, concerns are affiliates 

of each other when one concern controls 

or has the power to control the other, or 

a third party or parties controls or has 

the power to control both. The SBA 

considers factors such as ownership, 

management, previous relationships 

with or ties to another concern, and 

contractual relationships, in 

determining whether affiliation exists. 

Instead of making an independent 

determination of whether television 

stations were affiliated based on SBA’s 

definitions, we relied on the databases 

available to us to provide us with that 

information. 

3. Estimates Based on Census Data 

131. The rules to be adopted pursuant 

to this 2R&O will apply to broadcast 

television and radio stations. The SBA 

defines a television broadcasting station 

that has no more than $12.0 million in 

annual receipts as a small business. 

Television broadcasting stations consist 

of establishments primarily engaged in 

broadcasting visual programs by 

television to the public, except cable 

and other pay television services. 

Included in this industry are 

commercial, religious, educational, and 

other television stations. Also included 

are establishments primarily engaged in 

television broadcasting and which 

produce taped television program 

materials. Separate establishments 

primarily engaged in producing taped 

television program materials are 

classified under other North American 

Industry Classification (NAICS) 

numbers. 

132. There were 1,695 full-service 

television stations operating as of 

December 2001. According to Census 

Bureau data for 1997, there were 906 

Television Broadcasting firms, total, that 

operated for the entire year. Of this 

total, 734 firms had annual receipts of 

$9,999,999.00 or less and an additional 

71 had receipts of $10 million to 

$24,999,999.00. Thus, under this 

standard, the majority of firms can be 

considered small. 

133. The SBA defines a radio 

broadcasting station that has no more 

than $6 million in annual receipts as a 

small business. A radio broadcasting 

station is an establishment primarily 

engaged in broadcasting aural programs 

by radio to the public. Included in this 

industry are commercial, religious, 

educational, and other radio stations. 

Radio broadcasting stations which 

primarily are engaged in radio 

broadcasting and which produce radio 

program materials are similarly 

included. Radio stations which are 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 687

separate establishments and are 

primarily engaged in producing radio 

program material are classified under 

another NAICS number. According to 

Census Bureau data for 1997, there were 

4,476 Radio Stations (firms), total, that 

operated for the entire year. Of this total 

4,265 had annual receipts of 

$4,999,999.00 or less, and an additional 

103 firms had receipts of $5 million to 

$9,999,999.00. Under this standard, the 

great majority of firms can be 

considered small. 

134. The 2R&O also amends EEO 

rules applicable to MVPDs. SBA has 

developed a definition of a small entity 

for cable and other program 

distribution, which includes all such 

companies generating $12.5 million or 

less in annual receipts. This definition 

includes direct broadcast satellite 

services (DBS), multipoint distribution 

systems (MDS), and local multipoint 

distribution service (LMDS). According 

to Census Bureau data for 1997, there 

were 1,311 firms within the industry 

category Cable and Other Program 

Distribution, total, that operated for the 

entire year. Of this total, 1,180 firms had 

annual receipts of $9,999,999.00 or less, 

and an additional 52 firms had receipts 

of $10 million to $24,999,999.00. Under 

this standard, the majority of firms can 

be considered small. 

135. Cable Systems: The Commission 

has developed, with SBA’s approval, its 

own definition of small cable system 

operators. Under the Commission’s 

rules, a ‘‘small cable company’’ is one 

serving fewer than 400,000 subscribers 

nationwide. Based on our most recent 

information, we estimate that there were 

1,439 cable operators that qualified as 

small cable companies at the end of 

1995. Since then, some of those 

companies may have grown to serve 

more than 400,000 subscribers, and 

others may have been involved in 

transactions that caused them to be 

combined with other cable operators. 

Consequently, we estimate that there are 

fewer than 1,439 small entity cable 

system operators that may be affected by 

the rules proposed herein. 

136. The Communications Act also 

contains a definition of a small cable 

system operator, which is ‘‘a cable 

operator that, directly or through an 

affiliate, serves in the aggregate fewer 

than 1% of all subscribers in the United 

States and is not affiliated with any 

entity or entities whose gross annual 

revenue in the aggregate exceeds 

$250,000,000.’’ The Commission has 

determined that there are 67,700,000 

subscribers in the United States. We 

found that an operator serving fewer 

than 677,000 subscribers shall be 

deemed a small operator, if its annual 

revenues, when combined with the total 

annual revenues of all of its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that the number of cable operators 

serving 677,000 subscribers or less totals 

approximately 1,450. Since we do not 

request nor collect information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250,000,000, 

we are unable at this time to estimate 

with greater precision the number of 

cable system operators that would 

qualify as small cable operators under 

the definition in the Communications 

Act.

137. MDS: MDS involves a variety of 

transmitters, which are used to relay 

programming to the home or office. The 

Commission has defined ‘‘small entity’’

for purposes of the 1996 auction of MDS 

as an entity that, together with its 

affiliates, has average gross annual 

revenues that are not more than $40 

million for the preceding three calendar 

years. This definition of a small entity 

in the context of MDS auctions has been 

approved by the SBA. These stations 

were licensed prior to implementation 

of section 309(j) of the Communications 

Act of 1934, as amended. Licenses for 

new MDS facilities are now awarded to 

auction winners in Basic Trading Areas 

(BTAs) and BTA-like areas. The MDS 

auctions resulted in 67 successful 

bidders obtaining licensing 

opportunities for 493 BTAs. Of the 67 

auction winners, 61 met the definition 

of a small business. 

138. LMDS: The auction of the 1,030 

LMDS licenses began on February 18, 

1998, and closed on March 25, 1998. 

The Commission defined ‘‘small entity’’

for LMDS licenses as an entity that has 

average gross revenues of less than $40 

million in the three previous calendar 

years. An additional classification for 

‘‘very small business’’ was added and is 

defined as an entity that, together with 

its affiliates, has average gross revenues 

of not more than $15 million for the 

preceding three calendar years. These 

regulations defining ‘‘small entity’’ in 

the context of LMDS auctions have been 

approved by the SBA. There were 93 

winning bidders that qualified as small 

entities in the LMDS auctions. A total of 

93 small and very small business 

bidders won approximately 277 A Block 

licenses and 387 B Block licenses. On 

March 27, 1999, the Commission 

reauctioned 161 licenses; there were 40 

winning bidders. Based on this 

information, we conclude that the 

number of small LMDS licenses will 

include the 93 winning bidders in the 

first auction and the 40 winning bidders 

in the reauction, for a total of 133 small 

entity LMDS providers as defined by the 

SBA and the Commission’s auction 

rules. 

139. DBS: Because DBS provides 

subscription services, it falls within the 

SBA-recognized definition of ‘‘Cable 

and Other Program Distribution.’’ This 

definition provides that a small entity is 

one with $12.5 million or less in annual 

receipts. Currently, there are nine DBS 

authorizations, though there are only 

two DBS companies in operation at this 

time. We neither request nor collect 

annual revenue information for DBS 

services, and are unable to determine 

the number of DBS operators that would 

be considered a small business under 

the SBA definition. 

140. An alternative way to classify 

small entities is by the number of 

employees. Based on available data, we 

estimate that in 1997 the total number 

of full-service broadcast stations with 

four or fewer employees was 5186, of 

which 340 were television stations. 

Similarly, we estimate that in 1997, 

1900 cable employment units employed 

fewer than six full-time employees. 

Also, in 1997, 296 ‘‘MVPD’’

employment units employed fewer than 

six full-time employees. We also 

estimate that in 1997, the total number 

of full-service broadcast stations with 

five to ten employees was 2145, of 

which 200 were television stations. 

Similarly, we estimate that in 1997, 322 

cable employment units employed six to 

ten full-time employees. Also, in 1997, 

approximately 65 MVPD employment 

units employed six to ten full-time 

employees. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

141. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

142. This 2R&O sets forth the 

Commission’s new EEO rules and 

procedures, and considers the 

significant alternatives presented in the 

comments. We have determined that our 

finalized rules fulfill our public interest 

goals while maintaining minimal 

688 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

regulatory burdens and ease and clarity 

of administration.

143. The 2NPRM proposed to exempt 

small staff stations from specific EEO 

recordkeeping and reporting 

requirements as had been the case under 

our previous EEO rule. Under our 

former EEO rule, station employment 

units with fewer than five full-time 

employees were exempt from the rule’s 

outreach provisions; station 

employment units with five to ten fulltime employees performed only two, 

rather than four, menu options every 

two years; and radio station 

employment units with five to ten fulltime employees were exempt from the 

mid-term review requirement. In 

addition, MVPD employment units 

employing six to ten full-time 

employees performed only one menu 

option each year as opposed to the two 

options required otherwise. MVPDs 

with fewer than six full-time employees 

were not required to demonstrate 

compliance with the EEO program 

requirements. The 2R&O adopts this 

same relief. Thus, the EEO rule does not 

impose unreasonable burdens on small 

broadcasters or MVPDs. 

144. We provide this relief because 

entities with small staffs have limited 

personnel and financial resources to 

carry out EEO requirements. The 

exception for small businesses provides 

them with some relief of any 

recordkeeping and reporting costs. We 

believe that the relief to small 

broadcasters and MVPDs balances the 

importance of deterring discrimination 

and achieving broad outreach in 

broadcast and MVPD employment 

practices against the need to maintain 

minimal regulatory burdens. 

145. The 2NPRM asked whether the 

Commission should increase the 

number of employees below which 

broadcasters would be exempt from the 

EEO outreach requirements to include 

employment units with ten or fewer 

employees. We also asked whether to 

increase the threshold for the lesser 

number of menu options, or permit the 

lesser number for stations in smaller 

markets. As noted, we received one 

comment directly in response to the 

IRFA. In addition, we received a few 

general comments that are pertinent. As 

discussed in the 2R&O, the National 

Association of Broadcasters (NAB) 

supports exempting stations with fewer 

than ten full-time employees. NAB 

explains that such stations face unique 

obstacles in complying with our rule 

because of a lack of personnel and 

resources, difficulties in competing with 

larger stations, and a lack of access to 

resources necessary to implement menu 

options. NAB also contends that stations 

in smaller markets face difficulties 

similar to those facing stations with 

fewer that ten full-time employees. The 

Association of Public Television 

Stations supports an exemption from 

the EEO rule for stations with ten or 

fewer employees because of the funding 

problems of small public television 

stations, especially those outside of top 

100 markets, and difficulties 

experienced in attracting and retaining 

minority employees. The Local 

Television Group (LTVG) asks the 

Commission to exempt stations with 

fewer than 100 employees, in order to 

parallel Equal Employment Opportunity 

Commission rules. Minority Media and 

Telecommunications Council (MMTC), 

the National Organization for Women 

(NOW), American Women in Radio and 

Television (AWRT), the National 

Association for the Advancement of 

Colored People (NAACP), and the 

Lawyers’ Committee for Civil Rights 

Under Law oppose an increase in the 

exemptions, citing primarily the 

opportunity for entry into the industry 

provided by small stations. 

146. The ACA asks for an exemption 

from the EEO outreach requirements, 

streamlined recordkeeping and 

reporting requirements, and a 

streamlined FCC Form 395–A (Cable 

Television Annual Employment Report) 

for cable systems with fewer than 

15,000 subscribers or, in the alternative, 

employing ten or fewer employees. ACA 

explains that the Commission 

previously provided relief to systems 

with fewer than 15,000 subscribers in 

the context of rate regulation, and that 

compliance with EEO outreach and 

recordkeeping imposes substantial 

administrative burdens for smaller cable 

companies. 

147. Fletcher Heald & Hildreth, P.L.C. 

(FH&H) requests that the Commission 

adopt a policy that when an owner has 

a controlling interest (20% or greater 

voting control) in a licensee, he or she 

would not be considered a station 

employee for purposes of the EEO rule, 

even if he or she in fact worked at the 

station.

148. We recognize that smaller 

markets may not have the resources in 

the community to support many of the 

required menu options. Accordingly, 

the EEO rule adopted in the 2R&O

provides that small market systems will 

be permitted to perform only two, rather 

than four, menu options during a twoyear period. 

149. The EEO rule also will not 

consider owners holding a 20% or 

greater voting interest in a licensee as 

station employees for EEO purposes. 

This policy could assist small operators 

by reducing the number of full-time 

employees an entity would have when 

assessing its eligibility for a small entity 

exemption or other small business 

relief. 

150. We find no basis in the record to 

provide any additional exemptions from 

our rule. Generalized claims as to the 

alleged burdens by commenters are 

unsupported by evidence. The rule we 

are adopting today does not impose 

unreasonable burdens on small entities. 

Nor does the rule impose hardships 

comparable to those involved in rate 

regulation. Further, as we found in the 

R&O, small entities provide much 

needed entry-level employment 

opportunities in the industry. 

151. With respect to streamlining 

reporting/recordkeeping requirements, 

we will replace Form 395–A with a new 

form, the FCC Form 396–C. MVPD 

compliance with the EEO rule’s 

requirements is monitored pursuant to 

annual reports filed by MVPDs which 

must be placed in an entity’s public file. 

The Form 396–C requires information 

concerning the entity’s EEO outreach 

program and not its workforce. We will 

consider the adoption of a new form 

eliciting workforce data in a future R&O.

152. In order to lessen any burdens, 

the 2R&O does not require the retention 

of records of the recruitment sources of 

applicants as this may require 

additional efforts to contact applicants 

who did not provide the information in 

the application. Also, records may be 

conveniently maintained in an 

electronic format, e.g., by scanning 

pertinent documents into a computer 

format. 

Report to Congress 

153. The Commission will send a 

copy of the 2R&O, including this FRFA, 

in a report to be sent to Congress 

pursuant to the Congressional Review 

Act, 5 U.S.C. 801(a)(1)(A). In addition, 

the Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, will send a copy of 

this 2R&O, including this FRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

2R&O and FRFA (or summaries thereof) 

will also be published in the Federal 

Register. See 5 U.S.C. 604(b). 

Ordering Clause 

154. Pursuant to the authority 

contained in sections 1, 4(i), 4(k), 257, 

301, 303(r), 307, 308(b), 309, 334, 403, 

and 634 of the Communications Act of 

1934, as amended, 47 U.S.C. 151, 154(i), 

154(k), 257, 301, 303(r), 307, 308(b), 

309, 334, 403, and 554, 2R&O is 

adopted, and part 73 and part 76 of the 

Commission’s rules are amended. It is 

our intention in adopting these rule 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 689

changes that, if any provision of the 

rules, or the application thereof to any 

person or circumstance, is held to be 

unlawful, the remaining portions of the 

rules not deemed unlawful and the 

application of such rules to other 

persons or circumstances shall remain 

in effect to the fullest extent permitted 

by law. 

155. The late-filed comments and 

reply comments in this proceeding are 

considered as part of the record in this 

proceeding. 

156. Pursuant to the Congressional 

Review Act, the new rules and 

amendments will become effective 

either March 10, 2003, or upon receipt 

by Congress of a report in compliance 

with the Congressional Review Act, 5 

U.S.C. 801, whichever is later, and the 

information collection contained in 

these rules will become effective March 

10, 2003, following OMB approval, 

unless a notice is published in the 

Federal Register stating otherwise. We 

will not require television broadcast 

licensees to file EEO mid-term reports in 

2003.

157. FCC Forms 395A, 395B and 

395M, and §§ 73.3612 of the 

Commission’s rules, 47 CFR 73.3612 

(Annual Employment Report) and 

§ 76.1802 of the Commission’s rules, 47 

CFR 76.1802 (Equal Employment 

Opportunity) will remain suspended 

pending further action on workforce 

data collection issues. 

158. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this 2R&O, including the Final 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

159. MM Docket No. 98–204 will 

remain open for the limited purpose of 

considering the issues raised in the 3rd 

NPRM, and to facilitate any additional 

proceedings upon further order of the 

Commission.

List of Subjects in 47 CFR Parts 73 and 

76

Cable television, Equal employment 

opportunity.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

Rule Changes 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 73 

and 76 as follows:

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

2. Section 73.2080 is revised to read 

as follows:

§ 73.2080 Equal employment opportunities 

(EEO). 

(a) General EEO policy. Equal 

opportunity in employment shall be 

afforded by all licensees or permittees of 

commercially or noncommercially 

operated AM, FM, TV, Class A TV or 

international broadcast stations (as 

defined in this part) to all qualified 

persons, and no person shall be 

discriminated against in employment by 

such stations because of race, color, 

religion, national origin, or sex. 

Religious radio broadcasters may 

establish religious belief or affiliation as 

a job qualification for all station 

employees. However, they cannot 

discriminate on the basis of race, color, 

national origin or gender from among 

those who share their religious 

affiliation or belief. For purposes of this 

rule, a religious broadcaster is a licensee 

which is, or is closely affiliated with, a 

church, synagogue, or other religious 

entity, including a subsidiary of such an 

entity. 

(b) General EEO program 

requirements. Each broadcast station 

shall establish, maintain, and carry out 

a positive continuing program of 

specific practices designed to ensure 

equal opportunity and 

nondiscrimination in every aspect of 

station employment policy and practice. 

Under the terms of its program, a station 

shall: 

(1) Define the responsibility of each 

level of management to ensure vigorous 

enforcement of its policy of equal 

opportunity, and establish a procedure 

to review and control managerial and 

supervisory performance; 

(2) Inform its employees and 

recognized employee organizations of 

the equal employment opportunity 

policy and program and enlist their 

cooperation; 

(3) Communicate its equal 

employment opportunity policy and 

program and its employment needs to 

sources of qualified applicants without 

regard to race, color, religion, national 

origin, or sex, and solicit their 

recruitment assistance on a continuing 

basis; 

(4) Conduct a continuing program to 

exclude all unlawful forms of prejudice 

or discrimination based upon race, 

color, religion, national origin, or sex 

from its personnel policies and practices 

and working conditions; and 

(5) Conduct a continuing review of job 

structure and employment practices and 

adopt positive recruitment, job design, 

and other measures needed to ensure 

genuine equality of opportunity to 

participate fully in all organizational 

units, occupations, and levels of 

responsibility. 

(c) Specific EEO program 

requirements. Under the terms of its 

program, a station employment unit 

must: 

(1) Recruit for every full-time job 

vacancy in its operation. A job filled by 

an internal promotion is not considered 

a vacancy for which recruitment is 

necessary. Religious radio broadcasters 

who establish religious affiliation as a 

qualification for a job position are not 

required to comply with these 

recruitment requirements with respect 

to that job position or positions, but will 

be expected to make reasonable, good 

faith efforts to recruit applicants who 

are qualified based on their religious 

affiliation. Nothing in this section shall 

be interpreted to require a broadcaster to 

grant preferential treatment to any 

individual or group based on race, color, 

national origin, religion, or gender. 

(i) A station employment unit shall 

use recruitment sources for each 

vacancy sufficient in its reasonable, 

good faith judgment to widely 

disseminate information concerning the 

vacancy. 

(ii) In addition to such recruitment 

sources, a station employment unit shall 

provide notification of each full-time 

vacancy to any organization that 

distributes information about 

employment opportunities to job 

seekers or refers job seekers to 

employers, upon request by such 

organization. To be entitled to notice of 

vacancies, the requesting organization 

must provide the station employment 

unit with its name, mailing address, email address (if applicable), telephone 

number, and contact person, and 

identify the category or categories of 

vacancies of which it requests notice. 

(An organization may request notice of 

all vacancies). 

(2) Engage in at least four (if the 

station employment unit has more than 

ten full-time employees and is not 

located in a smaller market) or two (if 

it has five to ten full-time employees 

and/or is located entirely in a smaller 

market) of the following initiatives 

during each two-year period beginning 

with the date stations in the station 

employment unit are required to file 

renewal applications, or the second, 

fourth or sixth anniversaries of that 

date. 

690 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(i) Participation in at least four job 

fairs by station personnel who have 

substantial responsibility in the making 

of hiring decisions; 

(ii) Hosting of at least one job fair; 

(iii) Co-sponsoring at least one job fair 

with organizations in the business and 

professional community whose 

membership includes substantial 

participation of women and minorities; 

(iv) Participation in at least four 

events sponsored by organizations 

representing groups present in the 

community interested in broadcast 

employment issues, including 

conventions, career days, workshops, 

and similar activities; 

(v) Establishment of an internship 

program designed to assist members of 

the community to acquire skills needed 

for broadcast employment; 

(vi) Participation in job banks, 

Internet programs, and other programs 

designed to promote outreach generally 

(i.e., that are not primarily directed to 

providing notification of specific job 

vacancies); 

(vii) Participation in scholarship 

programs designed to assist students 

interested in pursuing a career in 

broadcasting;

(viii) Establishment of training 

programs designed to enable station 

personnel to acquire skills that could 

qualify them for higher level positions; 

(ix) Establishment of a mentoring 

program for station personnel; 

(x) Participation in at least four events 

or programs sponsored by educational 

institutions relating to career 

opportunities in broadcasting; 

(xi) Sponsorship of at least two events 

in the community designed to inform 

and educate members of the public as to 

employment opportunities in 

broadcasting; 

(xii) Listing of each upper-level 

category opening in a job bank or 

newsletter of media trade groups whose 

membership includes substantial 

participation of women and minorities; 

(xiii) Provision of assistance to 

unaffiliated non-profit entities in the 

maintenance of web sites that provide 

counseling on the process of searching 

for broadcast employment and/or other 

career development assistance pertinent 

to broadcasting; 

(xiv) Provision of training to 

management level personnel as to 

methods of ensuring equal employment 

opportunity and preventing 

discrimination; 

(xv) Provision of training to personnel 

of unaffiliated non-profit organizations 

interested in broadcast employment 

opportunities that would enable them to 

better refer job candidates for broadcast 

positions; 

(xvi) Participation in other activities 

designed by the station employment 

unit reasonably calculated to further the 

goal of disseminating information as to 

employment opportunities in 

broadcasting to job candidates who 

might otherwise be unaware of such 

opportunities. 

(3) Analyze its recruitment program 

on an ongoing basis to ensure that it is 

effective in achieving broad outreach to 

potential applicants, and address any 

problems found as a result of its 

analysis. 

(4) Periodically analyze measures 

taken to: 

(i) Disseminate the station’s equal 

employment opportunity program to job 

applicants and employees; 

(ii) Review seniority practices to 

ensure that such practices are 

nondiscriminatory; 

(iii) Examine rates of pay and fringe 

benefits for employees having the same 

duties, and eliminate any inequities 

based upon race, national origin, color, 

religion, or sex discrimination; 

(iv) Utilize media for recruitment 

purposes in a manner that will contain 

no indication, either explicit or implicit, 

of a preference for one race, national 

origin, color, religion or sex over 

another; 

(v) Ensure that promotions to 

positions of greater responsibility are 

made in a nondiscriminatory manner; 

(vi) Where union agreements exist, 

cooperate with the union or unions in 

the development of programs to ensure 

all persons of equal opportunity for 

employment, irrespective of race, 

national origin, color, religion, or sex, 

and include an effective 

nondiscrimination clause in new or 

renegotiated union agreements; and 

(vii) Avoid the use of selection 

techniques or tests that have the effect 

of discriminating against any person 

based on race, national origin, color, 

religion, or sex. 

(5) Retain records to document that it 

has satisfied the requirements of 

paragraphs (c)(1) and (2) of this section. 

Such records, which may be maintained 

in an electronic format, shall be retained 

until after grant of the renewal 

application for the term during which 

the vacancy was filled or the initiative 

occurred. Such records need not be 

submitted to the FCC unless specifically 

requested. The following records shall 

be maintained: 

(i) Listings of all full-time job 

vacancies filled by the station 

employment unit, identified by job title; 

(ii) For each such vacancy, the 

recruitment sources utilized to fill the 

vacancy (including, if applicable, 

organizations entitled to notification 

pursuant to paragraph (c)(1)(ii) of this 

section, which should be separately 

identified), identified by name, address, 

contact person and telephone number;

(iii) Dated copies of all 

advertisements, bulletins, letters, faxes, 

e-mails, or other communications 

announcing vacancies; 

(iv) Documentation necessary to 

demonstrate performance of the 

initiatives required by paragraph (c)(2) 

of this section, including sufficient 

information to fully disclose the nature 

of the initiative and the scope of the 

station’s participation, including the 

station personnel involved; 

(v) The total number of interviewees 

for each vacancy and the referral source 

for each interviewee; and 

(vi) The date each vacancy was filled 

and the recruitment source that referred 

the hiree. 

(6) Annually, on the anniversary of 

the date a station is due to file its 

renewal application, the station shall 

place in its public file, maintained 

pursuant to § 73.3526 or § 73.3527, and 

on its web site, if it has one, an EEO 

public file report containing the 

following information (although if any 

broadcast licensee acquires a station 

pursuant to FCC Form 314 or FCC Form 

315 during the twelve months covered 

by the EEO public file report, its EEO 

public file report shall cover the period 

starting with the date it acquired the 

station): 

(i) A list of all full-time vacancies 

filled by the station’s employment unit 

during the preceding year, identified by 

job title; 

(ii) For each such vacancy, the 

recruitment source(s) utilized to fill the 

vacancy (including, if applicable, 

organizations entitled to notification 

pursuant to paragraph (c)(1)(ii) of this 

section, which should be separately 

identified), identified by name, address, 

contact person and telephone number; 

(iii) The recruitment source that 

referred the hiree for each full-time 

vacancy during the preceding year; 

(iv) Data reflecting the total number of 

persons interviewed for full-time 

vacancies during the preceding year and 

the total number of interviewees 

referred by each recruitment source 

utilized in connection with such 

vacancies; and 

(v) A list and brief description of 

initiatives undertaken pursuant to 

paragraph (c)(2) of this section during 

the preceding year. 

(d) Small Station Exemption. The 

provisions of paragraphs (b) and (c) of 

this section shall not apply to station 

employment units that have fewer than 

five full-time employees. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 691

(e) Definitions. For the purposes of 

this rule: 

(1) A full-time employee is a 

permanent employee whose regular 

work schedule is 30 hours per week or 

more. 

(2) A station employment unit is a 

station or a group of commonly owned 

stations in the same market that share at 

least one employee. 

(3) A smaller market includes 

metropolitan areas as defined by the 

Office of Management and Budget with 

a population of fewer than 250,000 

persons and areas outside of all 

metropolitan areas as defined by the 

Office of Management and Budget. 

(f) Enforcement. The following 

provisions apply to employment activity 

concerning full-time positions at each 

broadcast station employment unit 

(defined in this part) employing five or 

more persons in full-time positions, 

except where noted. 

(1) All broadcast stations, including 

those that are part of an employment 

unit with fewer than five full-time 

employees, shall file a Broadcast Equal 

Employment Opportunity Program 

Report (Form 396) with their renewal 

application. Form 396 is filed on the 

date the station is due to file its 

application for renewal of license. If a 

broadcast licensee acquires a station 

pursuant to FCC Form 314 or FCC Form 

315 during the period that is to form the 

basis for the Form 396, information 

provided on its Form 396 should cover 

the licensee’s EEO recruitment activity 

during the period starting with the date 

it acquired the station. Stations are 

required to maintain a copy of their 

Form 396 in the station’s public file in 

accordance with the provisions of 

§§ 73.3526 and 73.3527. 

(2) The Commission will conduct a 

mid-term review of the employment 

practices of each broadcast television 

station and each radio station that is 

part of an employment unit of more 

than ten full-time employees four years 

following the station’s most recent 

license expiration date as specified in 

§ 73.1020. Each such licensee is 

required to file with the Commission the 

Broadcast Mid-Term Report (FCC Form 

397) four months prior to that date. If a 

broadcast licensee acquires a station 

pursuant to FCC Form 314 or FCC Form 

315 during the period that is to form the 

basis for the Form 397, its Report should 

cover the licensee’s EEO recruitment 

activity during the period starting with 

the date it acquired the station. 

(3) If a station is subject to a time 

brokerage agreement, the licensee shall 

file Forms 396, Forms 397, and EEO 

public file reports concerning only its 

own recruitment activity. If a licensee is 

a broker of another station or stations, 

the licensee-broker shall include its 

recruitment activity for the brokered 

station(s) in determining the bases of 

Forms 396, Forms 397 and the EEO 

public file reports for its own station. If 

a licensee-broker owns more than one 

station, it shall include its recruitment 

activity for the brokered station in the 

Forms 396, Forms 397, and EEO public 

file reports filed for its own station that 

is most closely affiliated with, and in 

the same market as, the brokered 

station. If a licensee-broker does not 

own a station in the same market as the 

brokered station, then it shall include its 

recruitment activity for the brokered 

station in the Forms 396, Forms 397, 

and EEO public file reports filed for its 

own station that is geographically 

closest to the brokered station. 

(4) Broadcast stations subject to this 

section shall maintain records of their 

recruitment activity necessary to 

demonstrate that they are in compliance 

with the EEO rule. Stations shall ensure 

that they maintain records sufficient to 

verify the accuracy of information 

provided in Forms 396, Forms 397, and 

EEO public file reports. To determine 

compliance with the EEO rule, the 

Commission may conduct inquiries of 

licensees at random or if it has evidence 

of a possible violation of the EEO rule. 

In addition, the Commission will 

conduct random audits. Specifically, 

each year approximately five percent of 

all licensees in the television and radio 

services will be randomly selected for 

audit, ensuring that, even though the 

number of radio licensees is 

significantly larger than television 

licensees, both services are represented 

in the audit process. Upon request, 

stations shall make records available to 

the Commission for its review. 

(5) The public may file complaints 

throughout the license term based on a 

station’s Form 397 or the contents of a 

station’s public file. Provisions 

concerning filing, withdrawing, or nonfiling of informal objections or petitions 

to deny license renewal, assignment, or 

transfer applications are delineated in 

§§ 73.3584 and 73.3587–3589 of the 

Commission’s rules. 

(g) Sanctions and Remedies. The 

Commission may issue appropriate 

sanctions and remedies for any violation 

of this rule.

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

3. The authority citation for part 76 

continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302, 303, 303a, 307, 308, 309, 312, 317, 

325, 503, 521, 522, 531, 532, 533, 534, 535, 

536, 537, 543, 544, 544a, 545, 548, 549, 552, 

554, 556, 560, 561, 571, 572, 573.

4. Section 76.75 is amending by 

revising the section heading and 

paragraphs (b), (f), (g), (h), (i), and (j); 

and removing paragraph (k), to read as 

follows:

§ 76.75 Specific EEO program 

requirements.

* * * * *

(b) Establish, maintain and carry out 

a positive continuing program of 

outreach activities designed to ensure 

equal opportunity and 

nondiscrimination in employment. The 

following activities shall be undertaken 

by each employment unit: 

(1) Recruit for every full-time job 

vacancy in its operation. A job filled by 

an internal promotion is not considered 

a vacancy for which recruitment is 

necessary. Nothing in this section shall 

be interpreted to require a multichannel 

video programming distributor to grant 

preferential treatment to any individual 

or group based on race, national origin, 

color, religion, age, or gender. 

(i) An employment unit shall use 

recruitment sources for each vacancy 

sufficient in its reasonable, good faith 

judgment to widely disseminate 

information concerning the vacancy.

(ii) In addition to using such 

recruitment sources, a multichannel 

video programming distributor 

employment unit shall provide 

notification of each full-time vacancy to 

any organization that distributes 

information about employment 

opportunities to job seekers or refers job 

seekers to employers, upon request by 

such organization. To be entitled to 

notice of vacancies, the requesting 

organization must provide the 

multichannel video programming 

distributor employment unit with its 

name, mailing address, e-mail address 

(if applicable), telephone number, and 

contact person, and identify the 

category or categories of vacancies of 

which it requests notice. (An 

organization may request notice of all 

vacancies). 

(2) Engage in at least two (if the unit 

has more than ten full-time employees 

and is not located in a smaller market) 

or one (if the unit has six to ten full-time 

employees and/or is located, in whole 

or in part, in a smaller market) of the 

following initiatives during each twelvemonth period preceding the filing of an 

EEO program annual report: 

(i) Participation in at least two job 

fairs by unit personnel who have 

substantial responsibility in the making 

of hiring decisions; 

(ii) Hosting of at least one job fair; 

692 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(iii) Co-sponsoring at least one job fair 

with organizations in the business and 

professional community whose 

membership includes substantial 

participation of women and minorities; 

(iv) Participation in at least two 

events sponsored by organizations 

representing groups present in the 

community interested in multichannel 

video programming distributor 

employment issues, including 

conventions, career days, workshops, 

and similar activities; 

(v) Establishment of an internship 

program designed to assist members of 

the community in acquiring skills 

needed for multichannel video 

programming distributor employment; 

(vi) Participation in job banks, 

Internet programs, and other programs 

designed to promote outreach generally 

(i.e., that are not primarily directed to 

providing notification of specific job 

vacancies); 

(vii) Participation in a scholarship 

program designed to assist students 

interested in pursuing a career in 

multichannel video programming 

communications; 

(viii) Establishment of training 

programs designed to enable unit 

personnel to acquire skills that could 

qualify them for higher level positions; 

(ix) Establishment of a mentoring 

program for unit personnel; 

(x) Participation in at least two events 

or programs sponsored by educational 

institutions relating to career 

opportunities in multichannel video 

programming communications; 

(xi) Sponsorship of at least one event 

in the community designed to inform 

and educate members of the public as to 

employment opportunities in 

multichannel video programming 

communications; 

(xii) Listing of each upper-level 

category opening in a job bank or 

newsletter of media trade groups whose 

membership includes substantial 

participation of women and minorities; 

(xiii) Provision of assistance to 

unaffiliated non-profit entities in the 

maintenance of web sites that provide 

counseling on the process of searching 

for multichannel video programming 

employment and/or other career 

development assistance pertinent to 

multichannel video programming 

communications; 

(xiv) Provision of training to 

management level personnel as to 

methods of ensuring equal employment 

opportunity and preventing 

discrimination; 

(xv) Provision of training to personnel 

of unaffiliated non-profit organizations 

interested in multichannel video 

programming employment 

opportunities that would enable them to 

better refer job candidates for 

multichannel video programming 

positions;

(xvi) Participation in other activities 

reasonably calculated by the unit to 

further the goal of disseminating 

information as to employment 

opportunities in multichannel video 

programming to job candidates who 

might otherwise be unaware of such 

opportunities.

* * * * *

(f) A multichannel video 

programming distributor shall analyze 

its recruitment program on an ongoing 

basis to ensure that it is effective in 

achieving broad outreach, and address 

any problems found as a result of its 

analysis. 

(g) Analyze on an ongoing basis its 

efforts to recruit, hire, promote and use 

services without discrimination on the 

basis of race, national origin, color, 

religion, age, or sex and explain any 

difficulties encountered in 

implementing its equal employment 

opportunity program. For example, this 

requirement may be met by: 

(1) Where union agreements exist, 

cooperating with the union or unions in 

the development of programs to ensure 

all persons equal opportunity for 

employment, and including an effective 

nondiscrimination clause in new or 

renegotiated union agreements; 

(2) Reviewing seniority practices to 

ensure that such practices are 

nondiscriminatory; 

(3) Examining rates of pay and fringe 

benefits for employees having the same 

duties, and eliminating any inequities 

based upon race, national origin, color, 

religion, age, or sex discrimination; 

(4) Evaluating the recruitment 

program to ensure that it is effective in 

achieving a broad outreach to potential 

applicants. 

(5) Utilizing media for recruitment 

purposes in a manner that will contain 

no indication, either explicit or implicit, 

of a preference for one race, national 

origin, color, religion, age, or sex over 

another; and 

(6) Avoiding the use of selection 

techniques or tests that have the effect 

of discriminating against qualified 

minority groups or women. 

(h) A full-time employee is a 

permanent employee whose regular 

work schedule is 30 hours per week or 

more. 

(i) The provisions of paragraphs 

(b)(1)(ii), (b)(2), (c), and (f) of this 

section shall not apply to multichannel 

video programming distributor 

employment units that have fewer than 

six full-time employees. 

(j) For the purposes of this rule, a 

smaller market includes metropolitan 

areas as defined by the Office of 

Management and Budget with a 

population of fewer than 250,000 

persons and areas outside of all 

metropolitan areas as defined by the 

Office of Management and Budget. 

5. Section 76.77 is revised to read as 

follows:

§ 76.77 Reporting requirements and 

enforcement. 

(a) EEO program annual reports.

Information concerning a unit’s 

compliance with the EEO recruitment 

requirements shall be filed by each 

employment unit with six or more fulltime employees on FCC Form 396–C on 

or before September 30 of each year. If 

a multichannel video programming 

distributor acquires a unit during the 

twelve months covered by the EEO 

program annual report, the recruitment 

activity in the report shall cover the 

period starting with the date the entity 

acquired the unit. 

(b) Certification of Compliance. The 

Commission will use the recruitment 

information submitted on a unit’s EEO 

program annual report to determine 

whether the unit is in compliance with 

the provisions of this subpart. Units 

found to be in compliance with these 

rules will receive a Certificate of 

Compliance. Units found not to be in 

compliance will receive notice that they 

are not certified for a given year. 

(c) Investigations. The Commission 

will investigate each unit at least once 

every five years. Employment units are 

required to submit supplemental 

investigation information with their 

regular EEO program annual reports in 

the years they are investigated. If an 

entity acquires a unit during the period 

covered by the supplemental 

investigation, the information submitted 

by the unit as part of the investigation 

shall cover the period starting with the 

date the operator acquired the unit. The 

supplemental investigation information 

shall include a copy of the unit’s EEO 

public file report for the preceding year. 

(d) Records and inquiries.

Employment units subject to this 

subpart shall maintain records of their 

recruitment activity in accordance with 

§ 76.75 to demonstrate whether they are 

in compliance with the EEO rules. Units 

shall ensure that they maintain records 

sufficient to verify the accuracy of 

information provided in their EEO 

program annual reports and the 

supplemental investigation responses 

required by § 76.1702 to be kept in a 

unit’s public file. To determine 

compliance with the EEO rules, the 

Commission may conduct inquiries of 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 693

employment units at random or if the 

Commission has evidence of a possible 

violation of the EEO rules. Upon 

request, employment units shall make 

records available to the Commission for 

its review. 

(e) Public complaints. The public may 

file complaints based on EEO program 

annual reports, supplemental 

investigation information, or the 

contents of a unit’s public file. 

(f) Sanctions and remedies. The 

Commission may issue appropriate 

sanctions and remedies for any violation 

of the EEO rules.

6. Section 76.1702 is revised to read 

as follows:

§ 76.1702 Equal employment opportunity. 

(a) Every employment unit with six or 

more full-time employees shall maintain 

for public inspection a file containing 

copies of all EEO program annual 

reports filed with the Commission 

pursuant to § 76.77 and the equal 

employment opportunity program 

information described in paragraph (b) 

of this section. These materials shall be 

placed in the unit’s public inspection 

file annually by the date that the unit’s 

EEO program annual report is due to be 

filed and shall be retained for a period 

of five years. The file shall be 

maintained at the central office and at 

every location with six or more full-time 

employees. A headquarters employment 

unit file and a file containing a 

consolidated set of all documents 

pertaining to the other employment 

units of a multichannel video 

programming distributor that operates 

multiple units shall be maintained at 

the central office of the headquarters 

employment unit. The multichannel 

video programming distributor shall 

provide reasonable accommodation at 

these locations for undisturbed 

inspection of its equal employment 

opportunity records by members of the 

public during regular business hours. 

(b) The following equal employment 

opportunity program information shall 

be included annually in the unit’s 

public file, and on the unit’s web site, 

if it has one, at the time of the filing of 

its FCC Form 396–C: 

(1) A list of all full-time vacancies 

filled by the multichannel video 

programming distributor employment 

unit during the preceding year, 

identified by job title; 

(2) For each such vacancy, the 

recruitment source(s) utilized to fill the 

vacancy (including, if applicable, 

organizations entitled to notification 

pursuant to § 76.75(b)(1)(ii) of this 

section, which should be separately 

identified), identified by name, address, 

contact person and telephone number; 

(3) The recruitment source that 

referred the hiree for each full-time 

vacancy during the preceding year; 

(4) Data reflecting the total number of 

persons interviewed for full-time 

vacancies during the preceding year and 

the total number of interviewees 

referred by each recruitment source 

utilized in connection with such 

vacancies; and 

(5) A list and brief description of the 

initiatives undertaken pursuant to 

§ 76.75(b)(2) during the preceding year, 

if applicable.

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Appendix—Forms

Note: The following appendix will not appear in the Code of Federal Regulations.


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[FR Doc. 03–171 Filed 1–2–03; 11:55 am] 

BILLING CODE 6712–01–C


ER07JA03.039</GPH>
Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 711

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 635

[Docket No. 000629197–2192–03; I.D. 

032900A]

RIN 0648–AN06

Atlantic Highly Migratory Species; 

Monitoring of Recreational Landings; 

Retention Limit for Recreationally 

Landed North Atlantic Swordfish

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to 

amend regulations governing Atlantic 

billfish and North Atlantic swordfish 

recreational fisheries to implement 

recommendations adopted at the 2000 

meeting of the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT) and enhance 

management programs for these species. 

This rule implements a mandatory 

recreational landings self-reporting 

system for Atlantic blue marlin, Atlantic 

white marlin, west Atlantic sailfish, and 

North Atlantic swordfish; establishes a 

recreational retention limit for North 

Atlantic swordfish; adds handlines as 

an authorized gear for North Atlantic 

swordfish; clarifies language concerning 

applicability of recreational retention 

limits for sharks, yellowfin tuna, and 

North Atlantic swordfish; clarifies 

language regarding the Billfish 

Certificate of Eligibility (COE); and 

makes the criterion for determining the 

size and/or size class the same for both 

vessels commercially permitted for 

swordfish and recreational vessels. In 

addition, NMFS will promote voluntary 

use of circle hooks within the 

recreational swordfish fishery via an 

outreach program. The intent of these 

actions is to improve monitoring and 

conservation of overfished Atlantic 

billfish and North Atlantic swordfish 

stocks.

DATES: Effective March 2, 2003.

ADDRESSES: Copies of the supporting 

documents including the Environmental 

Assessment/Regulatory Impact Review 

(EA/RIR) may be obtained from the 

Highly Migratory Species Management 

Division, 1315 East-West Highway, 

Silver Spring, MD 20910. The EA/RIR 

may also be viewed on the Highly 

Migratory Species (HMS) Management 

Division website at www.nmfs.noaa.gov/

sfa/hmspg.html. Send comments on any 

ambiguity or unnecessary complexity 

arising from the language in this final 

rule to the same address. Comments 

regarding the collection of information 

requirements contained in the final rule 

should be sent to: the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

Washington, DC 20503 (ATTN: NOAA 

Desk Officer.)

FOR FURTHER INFORMATION CONTACT:

Russell Dunn or Rick Pearson, 727–570–

5447.

SUPPLEMENTARY INFORMATION: The 

background and rationale for this final 

rule were contained in the preamble to 

the proposed rule published in the 

Federal Register on December 26, 2001 

(66 FR 66386), and are not repeated 

here. Additional background is 

contained in the EA/RIR for this action 

(see ADDRESSES).

This final rule revises 50 CFR 635.5 

to establish an enhanced monitoring 

program for non-tournament 

recreational landings of Atlantic 

sailfish, blue and white marlin, and 

swordfish through a self-reporting 

method based on a toll-free telephone 

call-in system. North Carolina and 

Maryland are exempted from reporting 

non-tournament billfish/swordfish 

landings since these states have 

modified their large pelagic/bluefin tuna 

catch card reporting programs to 

include these species. To avoid 

duplication, landings reported through a 

registered HMS tournament are exempt 

from the telephone call-in requirement.

This final rule also revises regulations 

at 50 CFR 635.22 to implement a 

recreational retention limit for 

swordfish of one swordfish per person, 

up to three swordfish per vessel, per 

trip; revises 50 CFR 635.21(d)(4) to 

include handlines as authorized gear in 

the recreational swordfish fishery to 

clarify the consolidated regulatory text; 

revises 50 CFR 635.22 to apply the daily 

recreational retention limits for all HMS 

species to vessels that are HMS Charter/

Headboat (CHB) permit holders; revises 

50 CFR 635.31 to clarify the 

consolidated regulatory text in the 

Billfish COE regulations; and revises 50 

CFR 635.20(a) to apply the same 

standard of measurement to both 

recreational vessels and commercial 

vessels that have been issued a limited 

access swordfish permit.

Comments and Responses

NMFS held three public hearings and 

received written comments during the 

comment period on the proposed rule. 

Public hearings were held in Mobile, 

AL, on January 14, 2002; in Manteo, NC, 

on January 22, 2002; and in Ft. 

Lauderdale, FL, on January 23, 2002. 

Comments were submitted by 

recreational and commercial 

organizations, state agencies, 

conservation groups, and the general 

public. All comments were considered 

and responded to as follows:

Mandatory Self-reporting Call-in system

Comment 1: Several commenters 

supported the call-in system, but some 

raised concerns about verifying the 

validity of reports and enforcement of 

reporting.

Response: NMFS is implementing the 

call-in system because it provides a 

system to collect non-tournament 

billfish/swordfish landings reports 

(patterned after the bluefin tuna call-in 

reporting system) and it closes a gap in 

data collection when applied in concert 

with other programs. Also see response 

to comment 3.

Comment 2: One fishing group 

representative supported use of a call-in 

system for private recreational 

fishermen only, and using logbooks for 

CHB vessels.

Response: Owners of HMS Angling 

permitted vessels and CHB operators are 

responsible for reporting all nontournament billfish/swordfish landings 

because not all CHB are selected to 

submit logbooks as specified under 50 

CFR 635.5(a). Those CHB operators that 

are selected to submit logbooks will also 

have to report non-tournament billfish/

swordfish landings through the call-in 

system. NMFS will examine response 

rates and work with vessel operators to 

reduce the reporting burden and avoid 

duplication.

Comment 3: Several commenters did 

not support the call-in system and 

expressed concern that there was no 

way to verify false reports or ensure that 

all non-tournament catches were 

reported.

Response: In the initial call-in, the 

caller will be asked by the automated 

system for the caller’s phone number. 

NMFS personnel will then call back 

every angler as part of the overall 

system to identify the catch by boat or 

documentation number and avoid 

duplicate reporting. During the call 

back, the angler will be given a 

confirmation number. To ensure that 

catches are reported, NMFS will inform 

the public of the reporting requirement. 

For example, NMFS will advertise the 

call-in number in angler publications 

and distribute fliers to ports where 

billfish and swordfish have historically 

been landed, and will publicize that 

failure to report is unlawful.

Comment 4: Several comments, 

including one from a representative 

from a fishing club and another from a 

712 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

representative of a conservation group, 

expressed concern that the call-in 

system would adversely affect goodwill 

existing between fishermen and 

scientists by imposing additional 

governmental paperwork. The 

conservation group representative 

suggested that NMFS duplicate the Gulf 

of Mexico RBS system throughout the 

Atlantic and implement a landing tag 

system to better meet international 

requirements.

Response: The RBS collects 

tournament data in the Gulf of Mexico, 

Atlantic, and Caribbean. The RBS at one 

time (before 1994) systematically 

sampled non-tournament sites; 

however, currently RBS only collects 

tournament data. Non-tournament data 

is voluntarily phoned into the RBS and 

these callers will be referred to the nontournament call-in system. With this 

action, NMFS is attempting to get a 

census of non-tournament billfish/

swordfish landings.

Comment 5: Several commenters 

stated that the call-in system was too 

expensive to operate, too time 

consuming for NMFS to manage, has no 

practical utility, and is not enforceable.

Response: NMFS considers this the 

least expensive of all the measures 

considered. The toll-free line already 

exists and the estimated number of calls 

are expected to be within the capacity 

of the system. The program is patterned 

after the bluefin tuna call-in reporting 

system. The call-in will be enforced as 

all fisheries management rules are 

enforced. In lieu of the call-in system, 

anglers landing billfish or swordfish in 

states that have elected and been 

approved by NMFS to conduct their 

own alternative recreational catch 

reporting program, which is allowed 

under 50 CFR 635.5(c)(3), will follow 

their states procedures for reporting. 

North Carolina and Maryland have 

chosen, with NMFS approval, to modify 

their large pelagic/bluefin tuna catch 

card reporting programs to include 

billfish and swordfish for reporting 

purposes.

Recreational Retention Measures of 

North Atlantic Swordfish

Comment 1: Several commenters, 

which included a representative from a 

fishing club and two national 

conservation groups, supported the 

swordfish retention limit but expressed 

concern about lack of law enforcement 

for the sale of recreationally caught 

swordfish.

Response: NMFS implements this 

provision because it is easier to enforce 

a retention limit than a sale restriction. 

In addition, NMFS believes a retention 

limit will reduce the number of 

recreationally landed swordfish that are 

available for sale. Through the outreach 

program, NMFS will remind the public 

that sale of recreationally landed 

swordfish is prohibited.

Comment 2: Several commenters, 

which included a representative for a 

sport fishermen association, noted that 

one swordfish per vessel per trip would 

have negative impacts on the CHB 

industry and suggested that the vessel 

limit be increased to accommodate more 

than one angler on a single vessel.

Response: NMFS has modified the 

final action to minimize the potential 

impacts on CHB operations which deal 

with multiple clients. The final action of 

one swordfish per person, up to three 

swordfish per vessel, per trip will 

accommodate multiple persons aboard a 

single vessel and should more closely 

reflect current catch patterns in this reemerging fishery. Anecdotal information 

indicates that recreational catches of 

swordfish tend to be clustered in that 

several trips may not catch any 

swordfish while a few trips may catch 

several swordfish. Since not all trips are 

likely to be successful, NMFS expects 

that, on average, the three fish per vessel 

maximum limit will not be reached. The 

most recent stock assessment of North 

Atlantic swordfish indicates that the 

stock is rebuilding quickly and that 

current catch rates are not impeding 

stock recovery. As the final action 

should more closely reflect current 

catch patterns, increasing the swordfish 

retention limit should not impact the 

swordfish stock recovery. Additionally, 

the incidental swordfish catch quota has 

not been filled to date so the United 

States has quota available to 

accommodate increased landings in the 

recreational fishery. Therefore, NMFS 

has modified this portion of the rule to 

allow the landing of one swordfish per 

person, up to three swordfish per vessel, 

per trip.

Comment 3: Several commenters 

stated that this was an allocation matter, 

not a conservation measure.

Response: The retention limit is 

intended to prevent uncontrolled 

expansion of a re-emerging fishery and 

discourage the illegal sales of 

recreationally landed swordfish. 

Uncontrolled expansion of the 

swordfish recreational fishery could 

result in excess mortality, particularly 

on juvenile fish, that could impede 

stock recovery. NMFS remains 

concerned that the continued recovery 

of swordfish is sensitive to overharvests 

and excessive mortality of juvenile fish 

and the re-emerging recreational 

swordfish fishery off Florida occurs in 

a swordfish nursery area. Also see 

response to comment 1 above under this 

section.

Comment 4: A mass mailing from an 

organized recreational anglers group 

objected to the retention limit, stating 

that the fishery was wrongly 

characterized as a recent fishery but 

indeed that it is an historic (not a 

recent) incidental fishery and there was 

no scientific basis for the one swordfish 

limit.

Response: NMFS did not intend to 

imply in the Environmental Assessment 

(EA) that the fishery was new but that 

catching juvenile swordfish by 

recreational fishermen is likely 

increasing. In the Purpose for Action, 

the EA states: ‘‘With the implementation 

of the ICCAT North Atlantic swordfish 

rebuilding program and the recent 

closure of nursery waters off the east 

coast of Florida to pelagic longline 

fishing activities (August 1, 2000, 65 FR 

47214; February 5, 2001, 66 FR 8903), 

further increases in recreational 

landings of North Atlantic swordfish, 

particularly juveniles, is likely to occur 

along the U.S. Atlantic coast.’’ Based on 

the large size of recreationally landed 

swordfish (50–200+ pounds), which 

cannot be sold commercially, NMFS 

considered a one fish per vessel limit to 

be reasonable for swordfish for personal 

consumption. However, based on 

comments that the proposed retention 

limit may impact CHB operations and to 

better reflect current catch patterns in 

this fishery, NMFS has modified the 

swordfish retention limit in the final 

action.

Comment 5: Several commenters 

wanted recreational vessels to have the 

same option as the commercial vessels 

to dress the swordfish at sea.

Response: NMFS has made the 

requested change to afford recreational 

fishermen the same latitude for at-sea 

processing as commercially permitted 

vessels. NMFS proposed to make the 

lower jaw fork length (LJFL) 

measurement the sole criterion for 

recreationally landed swordfish because 

recreational fishermen typically do not 

process fish at sea as well as the ability 

to measure the LJFL on a fish while it’s 

still alive to determine if it meets the 

minimum size. However, due to public 

comment that recreational fishermen 

would like the latitude to process 

swordfish at sea in order to ice the 

carcass more thoroughly, NMFS 

modified the final action so that the 

LJFL measurement will apply when the 

lower jaw and tail are intact. If either 

the tail or lower jaw is missing, the 

cleithrum to keel (CK) measurement or 

weight standard will apply in all cases.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 713

Changes from the Proposed Rule

In response to comments received 

during the comment period and to 

clarify regulatory language, the 

following changes were made to the 

proposed rule (December 26, 2001, 66 

FR 66386):

In § 635.5 (c), a lead-in paragraph was 

added to explain angler reporting 

responsibility and the wording was 

changed in 635.5 (c)(3) to make the 

intent of alternative reporting more 

easily understood.

In § 635.20(a), the proposed regulatory 

text has been amended to apply the 

same standard of measurement and/or 

size class to both recreational and 

commercial North Atlantic swordfish 

landings.

In § 635.22 (f), one North Atlantic 

swordfish per vessel per trip was 

changed to one North Atlantic 

swordfish per person, up to three North 

Atlantic swordfish per vessel, per trip.

In § 635.30(d), the proposed 

regulatory text has been withdrawn so 

that recreational vessels are not required 

to maintain North Atlantic swordfish 

with its head, fins, and bill intact 

through offloading.

In § 635.71, paragraph (b)(6) was 

revised to show that BFT reporting is 

now under § 635.5(c)(1) or (3) instead of 

§ 635.5(c), paragraph (c)(6) was added to 

reflect changes in § 635.5 that mandated 

recreational self-reporting, paragraph 

(e)(14) was added to reflect changes in 

§ 635.22(f) implementing a retention 

limit for recreationally landed North 

Atlantic swordfish, and paragraph 

(e)(15) was added to reflect changes in 

§ 635.5(c)(2) and (3) on North Atlantic 

swordfish reporting. Some of these 

changes were necessary because the 

prohibitions section was omitted in the 

proposed rule. These changes do not 

alter the intent of the proposed rule.

Finally, several changes were made to 

conform with regulatory changes made 

in another final rule that published on 

December 18, 2002 (67 FR 77434).

Classification

This rule is published under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act) and the 

Atlantic Tunas Convention Act. The 

Assistant Administrator for Fisheries, 

NOAA (AA), has determined that the 

regulations contained in this rule are 

necessary to implement the 

recommendations of ICCAT and to 

manage the domestic Atlantic highly 

migratory species fisheries, and are 

consistent with the Magnuson-Stevens 

Act and other applicable laws.

This final rule has been determined to 

be significant for purposes of Executive 

Order 12866.

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel of Advocacy of the 

Small Business Administration that the 

proposed rule for this action would not 

have a significant economic impact on 

a substantial number of small entities. 

The factual basis for the certification 

was published in the proposed rule. 

NMFS received no comments during the 

comment period on the proposed rule 

that would change that conclusion. 

However, some CHB operators raised a 

concern during the public comment 

period with regard to the one swordfish 

per vessel retention limit. To respond to 

this concern and better reflect current 

catch patterns, NMFS modified the final 

rule to provide a one swordfish per 

person, up to three swordfish per vessel, 

per trip limit. This modification does 

not alter the agency’s prior conclusion 

of no significant economic impact on a 

substantial number of small entities.

This final rule will apply to all 

participants in the recreational Atlantic 

marlin and North Atlantic swordfish 

fisheries, all of which are considered 

small entities. The Billfish Fishery 

Management Plan estimated that there 

were 7,915 U.S. tournament billfish 

anglers in the western Atlantic in 1989. 

A 1992 inventory of 359 billfish 

tournaments indicated an average 

expenditure of $2,147 per angler per trip 

(including tournament fees), or $4,242 

for each fish caught, corresponding to 

$32,382 for each billfish landed. 

Swordfish are not generally included in 

billfish tournament prize categories and 

non-tournament recreational catch data 

are not currently systematically 

collected but may be frequent.

Because of the large size of most 

recreationally landed swordfish, the 

retention limit in this final action 

should be sufficient for swordfish 

intended for personal consumption, 

even on vessels carrying multiple 

anglers. Recreationally landed 

swordfish cannot be sold commercially, 

therefore no significant economic 

impacts are anticipated for individual 

anglers. The modified retention limit 

should also minimize any potential 

impacts on CHB operators. An increase 

in the vessel trip limit will more 

accurately reflect recent catch patterns 

in the fishery and, since many trips are 

unsuccessful, on average, the three 

swordfish per vessel limit is not 

expected to be reached. The swordfish 

fishery is a rare event fishery 

characterized by clustered catch rates in 

which several trips may result in no 

swordfish catches and a few trips may 

catch several swordfish. The call-in 

system takes less than 3 to 5 minutes for 

each no-cost report and an additional 3 

to 5 minutes for a confirmation callback, thus no significant economic 

impacts are anticipated.

NMFS prepared an Environmental 

Assessment for this rule that describes 

impacts on the human environment and 

determined that no significant impacts 

would result.

This final rule is consistent with the 

Endangered Species Act. On September 

7, 2000, NMFS reinitiated formal 

consultation for all HMS commercial 

fisheries under section 7 of the ESA. A 

Biological Opinion (BiOp) issued June 

14, 2001, concluded that continued 

operation of the Atlantic pelagic 

longline fishery is likely to jeopardize 

the continued existence of endangered 

and threatened sea turtle species under 

NMFS jurisdiction. NMFS issued a final 

rule on July 9, 2002 (67 FR 45393), to 

implement the reasonable and prudent 

alternative required by the BiOp. The 

fishing activities conducted pursuant to 

this rule will not affect listed species in 

any manner not already considered in 

the BiOp because these actions 

primarily address reporting 

requirements and are not expected to 

alter fishing practices or fishing effort in 

any way not previously considered.

This rule contains a collection-ofinformation requirement subject to the 

Paperwork Reduction Act. The 

collection of this information has been 

approved by the Office of Management 

and Budget, OMB Control Number 

0648–0446. Public reporting burden for 

this collection of information is 

estimated to average 5 minutes per 

initial reporting call and 5 minutes per 

confirmation callback, and 5 minutes to 

fill out a catch reporting card (for those 

pilot programs conducted under state 

reporting systems). This action also 

repeats collection-of-information 

requirements that have been approved 

by OMB under control number 0648–

0216. Public reporting burden for this 

collection of information is 20 minutes 

to prepare a billfish COE and 2 minutes 

for recordkeeping by subsequent 

purchasers of the billfish. 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 aspect of this data 

collection, including suggestions for the 

reducing the burden, to NMFS and OMB 

(see ADDRESSES).

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

714 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

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.

List of Subjects in 50 CFR Part 635

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Intergovernmental 

relations, Penalties, Reporting and 

recordkeeping requirements, Statistics, 

Treaties.

Dated: December 23, 2002.

William T. Hogarth,

Assistant Administrator for Fisheries, 

National Marine Fisheries Service.

For the reasons set out in the 

preamble, 50 CFR part 635 is amended 

as follows:

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES

1. The authority citation for part 635 

continues to read as follows:

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 

1801 et seq.

2. In § 635.5, paragraph (c) is revised 

to read as follows:

§ 635.5 Recordkeeping and reporting.

* * * * *

(c) Anglers. All bluefin tuna, billfish, 

and North Atlantic swordfish nontournament landings must be reported 

as specified under paragraphs (c)(1) or 

(c)(2) of this section, unless an 

alternative recreational catch reporting 

system has been established as specified 

under paragraph (c)(3) of this section. 

Tournament landings must be reported 

as specified under paragraph 635.5(c) of 

this section.

(1) Bluefin tuna. The owner of a 

vessel permitted, or required to be 

permitted, in the Atlantic HMS Angling 

or Atlantic HMS Charter/Headboat 

category must report all BFT landings 

under the Angling category quota 

designated at § 635.27(a) through the 

NMFS automated catch reporting 

system within 24 hours of the landing. 

Such reports may be made by calling 1–

888–872–8862 or by submitting the 

required information over the Internet 

at: www.nmfspermits.com.

(2) Billfish and North Atlantic 

Swordfish. Anglers must report all nontournament landings of Atlantic blue 

marlin, Atlantic white marlin, Atlantic 

sailfish and North Atlantic swordfish, 

including those landed on a charter/

headboat, to NMFS by calling 1–800–

894–5528 within 24 hours of the 

landing. For telephone reports, a contact 

phone number must be provided so that 

NMFS can call the angler back for 

follow up questions and to provide a 

confirmation of the reported landing. 

The landing telephone report has not 

been completed unless the angler has 

received a confirmation number from a 

NMFS’ designee.

(3) Alternative recreational catch 

reporting. Alternative recreational catch 

reporting procedures may be established 

by NMFS with cooperation from states 

which may include such methodologies 

as telephone, dockside or mail surveys, 

mail in or phone-in reports, tagging 

programs, catch cards, or mandatory 

check-in stations. A census or a 

statistical sample of persons fishing 

under the recreational fishing 

regulations of this part may be used for 

these alternative reporting programs 

(after the programs have received 

Paperwork Reduction Act approval from 

OMB). Persons or vessel owners 

selected for reporting will be notified by 

NMFS or by the cooperating state 

agency of the requirements and 

procedures for reporting recreational 

catch. Each person so notified must 

comply with those requirements and 

procedures. Additionally, NMFS may 

determine that recreational landing 

reporting systems implemented by the 

states, if mandatory, at least as 

restrictive, and effectively enforced, are 

sufficient for recreational landing 

monitoring as required under this part. 

In such case, NMFS will file with the 

Office of the Federal Register for 

publication notification indicating that 

compliance with the state system 

satisfies the reporting requirements of 

paragraph (c) of this section.

* * * * *

3. In § 635.20, paragraph (a) is revised 

to read as follows:

§ 635.20 Size limits.

(a) General. The CFL will be the sole 

criterion for determining the size and/or 

size class of whole (head on) Atlantic 

tunas for a vessel that has been issued 

a limited access North Atlantic 

swordfish permit under § 635.4. The 

LJFL will be the sole criterion for 

determining the size of whole (head on) 

North Atlantic swordfish for a vessel 

that has not been issued a limited access 

North Atlantic swordfish permit under 

§ 635.4. If the head or tail of an North 

Atlantic swordfish has been removed 

prior to or at the time of landing, the CK 

or minimum weight standard shall be 

applied in all cases.

* * * * *

4. In § 635.21, paragraph (d)(4)(iv) is 

added to read as follows:

§ 635.21 Gear operation and deployment 

restrictions.

* * * * *

(d) * * *

(4) * * *

(iv) Except for persons aboard a vessel 

that has been issued a limited access 

North Atlantic swordfish permit under 

§ 635.4, no person may fish for North 

Atlantic swordfish with, or possess a 

North Atlantic swordfish taken by, any 

gear other than handline or rod and reel.

5. In § 635.22, paragraphs (a), (c), and 

(d) are revised, and paragraphs (e) and 

(f) are added to read as follows:

§ 635.22 Recreational retention limits.

(a) General. Atlantic HMS caught, 

possessed, retained, or landed under 

these recreational limits may not be sold 

or transferred to any person for a 

commercial purpose. Recreational 

retention limits apply to a longbill 

spearfish taken or possessed shoreward 

of the outer boundary of the Atlantic 

EEZ, to a shark taken from or possessed 

in the Atlantic EEZ, to a North Atlantic 

swordfish taken from or possessed in 

the Atlantic Ocean, and to bluefin and 

yellowfin tuna taken from or possessed 

in the Atlantic Ocean. The operator of 

a vessel for which a retention limit 

applies is responsible for the vessel 

retention limit and for the cumulative 

retention limit based on the number of 

persons aboard. Federal recreational 

retention limits may not be combined 

with any recreational retention limit 

applicable in state waters.

* * * * *

(c) Sharks. One shark from either the 

large coastal, small coastal, or pelagic 

group may be retained per vessel per 

trip, subject to the size limits described 

in § 635.20(e), and, in addition, one 

Atlantic sharpnose shark may be 

retained per person per trip. Regardless 

of the length of a trip, no more than one 

Atlantic sharpnose shark per person 

may be possessed on board a vessel. No 

prohibited sharks listed in table 1(d) of 

appendix A to this part may be retained. 

The recreational retention limit for 

sharks applies to a person who fishes in 

any manner, except to a person aboard 

a vessel who has been issued a limited 

access vessel permit under § 635.4 for 

Atlantic sharks. If an Atlantic shark 

quota is closed under § 635.28, the 

recreational retention limit for sharks 

may be applied to persons aboard a 

vessel issued an Atlantic shark LAP 

under § 635.4, only if that vessel has 

also been issued an HMS Charter/

Headboat permit issued under § 635.4 

and is engaged in a for-hire trip.

(d) Yellowfin tuna. Three yellowfin 

tunas per person per day may be 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 715

retained. Regardless of the length of a 

trip, no more than three yellowfin tuna 

per person may be possessed on board 

a vessel. The recreational retention limit 

for yellowfin tuna applies to a person 

who fishes in any manner, except to a 

person aboard a vessel issued an 

Atlantic Tunas vessel permit under 

§ 635.4. The recreational retention limit 

for yellowfin tuna applies to persons, 

including captain and crew, aboard a 

vessel that has been issued an Atlantic 

HMS Charter/Headboat permit only 

when the vessel is engaged in a for-hire 

trip.

(e) Bluefin tuna. Refer to § 635.23 for 

Atlantic bluefin tuna recreational 

retention limits.

(f) North Atlantic swordfish. One 

North Atlantic swordfish per person up 

to three per vessel per day may be 

retained. Regardless of the length of a 

trip, no more than the daily limit of 

North Atlantic swordfish may be 

possessed on board a vessel. The 

recreational retention limit for North 

Atlantic swordfish applies to a person 

who fishes in any manner, except to a 

person aboard a vessel that has been 

issued a limited access North Atlantic 

swordfish permit under § 635.4.

6. In § 635.31, paragraph (b)(2)(ii) is 

revised and paragraph (b)(3) is added to 

read as follows:

§ 635.31 Restrictions on sale and 

purchase.

* * * * *

(b) * * *

(2) * * *

(ii) It is accompanied by a Billfish 

Certificate of Eligibility (COE) form, 

obtained from NMFS, or its equivalent 

that documents that the fish was 

harvested from other than the Atlantic 

Ocean management unit.

(A) The Billfish COE required under 

this section must indicate, in English, 

the name and homeport of the 

harvesting vessel, and the date and port 

of offloading. Only the purchaser of the 

billfish from the harvesting vessel must 

complete this information.

(B) The Billfish COE must be signed 

and dated by each dealer in possession 

of the product throughout the chain of 

custody up to but not including the 

consumer. This signature indicates a 

declaration that the billfish were not 

harvested from the management unit.

(C) A Billfish COE may refer to 

billfish taken from only one harvesting 

vessel. If a shipment contains billfish 

taken from more than one vessel, a 

separate billfish COE must accompany 

the shipment for each harvesting vessel.

(D) A model Billfish COE can be 

obtained by contacting the Division 

Chief. An equivalent form may be used 

provided it contains all of the 

information required under this section.

(3) For the purposes of this paragraph, 

a dealer or seafood processor means any 

individual, other than a consumer, who 

engages in any activity, other than 

fishing, of industry, trade, or commerce, 

including but not limited to the buying 

or selling of a regulated species or parts 

thereof and activities conducted for the 

purpose of facilitating such buying and 

selling.

* * * * *

7. In § 635.71, paragraph (b)(6) is 

revised and paragraphs (c)(6), (e)(14), 

and (e)(15) are added to read as follows:

§ 635.71 Prohibitions.

* * * * *

(b) * * *

(6) As an angler, fail to report a BFT, 

as specified in

§ 635.5(c)(1) or (3).

* * * * *

(c) * * *

(6) As an angler, fail to report a 

billfish, as specified in § 635.5(c)(2) or 

(3).

* * * * *

(e) * * *

(14) Exceed the recreational catch 

limit for North Atlantic swordfish, as 

specified in § 635.22(f).

(15) As an angler, fail to report a 

North Atlantic swordfish, as specified in 

§ 635.5(c)(2) or (3).

[FR Doc. 03–275 Filed 1–6–03; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 679

[Docket No. 011219306–2283–02; I.D. 

110501A]

RIN 0648–AM44

Fisheries of the Exclusive Economic 

Zone Off Alaska; Revisions to 

Observer Coverage Requirements for 

Vessels and Shoreside Processors in 

the North Pacific Groundfish Fisheries

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues a final rule to 

amend regulations governing the North 

Pacific Groundfish Observer Program 

(Observer Program). This action is 

necessary to refine observer coverage 

requirements and improve support for 

observers. This action is intended to 

ensure continued collection of high 

quality observer data to support the 

management objectives of 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) and to promote 

the goals and objectives contained in 

those FMPs.

DATES: Effective on February 5, 2003.

ADDRESSES: Copies of the Regulatory 

Impact Review/Final Regulatory 

Flexibility Analysis (RIR/FRFA) 

prepared for this regulatory action and 

the 1996 Environmental Assessment 

(EA) RIR/FRFA prepared for the Interim 

North Pacific Groundfish Observer 

Program and the RIR/FRFAs for the 

subsequent extensions of the Interim 

North Pacific Groundfish Observer 

Program may also be obtained from the 

Alaska Region, NMFS, P.O. Box 21668, 

Juneau, AK 99802, Attn: Lori Durall.

FOR FURTHER INFORMATION CONTACT: Sue 

Salveson, 907–586–7228.

SUPPLEMENTARY INFORMATION: NMFS 

manages the U.S. groundfish fisheries of 

the Gulf of Alaska (GOA) and the Bering 

Sea and Aleutian Islands Management 

Area (BSAI) in the Exclusive Economic 

Zone under the FMPs. The North Pacific 

Fishery Management Council (Council) 

prepared the FMPs pursuant to the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). Regulations 

implementing the FMPs appear at 50 

CFR part 679. General regulations that 

pertain to U.S. fisheries appear at 

subpart H of 50 CFR part 600.

The Council adopted and NMFS 

implemented the Interim Groundfish 

Observer Program (Interim Program) in 

1996, which superseded the North 

Pacific Fisheries Research Plan 

(Research Plan). The requirements of the 

1996 Interim Program were extended 

through 1997 (61 FR 56425, November 

1, 1996), again through 1998 (62 FR 

67755, December 30, 1997), again 

through 2000 (63 FR 69024, December 

15, 1998), and extended through 2002 

under a final rule published December 

21, 2000 (65 FR 80381). The program 

was extended again through 2007 by 

way of a final rule published on 

December 6, 2002 (67 FR 72595). The 

Interim Program provides the 

framework for the collection of data by 

observers to obtain information 

necessary for the conservation and 

management of the groundfish fisheries 

managed under the FMPs. Further, it 

authorizes mandatory observer coverage 

requirements for vessels and shoreside 

processors and establishes vessel, 

716 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

processor, and contractor 

responsibilities relating to the Observer 

Program. NMFS intends the Interim 

Program to be effective until a long-term 

program is developed and implemented 

that addresses several current concerns. 

These concerns include data integrity, 

observer compensation, working 

conditions for observers, and equitable 

distribution of observer costs.

NMFS is working with the Council 

and the Council’s Observer Advisory 

Committee (OAC) to address the above 

concerns and others through 

development of new options for an 

alternative infrastructure for the 

Observer Program.

A description of the regulatory 

provisions of the Interim Groundfish 

Observer Program was provided in the 

proposed and final rules implementing 

this program (61 FR 40380, August 2, 

1996; 61 FR 56425, November 1, 1996, 

respectively) as well as the proposed 

and final rules extending this program 

through 1998 and again through 2000 

(62 FR 49198, September 19, 1997; 62 

FR 67755, December 30, 1997; 63 FR 

47462, September 8, 1998; and 63 FR 

69024, December 15, 1998, 

respectively).

A proposed rule to amend regulations 

governing observer coverage 

requirements for vessels and shoreside 

processors in the North Pacific 

Groundfish Fisheries was published in 

the Federal Register on April 2, 2002 

(67 FR 15517), for a 30–day public 

review and comment period that ended 

on May 1, 2002. NMFS received 2 letters 

of comment on the proposed rule which 

are summarized and responded to in 

Response to Comments, below.

This final rule addresses concerns 

about (1) shoreside and stationary 

floating processor observer coverage; (2) 

shoreside processor observer logistics; 

(3) observer coverage requirements for 

vessels fishing for groundfish with pot 

gear; and (4) confidentiality of observer 

personal information.

Shoreside or stationary floating 

processor observer coverage. New 

regulations will maintain the current 

monthly observer coverage periods at 

shoreside or stationary floating 

processors based on monthly landings 

projections. However, during a month 

when a directed fishery for pollock or 

Pacific cod closes, a shoreside or 

stationary floating processor with 100–

percent coverage requirements that 

received pollock or Pacific cod from the 

fishery that closed in that given month 

would have the option to reduce 

observer coverage to 30–percent 

coverage requirements for the remainder 

of that month under certain conditions. 

These conditions are: (1) the shoreside 

or stationary floating processor must 

maintain observer coverage for 30 

percent of all days that groundfish are 

received or processed for the remainder 

of that month; and (2) groundfish 

landings received by the shoreside or 

stationary floating processor may not 

exceed 250 mt/calendar week for the 

remainder of that month. If a shoreside 

or stationary floating processor is 

expected to receive greater than 250 mt/

wk during any calendar week of that 

month, the shoreside or stationary 

floating processor would be required to 

return to 100–percent observer coverage 

for the days fish are received or 

processed during that week until all 

groundfish received during that week is 

processed.

The reduced observer coverage period 

for a given shoreside or stationary 

floating processor would be authorized 

beginning on the fourth calendar day 

following the day that a pollock or cod 

fishery closes, allowing for observation 

of the delivery and processing of fish 

received prior to the closure, and would 

end on the last day of that month. 

Observer coverage for the month 

following would be based on monthly 

landings projections and thresholds as 

specified under current regulations at 

§ 679.50, but also may be reduced for 

that month under the conditions of this 

action.

The Community Development Quota 

(CDQ) and American Fisheries Act 

(AFA) programs’ observer coverage 

requirements found at § 679.50(d)(4) 

and (5), respectively, currently 

supersede general observer coverage 

requirements for shoreside or stationary 

floating processors, and will continue to 

take precedence over this allowance for 

reduced coverage.

Shoreside or stationary floating 

processor observer logistics. This final 

rule amends the observer regulations to 

require the observer provider company 

to provide the following logistical 

support to observers deployed at 

shoreside or stationary floating 

processors: Adequate housing meeting 

certain standards; reliable 

communication equipment such as an 

individually assigned phone or pager for 

notification of upcoming deliveries or 

other necessary communication; and, if 

the observer’s accommodations are 

greater than 1 mile away from the 

processing facility, reliable motorized 

transportation to the shoreside 

processor that ensures timely arrival to 

allow the observer to complete assigned 

duties.

Groundfish pot fishery observer 

coverage requirements. This final rule 

also amends regulations governing 

coverage requirements for the 

groundfish pot gear fishery to require a 

vessel equal to or longer than 60 ft (18.3 

m) length overall (LOA), fishing with 

pot gear that participates more than 3 

days in a directed fishery for groundfish 

in a calendar quarter, to carry an 

observer during at least 30 percent of 

the total number of pot retrievals for 

that calendar quarter. Such vessels 

would also need to continue to carry an 

observer for at least one entire fishing 

trip using pot gear in a calendar quarter, 

for each of the groundfish fishery 

categories in which the vessel 

participates during that calendar 

quarter. Groundfish will still be 

required to be retained each day the 

observer is on board and gear is 

retrieved, in order for the gear retrieved 

on that day to count toward observer 

coverage requirements.

Confidentiality of observer personal 

information. Observer providers are 

required to ensure that all records on 

individual observer performance 

received from NMFS under the routine 

use provision of the Privacy Act remain 

confidential and are not further released 

to anyone outside the employ of the 

observer provider company to whom the 

observer was contracted except with 

written permission of the observer.

Response to Comments

Two letters on the April 2, 2002, 

proposed rule (67 FR 15517) were 

received that contained a total of 15 

unique comments. Comments are 

summarized and responded to here.

Comment 1: Observer coverage should 

be flexible before a fishery opens as well 

as when it closes. Many of the directed 

fisheries in the Gulf of Alaska start midmonth. The way the regulations are 

written, a shoreside processor is 

required to have an observer 100 

percent of the time during that month 

even though the fishery which will 

trigger the coverage will not occur until 

many days into the month. The 

regulation change regarding the step 

down in coverage needs to be a two-way 

door, prior to a fishery season opening 

date and after a fishery closure date.

Response: NMFS considered both 

options in the analysis prepared for the 

proposed rule and continues to support 

the revised coverage regulations as 

proposed. The analysis showed that if 

shoreside processors were given the 

leeway to reduce coverage based on 

some landings criteria both before and 

after fishery closures, observer coverage 

for shoreside plants would essentially 

shift to a system of weekly observer 

coverage based on weekly landings 

projections. The analysis concluded that 

such a change would result in an 

observer coverage system for shoreside 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 717

processors that would be extremely 

burdensome, both financially and 

logistically, to shoreside processors, 

observer providers, and observers. The 

primary causes of this burden would be 

the logistical complexities and costs 

involved in deploying observers to and 

from shoreside processors on a weekly 

basis. NMFS would be supportive of a 

reexamination of these issues in the 

future, if the Council develops an 

alternative observer delivery model that 

would provide for weekly coverage 

standards in a cost effective and 

practical manner.

Comment 2: Virtually all IFQ 

sablefish received by Kodiak shoreside 

processors are eastern headed and 

gutted fish. The present shorebased 

observer regulations require 100 percent 

observer coverage for sablefish landings 

for some months. Why do observers 

need to observe these landings if there 

are no biological data to collect from 

headed/gutted fish? IFQ sablefish 

should be exempted from shorebased 

coverage requirements.

Response: Observer data are used in 

preparing annual stock assessments for 

sablefish. In particular, both catch rate 

and length data are used. Not all IFQ 

sablefish are delivered headed and 

gutted, some are delivered whole in 

refrigerated seawater. Observers obtain 

length data and otoliths from those fish. 

Observers also collect information from 

other groundfish that are delivered with 

IFQ sablefish.

Comment 3: According to the analysis 

prepared for this proposed rule, a 

shoreside processor that has chosen to 

reduce observer coverage to 30 percent 

does not have the ability to increase 

coverage back to the 100–percent level 

for the pollock and Pacific cod reopener. 

This provision needs to be highlighted 

in the regulations. NMFS also needs to 

make a concerted effort to communicate 

with industry regarding any reopening 

before the 4 day window expires after a 

fishery closes, when a plant is allowed 

to reduce coverage from 100 percent to 

30 percent for the remainder of the 

month.

Response: The proposed rule correctly 

stated that a shoreside processor that 

has reduced observer coverage from 100 

percent to 30 percent in a given month 

under the terms of this rule, and 

subsequently expects to receive or 

process greater than 250 mt per week 

upon the reopening of a Pacific cod or 

pollock fishery in that same month, 

must return to 100–percent coverage for 

each subsequent week of that month in 

which 250 mt or greater is expected to 

be received or processed. The 

commentor is correct in asserting that 

the analysis prepared for this rule did 

not include the provision for returning 

to 100–percent coverage upon the 

reopening of a Pacific cod or pollock 

fishery. The analysis has since been 

revised to reflect this provision in the 

rule, and no change from the proposed 

rule is made to the final rule.

NMFS strives for timely 

communication with industry regarding 

the reopening of a closed fishery. Once 

harvest amounts relative to available 

total allowable catch are determined, 

NMFS provides the public notice of any 

fishery reopening in a manner that is 

intended to minimize operational costs 

to industry. In 2002, the reopenings of 

the GOA pollock fishery occurred only 

in the Central Regulatory Area 

(statistical area 630) and were 

announced within a 3–4 day time 

period after the fishery closed. NMFS 

intends to continue to provide this level 

of effective response to the extent 

practicable.

Comment 4: According to the analysis 

prepared for the proposed rule, the 

ability to reduce observer coverage to 30 

percent (from 100 percent during a 

given month) related to fisheries 

closures other than for Pacific cod or 

pollock was not considered because of 

concerns regarding loss of data for a 

variety of species that are landed in 

small quantities. However, the Kodiak 

shoreside processors are the only 

shorebased processors in Alaska that 

currently offer markets for the directed 

rockfish and flatfish harvests. Therefore, 

this exclusion directly impacts this 

subset of processors. The idea that more 

observer data will be collected if the 

plant maintains 100–percent observer 

coverage beyond the end of the season 

is flawed. Once a fishery closes, no 

more catch will be delivered for those 

species and, therefore, there is no 

additional opportunity to collect data. 

Also, for both flatfish and rockfish, 

allocations are split between the 

catcher/processor and the shorebased 

processor sector, so additional data are 

available from the catcher/processors. 

Allowing the regulations to extend to 

the other directed fisheries besides 

pollock and Pacific cod would help 

reduce shorebased observer cost without 

impacting observer data.

Response: NMFS analyzed the 

impacts of the reduction of shoreside 

processor observer coverage 

requirements on observer data and 

associated costs based on requests from 

industry and the resulting Council 

motion. The industry request and 

Council motion were limited to 

reducing shoreside observer coverage 

from 100 percent to 30 percent based on 

pollock and Pacific cod directed fishery 

closures. Therefore, consideration of 

observer coverage reduction at shoreside 

processors relative to closures for other 

directed fisheries is beyond the scope of 

the analysis prepared for this action. 

While there may be some advantage in 

extending this type of coverage 

reduction mechanism to other directed 

fishery closures, NMFS intends to 

implement this change as described in 

the proposed rule. NMFS, in 

consultation with the Council, may 

consider extending this provision to 

other fisheries after review of the 

implementation of this provision in the 

pollock and Pacific cod fisheries.

Comment 5: NMFS has indicated that 

in some circumstances it is acceptable 

for an observer to lodge on a vessel after 

the observer has been released from 

duty on a vessel, but not prior to the 

requested date of deployment of the 

observer to a vessel. However, no 

guidelines exist as to what those 

acceptable circumstances might be. 

NMFS has provided verbal guidance 

that it would be acceptable for an 

observer to lodge on a vessel if the 

observer was released from duty at 3 

a.m.; but apparently it would not be 

acceptable to lodge on the vessel if the 

vessel wants to depart at 3 a.m. Not 

allowing contractors to have the 

flexibility to lodge observers on vessels 

that they are or will be assigned to, and 

not allowing vessels to have the option 

to minimize lodging costs will 

significantly increase costs to vessels 

who frequently volunteer to lodge their 

observers earlier or later than needed for 

their coverage.

Response: The final rule has been 

clarified to provide clearer guidance on 

when observers may be housed on 

vessels they will be, or currently are, 

assigned to. The intent of this regulation 

is to avoid the lodging of an observer 

aboard a vessel on which he or she is 

not working or currently assigned. An 

observer released from duty aboard a 

vessel could lodge aboard the vessel for 

no more than 24 hours provided the 

skipper or at least one crew member is 

aboard while the observer is lodged 

there, and provided this lodging is 

logistically practical for the observer 

and the vessel personnel. If the observer 

wants to get off the vessel as soon as it 

docks or if the vessel skipper requests 

the observer leave upon docking, 

arrangements must be made by the 

observer provider for the observer to 

move to land-based accommodations. 

Likewise, an observer assigned to a 

vessel would be allowed to lodge on 

that vessel up to 24 hours prior to 

departure, provided the skipper or at 

least one crew member is aboard, and as 

long as this is logistically practical for 

the observer and the vessel personnel.

718 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

Comment 6: Can shoreside processors 

provide their own internal pager system 

as a means for communication with the 

observer assigned to that processor?

Response: The observer provider 

company is ultimately responsible for 

ensuring that observers are issued 

individual communications devices and 

maintaining them in working order as 

specified in the rule. If it is logistically 

more convenient to meet these 

requirements through an arrangement 

with the shoreside processor, the 

observer provider company may do so.

Comment 7: If the present 

communication system between 

shoreside processors and their observers 

is working, is a pager or cell phone 

necessary?

Response: Yes. While the present 

communications systems between 

processors and observers may be 

successful for some processors, the 

current approach is not working for 

others. In light of these failures, NMFS 

believes that regulation on how these 

important communications must occur 

is necessary to some degree. 

Communications are largely reliant on 

the dependability of the individuals 

involved, as well as the 

communications equipment available. 

In cases where individuals involved are 

highly dependable, any system has a 

better chance of working. NMFS cannot 

control the level of human 

dependability in all cases, but the 

agency can require a certain standard for 

communications equipment that must 

be available to individual observers. In 

promulgating such regulations, NMFS 

must apply these requirements to all 

shoreside processors without bias.

Comment 8: What accommodations 

will be made for those shoreside 

processors where cell and or pager 

services are not available?

Response: Where cell phone or pager 

service is not available at the location of 

the shoreside processor, walkie-talkies 

may be an acceptable substitute. 

However, due to inherent range 

restrictions and unreliability of these 

devices, they would be approved only 

on a case by case basis. Where cell 

phone or pager service is not available 

and walkie talkies are not approved, 

another method of communication 

between the processor and the observer 

would need to be proposed by the 

observer provider company to the 

Observer Program for approval.

Comment 9: Who is responsible for 

lack of compliance when an observer 

drops his or her cell/pager in the harbor 

while going out to a vessel and it takes 

a lot of money and a week to get a new 

one to the observer? What obligation 

does the plant have to notify the 

observer during that down time?

Response: The observer provider 

company is responsible for ensuring 

observers have individual 

communications devices in working 

order. If a device ceases to be in working 

order, the provider must provide a back 

up device in a timely manner such that 

the observer is able to communicate 

with the processor regarding the next 

delivery following the loss or failure of 

the communications device. In light of 

that, having one or two working backup devices on site at all times to avoid 

‘‘down time’’ makes logistical sense. 

The regulations do not include an 

exception for ‘‘down time’’.

Comment 10: Who is liable if the 

observer takes the pager out of cell/

pager range?

Response: The observer provider 

company is responsible for providing 

the equipment in working order. As is 

currently the case, the observer is 

expected to remain in reasonable 

communication with the processor. That 

includes remaining in range of such 

communication devices as the 

individual circumstances of the 

shoreside processor operations and 

location dictate.

Comment 11: It is unclear whether the 

criteria for lodging an observer assigned 

to a shoreside plant ‘‘within a mile of 

a shoreside processor’’ is determined by 

road distance or ‘‘as the crow flies’’.

Response: This requirement relies on 

the distance along the road or path 

traveled by the observer between his or 

her lodging and the shoreside processor 

to which he or she is assigned.

Comment 12: In some ports where 

observers lodge away from the plant 

premises, taxi service is not available 24 

hours/day. Under these conditions, 

what will happen when a taxi is not 

available and the observer has to rely on 

transportation from the plant given that 

NMFS has implied in the analysis that 

plant transportation is unreliable? 

Plants which have to lodge their 

observers more than a mile away will 

see a significant increase in 

transportation costs for their observers. 

Is there any time a taxi would not be 

considered acceptable motorized 

transportation?

Response: Reliable, alternate 

arrangements that meet the 

requirements of the rule must be made 

when a taxi is not available. A taxi 

would not be considered acceptable 

transportation if it cannot transport an 

observer to the shoreside processor in a 

timely manner to allow the observer to 

perform his or her official duties. These 

duties include being present at the 

processor at appropriate times during 

the delivery and/or processing of the 

fish from delivery that requires 

sampling. Once in a while, a taxi may 

not be able to deliver an observer to the 

assigned shoreside processor in a timely 

manner to perform assigned duties due 

to unexpected mechanical break down 

of a taxi or other unforeseen 

circumstances. However, if such events 

become chronic and transportation by 

taxi becomes unreliable and untimely, 

alternate transportation arrangements 

that conform to the regulatory 

requirements must be made.

Comment 13: Do observers still have 

the option of walking or taking a bike 

to their assigned plant if they prefer to 

do so?

Response: Yes. Observers may choose 

to walk or ride a bicycle between their 

shoreside lodging and the shoreside 

processor to which they are assigned, as 

long as transportation, as described in 

regulations, is always available.

Comment 14: If this new regulation 

goes into effect, vessels using pot gear 

would be forced to wait until near the 

end of the season or quarter to obtain 

their 30–percent coverage for the 

number of pot lifts they performed. 

Consequently, the demand for observer 

coverage may exceed the availability of 

observers. Vessels may not be able to 

comply with required coverage as 

contractors would be less likely to be 

able to cover all of the pot boats during 

the end of the season crunch. 

Additionally, under those 

circumstances, vessels will see cost 

increases because they won’t be able to 

share observer airfare, transportation 

and subsistence costs with other vessels.

Response: NMFS believes that proper 

planning by pot gear vessels and 

observer providers can ensure observer 

availability in most cases. However, 

NMFS does acknowledge that last 

minute changes in management 

decisions related to fishery openings 

and closures can present challenges for 

compliance with observer coverage 

requirements. NMFS strives to take 

coverage needs into consideration when 

determining midseason fishery 

openings.

This regulation, which bases observer 

coverage levels on the actual amount of 

gear fished, rather than days fished, is 

intended to ensure observer data that 

are more representative of actual fishing 

effort. The majority of vessels, for which 

days fished does reflect average fishing 

effort over the course of a quarter or 

season, should see no substantive 

change in the way they estimate 

observer coverage needs. Likewise, no 

more problem should exist with 

observer availability at the end of the 

quarter or season than what is currently 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 719

experienced. Additionally, observer 

coverage needs should be somewhat 

predictable over time, allowing vessels 

to meet coverage needs prior to the end 

of the season or quarter.

Comment 15: We believe that this 

proposed regulation would not solve the 

identified issue of pot gear vessels going 

out just beyond the harbor and pulling 

one pot to obtain observer coverage for 

that day. Vessels would now be able to 

set just a few pots and pull them as 

many times as possible in one day to 

obtain a large portion of their coverage.

Response: NMFS does not anticipate 

this type of behavior, particularly 

because it would not be cost effective. 

If and when this behavior occurs, NMFS 

will respond accordingly.

Changes From the Proposed Rule

To provide clarity in the application 

of certain provisions of this action, 

regulatory text in § 679.50(d)(3) and 

(i)(2) is changed from the proposed rule. 

Nearly all Observer Program regulations 

that apply to shoreside processors also 

apply to stationary floating processors. 

The proposed rule identified only 

shoreside processors in the revised 

language for these paragraphs. Thus, the 

final rule is changed from the proposed 

rule to apply to both shoreside 

processors and stationary floating 

processors.

The final rule also is changed to 

reflect revised regulatory text that 

became effective January 1, 2003, under 

a separate final rule that extended the 

Observer Program through December 31, 

2007 (67 FR 72595, December 6, 2002). 

These changes include redesignating 

proposed changes to paragraphs (i)(2)(v) 

and (i)(2)(xiii) as final changes to 

paragraphs (i)(2)(vi) and (i)(2)(xii), 

respectively. The portion of 

redesignated paragraph (i)(2)(xii) that 

addressed an expectation of observer 

providers to monitor observer 

performance is deleted because this 

provision was superceded in the 

December 6, 2002, final rule. Last, 

redesignated paragraph (i)(2)(vi) is 

revised to incorporate the regulatory 

guidance referenced to in the response 

to comment 5.

Classification

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866.

The amendment of the existing 

regulations implementing the Interim 

Observer Program is consistent with the 

intent and purpose of the Interim 

Observer Program. These actions follow 

previous actions to refine observer 

coverage requirements and improve 

support for observers. Previous actions 

addressing these matters were analyzed 

in the EA/RIR/FRFA for the Interim 

Observer Program dated August 27, 

1996, the RIR/FRFA for the extension of 

the Interim Observer Program through 

1998 dated October 28, 1997, and the 

RIR/FRFA for the extension of the 

Interim Observer Program through 2000, 

dated June 4, 1998. Copies of these 

analyses are available from NMFS (see 

ADDRESSES).

NMFS prepared a FRFA which 

describes the impact this final rule 

would have on small entities. A copy of 

the FRFA is available from the Regional 

Administrator (see ADDRESSES). In 

addition to the discussion below, the 

FRFA incorporates the Initial Regulatory 

Flexibility Analysis (IRFA) and its 

findings, and the finding from the EA/

RIR/FRFA for the Observer Program and 

its extension. No comments on the IRFA 

were received during the public 

comment period on the proposed rule. 

Thus, no new data were incorporated 

into the analysis during the comment 

period that would result in findings that 

differ from those previously described. 

A description of the impacts of this 

action on small entities was 

summarized in the proposed rule (67 FR 

15520, April 2, 2002) and is not 

repeated here.

This action includes measures that 

will minimize the significant economic 

impacts of observer coverage 

requirements on at least some small 

entities. Vessels less than 60 ft (18.3 m) 

LOA are not required to carry an 

observer while fishing for groundfish. 

Vessels 60 ft (18.3 m) and greater, but 

less than 125 ft (38.1 m) LOA, have 

lower levels of observer coverage than 

those 125 ft (38.1 m) and above. Since 

the inception of the North Pacific 

Groundfish Observer Program in 1989, 

NMFS has strived to mitigate the 

economic impacts of the observer 

program on small entities. In doing so, 

NMFS has not significantly adversely 

affected the implementation of the 

conservation and management 

responsibilities imposed by the FMPs 

and the Magnuson-Stevens Fishery 

Conservation and Management Act.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and 

recordkeeping requirements.

Dated: December 30, 2002.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service.

For the reasons set out in the 

preamble, 50 CFR part 679 is amended 

as follows:

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA

1. The authority citation for 50 CFR 

part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 et 

seq., and 3631 et seq.

2. In § 679.50, paragraphs (d)(3) 

through (6) are redesignated as (d)(4) 

through (7); paragraph (c)(1)(vii), newly 

redesignated paragraph (d)(4) and 

paragraphs (i)(2)(vi) and (i)(2)(xii) are 

revised; and new paragraph (d)(3) is 

added to read as follows:

§ 679.50 Groundfish Observer Program 

applicable through December 31, 2007.

* * * * *

(c) * * *

(1) * * *

(vii) Vessels using pot gear. (A) A 

catcher/processor or catcher vessel 

equal to or greater than 60 ft (18.3 m) 

LOA fishing with pot gear that 

participates for more than 3 fishing days 

in a directed fishery for groundfish in a 

calendar quarter must carry an observer:

(1) For at least 30 percent of the total 

number of pot retrievals for that 

calendar quarter, and

(2) For at least one entire fishing trip 

using pot gear in a calendar quarter, for 

each of the groundfish fishery categories 

defined under paragraph (c)(2) of this 

section in which the vessel participates.

(B) Groundfish are required to be 

retained each day that pot gear is 

retrieved in order for gear retrieved that 

day to count toward observer coverage 

requirements for all catcher vessels and 

catcher/processors using pot gear and 

required to carry observers.

* * * * *

(d) * * *

(3) Is subject to observer requirements 

specified in paragraph (d)(1) of this 

section that receives pollock or Pacific 

cod, may reduce observer coverage in 

the event that a directed fishery for such 

species closes, subject to the following 

conditions:

(i) The shoreside or stationary floating 

processor must maintain observer 

coverage for 30 percent of all days that 

groundfish are received or processed, 

beginning on the fourth calendar day 

following the day that the directed 

fishery for pollock or Pacific cod was 

closed and ending on the last day of the 

month, except as allowed in this 

paragraph (d)(3)(iv) of this section.

(ii) Observer coverage for the month 

following the month with reduced 

observer coverage will be based on 

monthly landings projections and 

thresholds as specified in paragraphs 

(d)(1) and (2) of this section, but may 

also be reduced for that subsequent 

720 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

month as specified in this paragraph 

(d)(3) of this section.

(iii) Total groundfish landings 

received by a shoreside or stationary 

floating processor under reduced 

observer coverage as authorized under 

this paragraph (d)(3) may not exceed 

250 mt per calendar week.

(iv) If greater than 250 mt in round 

weight equivalent of groundfish are 

projected to be received in a given 

calender week by a shoreside or 

stationary floating processor during a 

month with reduced observer coverage, 

as authorized under this paragraph 

(d)(3), the shoreside or stationary 

floating processor must return to 

observer coverage requirements as 

specified in paragraph (d)(1) of this 

section until all fish received during 

that week is processed. The shoreside or 

stationary floating processor may then 

return to reduced observer coverage as 

authorized under this paragraph (d)(3) 

for the remainder of the calendar month.

(4) Offloads pollock at more than one 

location on the same dock and has 

distinct and separate equipment at each 

location to process those pollock and 

that receives pollock harvested by 

catcher vessels in the catcher vessel 

operational area.

* * * * *

(i) * * *

(2) * * *

(vi) Observer deployment logistics. 

(A) An observer provider must provide 

to each of its observers under contract:

(1) All necessary transportation, 

including arrangements and logistics, of 

observers to the initial location of 

deployment, to all subsequent vessel 

and shoreside or stationary floating 

processor assignments during that 

deployment, and to the debriefing 

location when a deployment ends for 

any reason; and

(2)Lodging, per diem, and any other 

necessary services to observers aboard 

fishing vessels or at the site of shoreside 

or stationary floating processing 

facilities.

(B) Except as provided in paragraphs 

(i)(2)(vi)(C) and (i)(2)(vi)(D) of this 

section, each observer deployed to a 

shoreside processing facility, and each 

observer between vessel or shoreside 

assignments while still under contract 

with a certified observer provider 

company, shall be provided with 

accommodations at a licensed hotel, 

motel, bed and breakfast, or with private 

land-based accommodations for the 

duration of each shoreside assignment 

or period between vessel or shoreside 

assignments. Such accommodations 

must include an individually assigned 

bed for each observer for the duration of 

that observer’s shoreside assignment or 

period between vessel or shoreside 

assignments, such that no other person 

is assigned to that bed during the same 

period of the observer’s shoreside 

assignment or period between vessel or 

shoreside assignments. Additionally, no 

more than four beds may be in any 

individual room housing observers at 

accommodations meeting the 

requirements of this section.

(C) Observers may be housed on 

vessels they will be, or currently are, 

assigned to for a period not to exceed 24 

hours:

(1)Prior to their vessel’s initial 

departure from port;

(2)Following the completion of an 

offload where the observer has duties 

and is scheduled to disembark; or

(3)Following the completion of an 

offload where the observer has duties 

and is scheduled to disembark.

(D) During all periods an observer is 

housed on a vessel, the observer 

provider must ensure that the vessel 

skipper or at least one crew member is 

aboard and that such housing is 

logistically practical for the observer 

and the vessel personal. Alternative 

housing accommodations must be 

arranged if the conditions in this 

paragraph (D) are not met or if the 

observer wants to get off the vessel as 

soon as it docks or if the vessel operator 

requests the observer to leave upon 

docking.

(E) Each observer deployed to 

shoreside processing facilities shall be 

provided with individually assigned 

communication equipment in working 

order, such as a cell phone or pager for 

notification of upcoming deliveries or 

other necessary communication. Each 

observer assigned to a shoreside 

processing facility located more than 1 

mile from the observer’s local 

accommodations shall be provided with 

motorized transportation that will 

ensure the observer’s arrival at the 

processing facility in a timely manner 

such that the observer can complete his 

or her assigned duties. Unless 

alternative arrangements are approved 

by the Observer Program Office:

* * * * *

(xii) Maintain confidentiality of 

information. An observer provider must 

ensure that all records on individual 

observer performance received from 

NMFS under the routine use provision 

of the Privacy Act remain confidential 

and are not further released to anyone 

outside the employ of the observer 

provider company to whom the observer 

was contracted except with written 

permission of the observer.

* * * * *

[FR Doc. 03–177 Filed 1–6–03; 8:45 am]

BILLING CODE 3510–22–S

This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

721

Vol. 68, No. 4

Tuesday, January 7, 2003

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938

[PA–139–FOR] 

Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are announcing the proposed 

removal of a required amendment to the 

Pennsylvania regulatory program (the 

‘‘Pennsylvania program’’) under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). OSM is proposing to remove the 

required amendment because the 

Federal regulation upon which the 

required amendment is based no longer 

exists. This document gives the times 

and locations that the Pennsylvania 

program is available for your inspection, 

the comment period during which you 

may submit written comments on the 

amendment, and the procedures that we 

will follow for the public hearing, if one 

is requested.

DATES: We will accept written 

comments on this amendment until 4 

p.m., e.s.t. on February 6, 2003. If 

requested, we will hold a public hearing 

on the amendment on February 3, 2003. 

We will accept requests to speak at a 

hearing until 4 p.m., e.s.t. on January 22, 

2003.

ADDRESSES: You should mail or hand 

deliver written comments and requests 

to speak at the hearing to George Rieger 

at the address listed below. 

You may review copies of the 

Pennsylvania program, this amendment, 

a listing of any scheduled public 

hearings, and all written comments 

received in response to this document at 

the addresses listed below during 

normal business hours, Monday through 

Friday, excluding holidays. You may 

receive one free copy of the amendment 

by contacting OSM’s Harrisburg Field 

Office.

Mr. George Rieger, Director, Harrisburg 

Field Office, Office of Surface Mining 

Reclamation and Enforcement, 

Transportation Center, Third Floor, 

Suite 3C, 4th and Market Streets, 

Harrisburg, PA 17101, (717) 782–

4036, grieger@osmre.gov.

J. Scott Roberts, Director, Bureau of 

Mining and Reclamation, 

Pennsylvania Department of 

Environmental Protection, Rachel 

Carson State Office Building, PO Box 

8461, Harrisburg, PA 17105–8461, 

(717) 787–5103.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Telephone: (717) 782–

4036 Internet: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations

I. Background on the Pennsylvania 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of the Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to the Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the 

Pennsylvania program on July 30, 1982. 

You can find background information 

on the Pennsylvania program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval of the Pennsylvania program 

in the July 30, 1982, Federal Register

(47 FR 33050). You can also find later 

actions concerning Pennsylvania’s 

program and program amendments at 30 

CFR 938.11, 938.12, 938.15, and 938.16. 

II. Description of the Proposed 

Amendment 

The regulations at 30 CFR 938.16(ss) 

require Pennsylvania to submit a change 

to its regulations under the ownership 

and control provisions concerning an 

applicant’s eligibility for receiving a 

provisionally issued permit when 

outstanding violations are present. 

Specifically, it mandates that 

Pennsylvania amend 25 Pa. Code 

86.37(a)(8) and (11) to require a permit 

applicant to submit proof that a 

violation has been corrected or is in the 

process of being satisfactorily corrected 

within 30 days of the initial judicial 

review affirming the violation.

The Federal provision corresponding 

to the required amendment at 938.16(ss) 

was formerly located at 30 CFR 

773.15(b)(1)(ii). However, on December 

19, 2000, we made changes to the 

Federal rules regarding ownership and 

control that eliminated this provision 

(65 FR 79582). In discussing the rule 

change at 30 CFR 773.15(b)(1)(ii) we 

noted:

Under the previous rule at 

§ 773.15(b)(1)(ii), the permittee had 30 days 

from the date that the initial judicial review 

decision affirmed the validity of the violation 

to submit proof that the violation was being 

corrected to the satisfaction of the agency 

with jurisdiction over the violation. In 

contrast, final § 773.14(c) requires that the 

regulatory authority initiate action to 

suspend or revoke the permit as 

improvidently issued if the disposition of 

challenges or administrative or judicial 

appeals affirms the violation or ownership or 

control listing or finding. We made this 

change to ensure prompt implementation of 

the section 510(c) permit block sanction once 

the validity of a violation or ownership or 

control listing or finding is affirmed on 

appeal. (The previous rule did not specify 

what action the regulatory authority must 

take if the permittee did not submit the 

required proof within 30 days.) 65 FR at 

79623.

Rather than requiring the permittee to 

submit proof that an affirmed violation 

is being corrected, as required in 30 CFR 

938.16(ss), the new rule requires the 

regulatory authority to initiate action to 

suspend or revoke the permit if a 

violation is affirmed. Because the 

Federal rule change renders the required 

amendment at 30 CFR 938.16(ss) 

unnecessary, we are proposing to 

remove the required amendment. 

However, at a later date, we will be 

informing Pennsylvania and other States 

by letter of any changes required in their 

722 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

programs as a result of the abovereferenced change to the Federal 

ownership and control regulations, as 

well as a result of other changes we 

made to those regulations on December 

19, 2000. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the removal of 

the required amendment satisfies the 

applicable program criteria of 30 CFR 

732.15. 

Written Comments 

Send your written or electronic 

comments to OSM at the address given 

above. Your written comments should 

be specific, pertain only to the issues 

proposed in this rulemaking, and 

include explanations in support of your 

recommendations. We will not consider 

or respond to your comments when 

developing the final rule if they are 

received after the close of the comment 

period (see DATES). We will make every 

attempt to log all comments into the 

administrative record, but comments 

delivered to an address other than the 

Harrisburg Field Office may not be 

logged in. 

Electronic Comments 

Please submit Internet comments as 

an ASCII or Word file avoiding the use 

of special characters and any form of 

encryption. Please also include ‘‘Attn: 

SATS No. PA–139’’ and your name and 

return address in your Internet message. 

If you do not receive a confirmation that 

we have received your Internet message, 

contact the Harrisburg Field Office at 

(717) 782–4036. 

Availability of Comments 

We will make comments, including 

names and addresses of respondents, 

available for public review during 

normal business hours. We will not 

consider anonymous comments. If 

individual respondents request 

confidentiality, we will honor their 

request to the extent allowable by law. 

Individual respondents who wish to 

withhold their name or address from 

public review, except for the city or 

town, must state this prominently at the 

beginning of their comments. We will 

make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public review in their entirety. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., e.s.t. on January 22, 2003 If you 

are disabled and need special 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

a hearing.

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at the 

public hearing provide us with a written 

copy of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If only one person requests an 

opportunity to speak, we may hold a 

public meeting rather than a public 

hearing. If you wish to meet with us to 

discuss the amendment, please request 

a meeting by contacting the person 

listed under FOR FURTHER INFORMATION

CONTACT. All such meetings are open to 

the public and, if possible, we will post 

notices of meetings at the locations 

listed under ADDRESSES. We will make 

a written summary of each meeting a 

part of the administrative record. 

IV. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. In 65 FR 79582, we made 

several changes to the Federal 

regulations, including the elimination of 

the counterpart Federal regulation. 

Taking all of the changes made into 

consideration, we noted in that Federal 

Register notice that ‘‘in accordance with 

Executive Order 12630, the rule does 

not have significant takings 

implications. This determination is 

based on the fact that the rule will not 

have an impact on the use or value of 

private property and so, does not result 

in significant costs to the government.’’

Since the elimination of the counterpart 

Federal regulation had no takings 

implications, the removal of the 

amendment requiring the corresponding 

State provision will have no takings 

implications. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

under Executive Order 12866.

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR Parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

SMCRA. Section 503(a)(7) requires that 

State programs contain rules and 

regulations ‘‘consistent with’’

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 723

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required.

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4332(2)(C). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). In the December 19, 

2000 Federal Register notice 

eliminating the counterpart Federal 

regulation, we estimated that there 

would be no change to industry costs 

resulting from the changes made to 30 

CFR part 773, which, before the 

changes, had contained the counterpart 

Federal regulation (65 FR 79582, 79659). 

Similarly, the removal of the 

amendment requiring the corresponding 

State provision will not have a 

significant economic impact. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

For the reasons stated above, this rule: 

(a) Does not have an annual effect on the 

economy of $100 million; (b) Will not 

cause a major increase in costs or prices 

for consumers, individual industries, 

Federal, State, or local governmental 

agencies or geographic regions; and (c) 

Does not have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that, by removing the required 

amendment, we are not mandating any 

State action.

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface 

mining, Underground mining.

Dated: November 15, 2002. 

Vann Weaver, 

Acting Regional Director, Appalachian 

Regional Coordinating Center.

[FR Doc. 03–157 Filed 1–6–03; 8:45 am] 

BILLING CODE 4310–05–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52

[VA085/086/089/102/103–5046b; FRL–7428–

1] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Reorganization of and Revisions to 

Administrative and General Conformity 

Provisions; Documents Incorporated 

by Reference; Recodification of 

Existing SIP Provisions

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the 

Commonwealth of Virginia. EPA is 

proposing approval of substantive and 

format changes to Virginia’s general 

administrative provisions and 

definitions, reorganization and 

recodification of the general conformity 

requirements and provisions, 

recodification of Virginia’s oxygenated 

gasoline regulation, and revisions to the 

list of technical documents which 

Virginia incorporates by reference into 

its air pollution control regulations. 

In the Final Rules section of this 

Federal Register, EPA is approving 

Virginia’s SIP submittal as a direct final 

rule without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A more detailed description 

of the state submittal and EPA’s 

evaluation are included in a Technical 

Support Document (TSD) prepared in 

support of this rulemaking action. A 

copy of the TSD is available, upon 

request, from the EPA Regional Office 

listed in the ADDRESSES section of this 

document. If no adverse comments are 

received in response to this action, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time.

DATES: Comments must be received in 

writing by February 6, 2003.

ADDRESSES: Written comments should 

be addressed to Harold A. Frankford, 

Mailcode 3AP20, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the documents relevant 

to this action are available for public 

inspection during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103; and 

the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford, (215) 814–2108, or 

by e-mail at frankford.harold@epa.gov.

Please note that while questions may be 

posed via telephone and e-mail, formal 

comments must be submitted in writing, 

as indicated in the ADDRESSES section of 

this document.

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, that is 

located in the ‘‘Rules and Regulations’’

section of this Federal Register

publication. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment.

Dated: December 17, 2002. 

Donald S. Welsh, 

Regional Administrator, Region III.

[FR Doc. 03–94 Filed 1–6–03; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Chapter 1 

[WT Docket No. 02–381; FCC 02–325] 

Facilitating the Provision of SpectrumBased Services to Rural Areas and 

Promoting Opportunities for Rural 

Telephone Companies to Provide 

Spectrum-Based Services

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule; notice of inquiry.

724 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

SUMMARY: This document seeks 

comment on the effectiveness of the 

Commission’s current regulatory tools 

in facilitating the delivery of spectrumbased services to rural areas. 

Specifically, we ask whether and how 

the Commission could modify its 

policies to promote the further 

development and deployment of such 

services to rural areas. In addition, we 

request comment on the extent to which 

rural telephone companies (‘‘rural 

telcos’’) and other entities seeking to 

serve rural areas have opportunities to 

acquire spectrum and provide spectrumbased services. This document fulfills a 

Commission commitment to develop a 

record on these matters to determine the 

extent to which the Commission has 

achieved these statutory goals.

DATES: Comments are due on or before 

February 3, 2003 and reply comments 

are due on or before February 18, 2003.

ADDRESSES: All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

Parties also should send four (4) paper 

copies of their filings to Robert Krinsky, 

Federal Communications Commission, 

Room 4–B551, 445 12th Street, SW., 

Washington, DC 20554. See 

‘‘Supplementary Information’’ for 

comment and reply comment filing 

instructions.

FOR FURTHER INFORMATION CONTACT:

Robert Krinsky at (202) 418–0660.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Notice of Inquiry

released on December 20, 2002. The 

complete text of the Notice of Inquiry is 

available for public inspection and 

copying during regular business hours 

at the FCC Reference Information 

Center, Portals II, 445 12th Street, SW., 

Room CY–A257, Washington, DC, 

20554. The Notice of Inquiry may also 

be purchased from the Commission’s 

duplicating contractor, Qualex 

International, Portals II, 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554, telephone (202) 863–2893, 

facsimile (202) 863–2898, or via e-mail 

qualexint@aol.com.

I. Introduction 

1. The Notice of Inquiry seeks 

comment on the effectiveness of our 

current regulatory tools in facilitating 

the delivery of spectrum-based services 

to rural areas. Specifically, we ask 

whether and how the Commission could 

modify its policies to promote the 

further development and deployment of 

such services to rural areas, pursuant to 

section 309(j) of the Communications 

Act of 1934, as amended 

(‘‘Communications Act’’). In addition, 

we request comment on the extent to 

which rural telephone companies 

(‘‘rural telcos’’) and other entities 

seeking to serve rural areas have 

opportunities to acquire spectrum and 

provide spectrum-based services, 

pursuant to sections 309(j)(3) and 

309(j)(4) of the Communications Act. 

The Notice of Inquiry fulfills a 

Commission commitment to develop a 

record on these matters to determine the 

extent to which the Commission has 

achieved these statutory goals. Based on 

the record developed in this proceeding, 

we will determine whether it would be 

appropriate to revise existing policies or 

adopt new policies to promote more 

extensive provision of spectrum-based 

services to rural areas and the 

acquisition of spectrum by rural telcos. 

While satellite services may, in the 

future, play a critical role in bringing 

telecommunications services to rural 

America, the Notice of Inquiry addresses 

issues related only to the provision of 

terrestrial wireless service to rural areas, 

not the provision of general 

telecommunications services to rural 

areas. 

II. Background 

2. The Omnibus Budget 

Reconciliation Act of 1993 added 

section 309(j) to the Communications 

Act, authorizing, but not requiring, the 

Commission to award licenses for use of 

the electromagnetic spectrum through 

competitive bidding where mutually 

exclusive applications are accepted for 

filing. In 1997, Congress expanded the 

Commission’s auction authority by 

requiring it to award mutually exclusive 

license applications for initial 

applications or construction permits by 

competitive bidding unless certain 

specific exemptions apply. Section 

309(j) requires the Commission to 

promote various objectives in designing 

a system of competitive bidding. A 

number of those objectives focus on the 

provision of spectrum-based services to 

rural areas, and three provisions 

mention providing the opportunity to 

rural telcos to acquire spectrum and 

provide spectrum-based services. For 

example, section 309(j)(3)(A) requires 

the Commission to encourage the 

development and rapid deployment of 

new technologies, products, and 

services for the benefit of the public, 

‘‘including those residing in rural 

areas.’’ Section 309(j)(3)(B) directs the 

Commission to disseminate spectrum 

licenses among a wide variety of 

applicants, including ‘‘rural telephone 

companies.’’ Section 309(j)(4)(D) 

requires the Commission to ensure that 

rural telcos are given the opportunity to 

acquire spectrum and provide spectrumbased services. In addition to the rural 

service objectives mandated by section 

309(j), Congress directed the 

Commission to pursue other broader 

public interest goals in designing a 

system of competitive bidding. 

Specifically, section 309(j)(3) requires 

the Commission to promote efficient 

and intensive use of the spectrum, 

encourage economic opportunity and 

competition, and recover for the public 

a portion of the value of the public 

spectrum. 

3. In an effort to fulfill the rural 

service objectives set forth in section 

309(j), the Commission has adopted a 

number of policies intended, among 

other things, to encourage the provision 

of spectrum-based services to rural areas 

and the participation of rural telcos in 

the competitive bidding for spectrum 

licenses. Specifically, these policies 

include: (i) The availability of small 

business bidding credits; (ii) the 

designation of various sizes of 

geographic service areas for spectrum 

licenses; (iii) the opportunity to obtain 

licenses through service area 

partitioning and spectrum 

disaggregation arrangements with 

existing licensees; and (iv) the adoption 

of construction benchmark performance 

requirements. In addition, apart from its 

obligation under section 309(j), the 

Commission has expressed support for 

the provision of telecommunications 

services to tribal lands. The Commission 

also established the Rural 

Radiotelephone Service, which may 

operate in the paired 152/158 and 454/

459 MHz bands, and Basic Exchange 

Telephone Radio Systems (‘‘BETRS’’), 

which may operate in those same bands 

as well as on 10 channel blocks in the 

816–820/861–865 MHz bands, primarily 

to facilitate the provision of basic 

telephone service to remote and 

sparsely populated areas where wireline 

service is not feasible. 

4. In 1994, the Commission adopted 

small business bidding credits to 

encourage broad participation in 

spectrum auctions. A bidding credit is 

a payment discount on a winning bid 

determined at the conclusion of the 

bidding process. Small business bidding 

credits are available to businesses —

including rural telcos — whose gross 

revenues do not exceed a specified 

threshold. These bidding credits are 

intended to encourage participation in 

the competitive bidding process by 

entities that otherwise might have 

difficulty gaining access to capital. 

Through the use of small business 

bidding credits, the Commission has 

sought to promote the participation of 

small businesses, rural telcos, and 

women- and minority-owned firms 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 725

(collectively referred to as ‘‘designated 

entities’’), thereby addressing Congress’s 

mandate to ensure diversity in the 

ownership of spectrum licenses. The 

Commission determines on a servicespecific basis whether bidding credits 

will be offered, the eligibility criteria for 

receiving a bidding credit, and the 

amount of the bidding credit. 

5. However, in the Part 1 Fifth Report 

and Order, 65 FR 52323 (August 29, 

2000), the Commission declined to 

adopt a bidding credit specifically for 

rural telcos. Rather, the Commission 

determined to continue to make small 

business bidding credits available to 

entities, including rural telcos that meet 

the requisite revenue criteria. In 2000, 

the Commission also began offering a 

tribal land bidding credit, the size of 

which is determined by the amount of 

tribal land area reached by the service 

provider. All telcos, including rural 

operators that fulfill the requisite 

criteria may obtain a tribal land bidding 

credit.

6. Recent statistics indicate that rural 

telcos have actively participated in 

spectrum auctions and have had some 

success in winning licenses. A 

significant portion of rural telcos that 

have participated in spectrum auctions 

have received small business bidding 

credits. For instance, an examination of 

the 29 auctions completed by the 

Commission as of September 18, 2002, 

that offered small business bidding 

credits, reveals that 84 percent of the 

qualified bidders that identified 

themselves as rural telcos and 79 

percent of all qualified bidders were 

eligible to receive a small business 

bidding credit. In the Commission’s 

most recent auction for licenses in the 

lower 700 MHz Band, 89 percent of 

qualified bidders that identified 

themselves as rural telcos won licenses. 

In addition, 77 percent of all winning 

rural telco bidders in that auction 

received a bidding credit. 

7. In addition to bidding credits, 

another way in which the Commission 

has sought to enhance rural telco 

participation in spectrum auctions is by 

adopting service areas of varying sizes. 

Although in many services we offer 

licenses that cover geographic areas of 

only one size, in a number of services, 

we license areas of varying sizes, 

ranging from small to large, in order to 

attract a diverse group of prospective 

bidders. Larger entities, for instance, 

may seek to acquire licenses that cover 

whole regions of the country, while 

other entities, such as rural telcos, may 

be interested in obtaining licenses to 

serve only particular rural areas. After 

seeking comment, the Commission has 

varied the size of the geographic service 

area depending upon the nature of the 

service provided and the likely users. In 

services for which we have adopted one 

size of license area, such areas are 

usually larger than Rural Service Areas 

(‘‘RSAs’’). In determining the 

appropriate size of a license area, we 

seek to balance two competing 

concerns. On one hand, we seek to 

adopt service areas of a size that results 

in efficient and intensive use of 

spectrum resources. On the other hand, 

we seek to adopt licensing areas that 

will permit the dissemination of 

licenses among a wide variety of 

applicants. The smallest of these 

geographic service areas are RSAs and 

Metropolitan Statistical Areas 

(‘‘MSAs’’), of which there are 734 

licenses comprising the United States 

and its territories. Adopting service 

rules that provide for licenses with 

small geographic areas allows bidders to 

target the precise areas they are 

interested in serving, rather than having 

to compete for expansive geographic 

areas that encompass smaller, soughtafter areas. The Commission has also 

licensed spectrum according to 

Economic Area Groupings (‘‘EAGs’’), 

which make up six licensing areas for 

the entire country. Some terrestrial 

wireless services, such as narrowband 

Personal Communications Services 

(‘‘PCS’’) and 1670–1675 MHz, have 

geographic service areas that have 

nationwide coverage. Other geographic 

service areas fall along a range of 

intermediate sizes between RSAs and 

nationwide service areas, e.g., BTAs, 

Economic Areas (‘‘EAs’’), and Major 

Economic Areas (‘‘MEAs’’). 

8. The Commission has also adopted 

partitioning and disaggregation policies 

to enable service providers, including 

rural telcos, to acquire spectrum 

without bidding on licenses that may 

not be suited to their particular needs. 

‘‘Partitioning’’ is the assignment by a 

licensee of geographic portions of the 

license. ‘‘Disaggregation’’ is the 

assignment by a licensee of discrete 

portions or ‘‘blocks’’ of spectrum of the 

license. Where permitted by our rules, 

licensees may partition or disaggregate 

any of their licensed spectrum to other 

entities. Obtaining spectrum through 

partitioning or disaggregation, rather 

than competitive bidding, is often 

appealing to service providers with 

limited financial resources, specific 

service area needs, or small bandwidth 

requirements because licenses offered at 

auction may be more costly, cover larger 

geographic areas, and have greater 

bandwidth than desired. For instance, 

the geographic service area of a license 

made available at auction may include 

both urban and rural areas. A rural telco 

interested in serving only a rural area 

may seek to obtain spectrum postauction through partitioning or 

disagregation, rather than bid for a 

license covering an area that it does not 

intend to serve. In this manner, our 

partitioning and disaggregation policies 

may help service providers, such as 

rural telcos, to obtain spectrum tailored 

to their specialized service area and 

financial needs. The Commission’s 

analysis of applications for geographic 

partition and spectrum disaggregation 

reveals that 13.5 percent of all assignees 

have voluntarily identified themselves 

as rural telcos. Our analysis also 

demonstrates that 13.8 percent of all 

assignees (including rural and non-rural 

telcos) claim they are, or will be, serving 

rural areas. 

9. The Commission has sought to 

enhance service to rural areas by 

requiring winning bidders of spectrum 

licensees to meet certain performance 

requirements. Section 309(j)(4)(B) of the 

Act specifically directs the Commission 

to prescribe such ‘‘performance 

requirements’’ to ensure prompt 

delivery of service to rural areas, to 

prevent stockpiling of spectrum, and to 

promote investment in and rapid 

deployment of new technologies and 

services. Performance requirements 

include construction benchmarks. 

Construction benchmarks typically 

require licensees to serve either a 

specific portion of the geographic 

service area or a specific percentage of 

the population in the geographic service 

area by a certain period of time. In some 

instances, the Commission has adopted 

a ‘‘substantial service’’ requirement as 

its construction requirement. Under this 

approach, licensees are required to 

provide ‘‘substantial service’’ to either a 

geographic service area or to the 

population within the geographic 

service area within a specific period of 

time. The Commission has defined 

‘‘substantial service’’ as ‘‘service that is 

sound, favorable, and substantially 

above a level of mediocre service that 

would barely warrant renewal.’’ The 

‘‘substantial service’’ requirement was 

established to assess meaningful service 

through a measure not based on 

population or geographic metrics. 

Substantial service was established for 

circumstances where the Commission 

has determined that more flexible 

construction requirements rather than 

fixed benchmarks would more likely 

result in the efficient use of spectrum 

and the provision of service to rural, 

remote, and insular areas. The 

Commission may consider such factors 

as whether a licensee’s operations serve 

726 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

niche markets or focus on serving 

populations outside of areas served by 

other licensees. The Commission has 

indicated that a ‘‘substantial service’’

construction requirement may help 

foster service to less densely populated 

areas. Because this requirement can be 

met in a variety of ways, the 

Commission has stated that it will 

review substantial service showings on 

a case-by-case basis. The Commission 

has rarely found that a commercial 

mobile radio service (‘‘CMRS’’) carrier 

has failed to meet its performance 

requirements. 

10. Another step the Commission has 

taken to encourage the provision of 

wireless services to rural areas is the 

retention, in RSAs, of the cellular crossinterest rule, which is designed to 

protect against the cellular incumbents 

developing cross interests that may 

create the incentive and ability to 

restrict the availability of services in 

those areas. The cellular cross-interest 

rule limits the ability of parties to have 

attributable interests in cellular carriers 

on different channel blocks in a single 

geographic area. In its recent 

reevaluation of this rule, the 

Commission determined that the crossinterest rule was no longer necessary in 

MSAs because the cellular duopoly 

conditions that prompted the rule’s 

adoption no longer existed. However, 

the Commission found that in RSAs 

competition to the incumbent cellular 

licensees was not as developed as in 

MSAs. Accordingly, the Commission 

concluded that a combination of 

interests in cellular licensees serving 

RSAs would more likely result in a 

significant reduction in competition in 

these areas. The Commission therefore 

decided to retain the cellular crossinterest rule in RSAs, subject to waiver 

of the rule based on certain conditions. 

The Commission noted that retention of 

the cross-interest rule in RSAs does not 

preclude cellular carriers from obtaining 

PCS licenses in order to expand 

capacity or offer advanced services. 

III. Request for Comment

11. Under section 309(j), the 

Commission has a statutory mandate to 

promote the development and 

deployment of wireless technologies to 

rural areas and economic opportunities 

for rural telcos and other entities 

seeking to serve rural areas. Indeed, as 

discussed, the Commission has 

implemented a number of initiatives 

toward achieving those goals. We seek 

to better understand the nature of 

spectrum supply and demand and the 

services currently provided and planned 

to be offered in rural areas. We are also 

interested in developing a record on 

whether there are any discrepancies 

between rural and urban America in the 

availability, use and cost of wireless 

services. Approximately 80 percent of 

the U.S. population lives in 

metropolitan areas. However, our 

society is increasingly mobile and, 

therefore, ubiquitous wireless service is 

essential, not only for those living in 

rural areas, but also for individuals 

whose business and leisure activities 

take them to all parts of the nation. 

Thus, it is in the larger public interest 

to promote seamless wireless service 

throughout the country. By the Notice of 

Inquiry, we seek to broaden our 

understanding of the effect our current 

policies have had on the availability of 

spectrum-based services in rural 

America and on access to spectrum 

licenses by rural telcos and other 

entities seeking to serve rural areas. 

Further, we are interested in exploring 

whether it is appropriate to adopt new 

approaches in these areas. We therefore 

seek comment on the effectiveness of 

our current regulatory tools in 

facilitating the delivery of spectrumbased services to areas that traditionally 

may have been underserved by 

telecommunications providers and on 

our efforts to provide rural telcos with 

the opportunity to participate in 

spectrum auctions. We also invite 

comment on ways in which the 

Commission could modify its policies to 

best fulfill these statutory goals. 

12. At the outset, we request comment 

on the types of wireless services that are 

currently provided, and that are 

planned to be offered, in rural areas. We 

seek information on the availability of 

wireless services in rural areas and the 

providers of such services. We ask 

commenters to identify which service 

providers, in addition to rural telcos, are 

providing wireless services to rural 

populations. To the extent possible, we 

request that commenters provide 

particularized data on wireless coverage 

and provision of services to rural areas. 

The more specific data we receive, the 

better able we will be to tailor our 

regulations to meet our rural service 

goals. We particularly seek comment 

from consumer groups, community 

groups, State Commissions, local 

governments and others about any 

geographic areas that lack adequate 

wireless coverage, have inadequate 

quality of service, or inequitable pricing. 

We also ask commenters to identify the 

obstacles to providing wireless service 

in rural areas. In particular, we ask 

commenters to address the economic 

viability of building out in rural areas. 

In what ways, if any, can the 

Commission modify its rules to promote 

build-out to rural regions? We also seek 

comment on whether we should 

maintain a Web site that would include 

information that would be helpful to 

entities seeking to provide wireless 

services to rural areas. Such a Web site, 

for instance, could have links to other 

sites that contain information about 

programs and financial incentives that 

are available to those seeking to serve 

rural populations. Should we maintain 

a database that would provide 

information to prospective service 

providers, including rural carriers, on 

the availability of spectrum for initial 

licensing or leasing? In addition to the 

specific issues identified in the Notice 

of Inquiry, we also invite comment on 

any other issues within the 

Commission’s jurisdiction that may 

directly relate to the provision of 

wireless service in rural areas. 

13. Apart from the rural service 

mandate set forth in section 309(j), 

Congress also directed the Commission 

to pursue other public interest 

objectives in designing a system of 

competitive bidding, including the 

efficient and intensive use of the 

spectrum, the development and rapid 

deployment of new technologies and 

services, the promotion of competition, 

and the recovery for the public of a 

portion of the value of the spectrum. In 

providing comment on how the 

Commission may best fulfill the rural 

objectives, we ask that commenters also 

address how any proposed suggestions 

would further, or impede, the 

Commission’s achievement of the other 

public interest goals set forth in section 

309(j)(3). 

14. Finally, we recognize that issues 

involving spectrum leasing 

opportunities are of significant interest 

to rural telcos. They have expressed 

interest in gaining access to spectrum 

usage rights through secondary markets. 

We plan to address these matters in our 

proceeding on secondary markets. 

15. In addition, we note that rural 

interests have raised issues related to 

the controlling interest standard that the 

Commission adopted in the Part 1 Fifth 

Report and Order. In essence, they argue 

that application of this rule will 

inappropriately disqualify rural telco 

cooperative applicants from attaining 

small business bidding status and will 

frustrate the objectives of the 

Commission’s small business bidding 

preference program and the mandates of 

section 309(j). Because we will respond 

to petitions for reconsideration of the 

Part 1 Fifth Report and Order in a 

subsequent order, as part of the Part 1 

rulemaking proceeding, we do not seek 

comment on, and will not address these 

matters in the Notice of Inquiry.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 727

A. Definition of ‘‘Rural Areas’’

16. As discussed, sections 309(j)(3) 

and 309(j)(4) direct the Commission to 

promote the development and 

deployment of spectrum-based services 

to ‘‘rural areas.’’ The statute, however, 

does not provide a definition of what 

constitutes a ‘‘rural area.’’ The federal 

government has multiple ways of 

defining ‘‘rural,’’ reflecting the multiple 

purposes for which the definitions are 

used. The Commission has used RSAs 

to define ‘‘rural’’ in certain instances. In 

the Seventh Report, 17 FCC Rcd 12985 

(2002), the Commission used three 

different proxy definitions of ‘‘rural’’ for 

purposes of analyzing the average 

number of competitors in rural versus 

non-rural counties. We compared the 

number of competitors in (i) RSA 

counties versus MSA counties, (ii) nonnodal EA counties versus nodal EA 

counties, and (iii) counties with 

population densities below 100 persons 

per square mile versus those with 

population densities above 100 persons 

per square mile. We request comment 

on whether and how the Commission 

should define ‘‘rural area’’ for purposes 

of determining the extent to which the 

Commission has met its mandate under 

section 309(j). In addition, we seek 

comment on whether we should adopt 

different definitions of what constitutes 

a ‘‘rural area’’ depending upon the 

regulatory initiative for which the 

definition is used. Commenters should 

identify the factors that the Commission 

should consider when defining ‘‘rural 

area.’’ In addition, we are interested in 

compiling a comprehensive list of the 

number of telephone companies that 

meet the definition of ‘‘rural telephone 

company’’ as defined in 47 U.S.C. 

153(37). The identical definition is also 

included in 47 CFR 1.2110(c)(4) and 

51.5. We ask that commenters provide 

data to assist us in this effort. 

B. Bidding Credits 

17. As explained, bidding credits are 

intended to foster broad participation in 

the competitive bidding process for 

licenses. A bidding credit reduces the 

amount of the winning bid paid for a 

license by a qualifying entity. The 

Commission requests comment on 

whether, and the extent to which, small 

business bidding credits have facilitated 

the participation of rural telcos in 

competitive bidding and the delivery of 

spectrum-based services to rural areas. 

Our research demonstrates that rural 

telcos often qualify as small businesses 

and are therefore eligible to receive 

small business bidding credits. Is the 

availability of small business bidding 

credits effective in assisting rural telcos 

to gain access to spectrum? Is the 

availability of such credits helpful in 

promoting the provision of spectrumbased services to rural areas? 

Commenters should support their 

responses to these questions with data 

or other empirical information. For 

instance, if commenters contend that 

small business bidding credits are not 

helpful in promoting rural telco 

participation in Commission auctions, 

commenters should provide data or 

statistics supporting that assertion. If 

empirical evidence demonstrates that 

small business bidding credits are not 

effective in facilitating the provision of 

wireless services to rural areas or the 

participation of rural telcos in 

competitive bidding, should the 

Commission adopt a bidding credit 

specifically for rural telcos or based on 

the provision of service to rural areas? 

For instance, should the Commission 

adopt a rural service bidding credit 

modeled after the tribal lands bidding 

credit? In responding to these questions, 

commenters should discuss why the use 

of small business bidding credits is or 

is not effective in creating opportunities 

for rural telcos or in spurring the 

provision of services to rural areas. 

18. If the Commission were to adopt 

a bidding credit specifically for rural 

telcos, what criteria should it use to 

determine eligibility for the credit (if it 

is not based on financial size) and what 

should be the size of the credit? Is it 

appropriate, for instance, to adopt a 

bidding credit for all rural telcos 

irrespective of how large or wellfinanced these entities may be? When 

initially considering the adoption of a 

rural telco bidding credit in 1994, the 

Commission found that rural telcos do 

not per se have the same difficulty 

accessing capital as other groups, such 

as small businesses. The Commission 

stated that the parties advocating the 

adoption of a rural telco credit had 

‘‘failed to demonstrate a historical lack 

of access to capital that was the basis for 

according bidding credits to small 

businesses, minorities and women.’’ In 

subsequent decisions, the Commission 

has reiterated that large rural telcos do 

not appear to have barriers to capital 

formation similar to those faced by other 

designated entities. In commenting on 

this issue, parties that advocate the 

adoption of a bidding credit specifically 

for rural telcos should address whether 

we should consider access to capital as 

a factor in determining whether to adopt 

such a bidding credit. We note that rural 

telcos may seek below-market rate 

lending through the Department of 

Agriculture’s Rural Utilities Service 

(‘‘RUS’’). In addition, section 6103 of 

the recently-enacted Farm Security and 

Rural Investment Act of 2002 provides 

loans and loan guarantees to construct, 

improve, and acquire facilities and 

equipment to provide broadband service 

to rural communities with 20,000 or 

fewer residents. These financing options 

suggest that rural telcos may have 

greater ability than other designated 

entities to attract capital. We seek 

comment on what role these programs 

should play, if any, in our consideration 

of adopting an independent rural telco 

bidding credit.

C. Geographic Service Areas 

19. The sizes of geographic service 

areas vary on a service-by-service basis 

depending upon such factors as the 

nature of the service and the likely 

users. We seek comment on the extent 

to which the size of the geographic 

service area affects the ability of rural 

telcos to acquire spectrum licenses 

through competitive bidding. In 

addition, commenters should discuss 

whether, and in what ways, the size of 

the geographic service area affects the 

provision of wireless services to rural 

areas. Commenters should provide data 

to support their positions. 

20. Does the size of the geographic 

service area affect the provision of 

wireless services to rural areas by 

entities other than rural telcos? Large 

license areas, for instance, may enable 

nationwide carriers to compete with 

local or regional carriers in providing 

service to rural areas. Such large areas 

may also provide opportunities for new 

entrants to compete on a wide-area basis 

in an existing service. With regard to 

commercial mobile telephony 

specifically, there is considerable 

industry support for the notion that 

relatively large licenses are most 

efficient. The original geographic scope 

of cellular, broadband PCS, and certain 

SMR licenses was small and, as a result, 

the licenses were assigned to a large 

number of entities. The predominant 

trend since then, however, has been for 

operators progressively to aggregate 

licenses and build large geographic 

footprints. The Commission has found 

that these footprint-expanding transfers 

and assignments result in important 

public benefits. Today, six providers 

approach nationwide status. However, 

less than 50 percent of the geographic 

area of the country is served by three or 

more carriers. Given this evidence, are 

small license areas inefficient for 

licenses of spectrum suitable for 

provision of mobile voice and data 

service? And for such licenses, do the 

interests of consumers of rural service 

diverge from the interests of rural telcos 

that wish to supply such service? 

728 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

Alternatively, does the use of small 

geographic licensing areas stimulate 

competition in the provision of wireless 

services to rural populations? Does the 

adoption of smaller service areas enable 

rural telcos to compete more effectively 

in spectrum auctions? If rural telcos win 

licenses covering small geographic 

service areas, are they more likely to 

provide services to those areas than are 

other service providers? Is there 

evidence that smaller geographic areas 

will result in more rapid deployment of 

services? Are rural carriers better 

positioned to serve the needs of rural 

America than nationwide carriers? 

Reliance on nationwide licenses 

assumes that nationwide carriers and 

local carriers are equally well 

positioned to serve rural consumer 

needs. Is this correct? On the other 

hand, are rural populations better 

served by carriers that operate on a 

nationwide basis as opposed to local 

carriers? For example, are nationwide 

carriers better able to offer lower prices, 

better roaming capability, or more 

services due to economies of scale? If 

the adoption of smaller service areas for 

licenses does enhance the participation 

and success of rural telcos in 

competitive bidding and/or the 

provision of services to rural areas, 

should the Commission adopt variedsized or small-sized geographic service 

areas for all auctionable services? Are 

there particular services that are more 

appropriate for licensing by smaller 

geographic areas? If smaller geographic 

service areas promote competition, 

service, and access to spectrum by rural 

telcos, what size service areas would be 

most effective to achieve these benefits? 

In addition, we seek comment on 

whether certain auction designs, such as 

combinatorial or ‘‘package’’ bidding, 

facilitate license configurations that are 

efficient and likely to foster the 

provision of wireless services to rural 

areas. 

D. Partitioning and Disaggregation 

21. Partitioning and disaggregation 

policies and regulations are designed to 

facilitate more efficient and intensive 

use of the spectrum, including use by 

rural telcos to serve rural areas. In 

paragraph eight, we provide statistics 

regarding partition and disaggregation 

assignees that have identified 

themselves as rural telcos, and assignees 

that claim that they are or will be 

serving rural areas. However, because 

we do not require applicants to identify 

themselves as rural telcos when 

applying for licenses, we cannot with 

certainty determine the extent of 

transactions involving rural telcos based 

solely on our licensing records. 

Therefore, we seek comment on the 

extent to which rural telcos have 

received licenses through geographic 

partitioning and spectrum 

disaggregation. We are interested in 

learning whether, and in what ways, 

partitioning and disaggregation policies 

have been helpful in providing rural 

telcos with access to spectrum. We also 

ask for comment on whether, and to 

what extent, partitioning and 

disaggregation rules have enhanced the 

provision of services to rural areas. In 

responding to these questions, 

commenters should provide data or 

other empirical information to support 

their positions. We also solicit comment 

on whether partitioning and 

disaggregation policies enhance 

competition in the provision of wireless 

services to rural areas. If partitioning 

and disaggregation facilitate the 

provision of services to rural areas, do 

sufficient incentives exist for both 

winning bidders and prospective 

licensees to participate in the spectrum 

partitioning and disaggregation process? 

For instance, to what extent do the 

potential transaction costs involved in 

partitioning and disaggregation 

discourage licensees from pursuing such 

options? We note that some rural 

interests maintain that such transaction 

costs and other factors lead licensees to 

avoid pursuing partitioning and 

disaggregation agreements. If sufficient 

incentives do not exist to encourage 

partitioning of service areas and 

disaggregation of spectrum, should the 

Commission adopt additional incentives 

to motivate parties to pursue these 

options? For example, should the 

Commission require that licensees 

disaggregate or partition under certain 

circumstances, such as when there is 

unused spectrum or unserved portions 

of geographic service areas? 

E. Performance Requirements 

22. Performance requirements, such 

as construction benchmarks, are 

intended to help ensure that licensees 

promptly provide service to potential 

subscribers. The type of construction 

benchmark the Commission adopts for a 

license may determine whether services 

are deployed expeditiously to rural 

areas. For instance, depending on the 

level at which it is set, a populationbased requirement may be achievable by 

a licensee providing service only to the 

urban areas covered by its license. In 

contrast, a geography-based benchmark 

targets the delivery of services to a 

percentage of a geographic area, rather 

than to a percentage of the population 

in an area. Because population is only 

rarely distributed uniformly across a 

geographic area, the same percentage 

requirement under a geography-based 

standard may result in greater 

geographic area and population 

coverage than that percentage under a 

population-based requirement. 

23. We seek comment on whether and 

how construction benchmarks may be 

utilized to encourage licensees to 

deliver wireless services to rural 

populations. To what extent are our 

current construction benchmarks 

effective in ensuring that spectrumbased services are provided to rural 

areas? In what instances, and under 

what circumstances, should the 

Commission adopt a population-based, 

geography-based, or substantial service 

construction benchmark? For example, 

in licensing service areas that are 

predominantly rural, should the 

Commission adopt geography-based 

construction benchmarks? Are there 

other types of construction benchmarks 

that would better promote service to 

rural regions? For instance, should we 

adopt a separate construction 

benchmark applicable only to service 

areas that constitute rural areas? 

Alternatively, should we revise our 

current construction benchmarks to 

permit service providers to serve either 

smaller portions of the population or 

service area if they meet a second 

construction benchmark applicable to 

the rural portions of a licensee’s market? 

If so, commenters should explain what 

construction benchmarks we should 

adopt for the rural portions of the 

service area? If, as suggested, we were 

to require licensees to disaggregate or 

partition unused spectrum or unserved 

portions of geographic service areas, 

should the Commission adopt 

additional construction benchmarks to 

implement this requirement? If so, what 

penalties should the Commission 

impose on licensees for failure to timely 

meet such additional construction 

benchmarks? As noted, the Commission 

has generally accepted certifications of 

CMRS carriers that they have met their 

construction benchmarks. To what 

extent are our self-certification 

procedures an adequate means of 

ensuring compliance with our 

construction benchmark requirements?

24. In addition to employing varying 

types of construction benchmarks for 

auctioned licenses, the Commission has 

also utilized different models with 

respect to enforcing construction 

requirements. In the Cellular 

Radiotelephone Service, initial licensees 

are given five years to construct 

facilities and begin providing service to 

their market. At the end of the initial 

five-year period the licensee is allowed 

to ‘‘keep what it builds’’ and the 

remaining portions of the market 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 729

become available for licensing to other 

parties via the cellular ‘‘unserved area’’

licensing process. In contrast, auctioned 

services such as broadband PCS provide 

for an ‘‘all or nothing’’ penalty for 

failing to meet the construction 

benchmarks, i.e., if a licensee does not 

meet the five- or ten-year benchmark or 

make a showing of substantial service 

(where applicable) it forfeits the entire 

license and does not get to ‘‘keep what 

it builds.’’ With this past experience in 

mind, we seek comment on whether 

these models, a hybrid model, or some 

combination of targeted models, may be 

utilized to facilitate service in rural 

areas. We also seek comment on 

whether the Commission should adopt 

performance requirements other than 

construction benchmarks to encourage 

the provision of wireless services to 

rural areas. 

25. For unserved areas in the Cellular 

Radiotelephone Service, should the 

Commission adopt a different approach 

to assigning spectrum usage rights? 

Specifically, should the Commission 

adopt a ‘‘commons’’ model, which 

allows unlimited numbers of unlicensed 

users to share frequencies, with usage 

rights that are governed by technical 

standards but with no right to protection 

from interference? In addition, should 

the Commission amend the application 

filing process for cellular unserved areas 

to further encourage service providers to 

operate in rural areas? Furthermore, 

should the Commission apply the policy 

it has adopted with respect to unserved 

areas in the Cellular Radiotelephone 

Service to other services to promote 

wireless service in rural areas, i.e., allow 

licensees to continue to serve the areas 

they have built-out, but make available 

for licensing to other parties those 

portions of a market that are not being 

served by current licensees? With 

respect to our ownership rules for the 

Cellular Radiotelephone Service, we 

seek comment on whether and to what 

extent our retention of the cellular 

cross-interest rule for RSAs advances 

spectrum-based services to rural areas. 

Should the Commission amend this rule 

to further the provision of wireless 

services to rural areas? 

26. Finally, it may be economically 

inefficient, and thus harmful to 

customers, to require for each wireless 

service the same number of competitors 

in urban and rural areas. This appears 

to be true, for example, with regard to 

mobile telephony. How should a 

performance requirement policy for 

rural areas address this issue? Economic 

theory predicts that where licensees are 

in competitive markets, and no market 

failures exist and transactions costs are 

sufficiently low, market forces will 

drive optimal decisions on what is built, 

where, and when. In that setting, buildout rules arguably would distort 

resource allocation, or at best be 

irrelevant. We ask parties to comment 

on the application of this economic 

theory to construction benchmarks that 

cover rural areas. In particular, for those 

services and rural markets where there 

is competition, how should we balance 

the putative efficiency harm of build-out 

rules against the potential equity 

benefit? Moreover, for those services 

and rural markets where there is a lack 

of competition, e.g., as a result of small 

market size not being able to support 

multiple operators, is it possible that 

build-out rules would impose efficiency 

costs in the form of spending on excess 

capacity? 

F. Band Manager Licensing 

27. A band manager is a licensee that 

is specifically authorized to lease its 

licensed spectrum usage rights for use 

by third parties through private 

contractual agreements without having 

to seek prior Commission approval. 

Band managers may make their licensed 

spectrum available to facilitate all types 

of spectrum use that are consistent with 

the technical restrictions adopted for the 

particular band and in accordance with 

certain requirements imposed on the 

leasing relationship. The Commission 

has adopted band manager licensing for 

several bands. The band manager may 

subdivide its spectrum in any manner it 

chooses and make it available to any 

third party, consistent with the 

frequency coordination and interference 

rules specified for the particular band. 

Band managers are permitted to 

apportion spectrum based on both 

geographic area and frequency. Such 

spectrum apportionment differs from 

traditional geographic partitioning and 

spectrum disaggregation because it does 

not involve the transfer or assignment of 

the band manager’s licenses to other 

parties. Band manager licensing is an 

innovative spectrum management 

approach that can enable parties to 

acquire spectrum more readily for 

varied uses. The band manager option 

will also enable small businesses to 

acquire spectrum in amounts to serve 

particular geographic areas, and for 

periods of time, that better suit their 

unique characteristics and specialized 

communications needs. We seek 

comment on whether rural telcos would 

be able to obtain more affordable access 

to spectrum through a band manager 

than by acquiring licenses directly at 

auction or through partitioning and 

disaggregation. We also seek comment 

on whether rural telcos would be more 

likely to obtain access to spectrum that 

is tailored to their particular needs from 

a band manager than by acquiring 

licenses in an auction or through 

partitioning and disaggregation. 

Comments should also discuss whether 

band manager licensing would promote 

service or enhance the quality of service 

to rural areas. 

G. Technical and Operational Rules 

28. The Commission has developed 

technical and operational rules 

throughout its spectrum-based services 

in order to facilitate efficient use of the 

radio spectrum while minimizing the 

potential for harmful interference 

among licensees. We seek comment on 

the degree of flexibility that these 

regulations afford to providers of 

spectrum-based services in rural areas. 

Are there aspects of these rules that 

could be modified or made more 

flexible to encourage expanded service 

to rural areas while ensuring that 

services remain free of harmful 

interference? For example, would 

increasing permissible power levels be 

beneficial for particular types of services 

in areas where there is less spectrum 

congestion? Commenters should explain 

how their proposed changes would 

satisfy the goal of expanded rural 

service while not increasing the 

likelihood of harmful interference to 

existing licensees.

29. With respect to the Rural 

Radiotelephone Service, which includes 

BETRS, we note that as of November 

2002, there were 67 active BETRS 

licenses with facilities in 17 states and 

580 active Rural Radiotelephone 

licenses with facilities relatively 

uniformly spread throughout the 

continental United States. Of these, only 

one BETRS and two Rural 

Radiotelephone licenses were issued 

within the last two years. We seek 

comment on how we might revise the 

rules for these services to further 

facilitate the provision of wireless 

service to rural areas. 

H. Unlicensed Spectrum 

30. We also seek comment on the 

extent to which unlicensed spectrum is 

being used to provide wireless services 

to rural communities. We ask 

commenters to identify the service 

providers that are utilizing unlicensed 

spectrum and the types of services they 

are offering. Further, we seek comment 

regarding actions the Commission could 

take to encourage or facilitate the use of 

unlicensed spectrum. For example, 

unlicensed operation is generally 

limited to very low power levels in 

order to help ensure that the operation 

does not interfere with licensed 

services. However, the interference 

730 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

potential of unlicensed devices may be 

low or negligible in rural communities. 

Should unlicensed devices be permitted 

to use higher output power levels in 

such environments? If so, what criteria 

would have to be met in order to qualify 

to use the higher power levels? 

I. Eligible Telecommunications Carriers 

31. The Commission’s rules 

concerning universal service support for 

eligible telecommunications carriers 

(‘‘ETCs’’) may impact deployment of 

wireless services to rural areas. Under 

the Communications Act, only carriers 

designated as ETCs under section 214(e) 

may receive federal universal service 

support. Under the Commission’s rules, 

wireless carriers may be designated as 

ETCs and may receive universal service 

support for providing service to 

consumers that use wireless service as 

their only phone service as well as to 

consumers that also maintain wireline 

service. The Commission recently asked 

the Federal-State Joint Board on 

Universal Service (Joint Board) to 

review the ETC rules and provide 

recommendations regarding if and how 

these rules should be modified. We 

anticipate that the Joint Board will 

develop information on the impact of 

the Commission’s ETC rules on 

deployment of wireless services to rural 

areas. In this docket, we seek comment 

generally on whether the Commission’s 

ETC rules have promoted deployment of 

wireless service to rural areas and 

greater subscribership in these areas. We 

also seek to gather factual information. 

Specifically, we direct the Universal 

Service Administrative Corporation to 

provide us with information on the 

number of wireless carriers currently 

designated as ETCs, the amount of 

federal universal service support they 

have received, and the number of lines 

they serve. We ask that commenters 

provide any information available on 

how many of the customers served by 

wireless carrier ETCs also maintain 

wireline phones. How many customers 

had no phone service whatsoever until 

they purchased wireless service? 

IV. Procedural Issues 

A. Ex Parte Presentations 

32. This is an exempt proceeding in 

which ex parte presentations are 

permitted (except during the Sunshine 

Agenda period) and need not be 

disclosed. 

B. Filing of Comments and Reply 

Comments 

33. We invite comment on the issues 

and questions set forth. Pursuant to 

§§ 1.415 and 1.419 of the Commission’s 

rules, 47 CFR 1.415, 1.419, interested 

parties may file comments on or before 

February 3, 2003, and reply comments 

on or before February 18, 2003. 

Comments may be filed using the 

Commission’s Electronic Comment 

Filing System (ECFS) or by filing paper 

copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (May 1, 1998). Commenters 

that wish confidential treatment of their 

submissions should request that their 

submission, or specific part thereof, be 

withheld from public inspection. 

34. Comments filed through the ECFS 

can be sent as an electronic file via the 

Internet to <http://www.fcc.gov/e-file/

ecfs.html>. Generally, only one copy of 

an electronic submission must be filed. 

If multiple docket or rulemaking 

numbers appear in the caption of this 

proceeding, however, commenters must 

transmit one electronic copy of the 

comments to each docket or rulemaking 

number referenced in the caption. In 

completing the transmittal screen, 

commenters should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing instructions 

for e-mail comments, commenters 

should send an email to ecfs@fcc.gov,

and should include the following words 

in the body of the message, ‘‘get form.’’

A sample form and directions will be 

sent in reply. Parties who choose to file 

by paper must file an original and four 

copies of each filing. If more than one 

docket or rulemaking number appears in 

the caption of this proceeding, 

commenters must submit two additional 

copies for each additional docket or 

rulemaking number. Filings can be sent 

by hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail (although we continue to 

experience delays in receiving U.S. 

Postal Service mail). The Commission’s 

contractor, Vistronix, Inc., will receive 

hand-delivered or messenger-delivered 

paper filings for the Commission’s 

Secretary at 236 Massachusetts Avenue, 

NE., Suite 110, Washington, DC 20002. 

The filing hours at this location are 8 

a.m. to 7 p.m. All hand deliveries must 

be held together with rubber bands or 

fasteners. Any envelopes must be 

disposed of before entering the building. 

Commercial overnight mail (other than 

U.S. Postal Service Express Mail and 

Priority Mail) must be sent to 9300 East 

Hampton Drive, Capitol Heights, MD 

20743. U.S. Postal Service first-class 

mail, Express Mail, and Priority Mail 

should be addressed to 445 12th Street, 

SW., Washington, DC 20554. All filings 

must be addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

Parties also should send four (4) paper 

copies of their filings to Robert Krinsky, 

Federal Communications Commission, 

Room 4–B551, 445 12th Street, SW., 

Washington, DC 20554. 

V. Ordering Clauses 

35. Accordingly, it is ordered that, 

pursuant to the authority contained in 

47 U.S.C. 151, 4(i), and 303(r) the Notice 

of Inquiry is adopted.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

[FR Doc. 03–219 Filed 1–6–03; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Chapter 1

[WT Docket No. 02–379; FCC 02–327] 

Annual Report and Analysis of 

Competitive Market Conditions With 

Respect to Commercial Mobile 

Services

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule; notice of inquiry.

SUMMARY: This document solicits data 

and information on the status of 

competition in the CMRS industry for 

our Eighth Annual Report and Analysis 

of Competitive Market Conditions with 

Respect to Commercial Mobile Services 

(‘‘Eighth Report’’). The Eighth Report 

will provide an assessment of the 

current state of competition and changes 

in the CMRS competitive environment.

DATES: Comments are due on or before 

January 27, 2003 and reply comments 

are due on or before February 11, 2003.

ADDRESSES: All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

Parties also should send four (4) paper 

copies of their filings to Chelsea Fallon, 

Federal Communications Commission, 

Room 4–A335, 445 12th Street, SW., 

Washington, DC 20554. See 

‘‘Supplementary Information’’ for 

comment and reply comment filing 

instructions.

FOR FURTHER INFORMATION CONTACT:

Chelsea Fallon at (202) 418–7991.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Notice of Inquiry

released on December 13, 2002. The 

complete text of the Notice of Inquiry is 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 731

available for public inspection and 

copying during regular business hours 

at the FCC Reference Information 

Center, Portals II, 445 12th Street, SW., 

Room CY–A257, Washington, DC, 

20554. The Notice of Inquiry may also 

be purchased from the Commission’s 

duplicating contractor, Qualex 

International, Portals II, 445 12th Street, 

SW., Room CY–B402, Washington, DC, 

20554, telephone 202–863–2893, 

facsimile 202–863–2898, or via e-mail 

qualexint@aol.com.

Introduction 

1. In 1993, Congress created the 

statutory classification of Commercial 

Mobile Services to promote the 

consistent regulation of similar mobile 

radio services. At the same time, 

Congress established the promotion of 

competition as a fundamental goal for 

CMRS policy formation and regulation. 

To measure progress toward this goal, 

Congress required the Federal 

Communications Commission 

(‘‘Commission’’ or ‘‘FCC’’) to submit 

annual reports that analyze competitive 

conditions in the industry. The Notice 

of Inquiry solicits data and information 

on the status of competition in the 

CMRS industry for our Eighth Annual 

Report and Analysis of Competitive 

Market Conditions with Respect to 

Commercial Mobile Services (‘‘Eighth 

Report’’). The Eighth Report will 

provide an assessment of the current 

state of competition and changes in the 

competitive environment since the 

release of the Seventh Report, 17 FCC 

Rcd 12985 (2002). 

2. The Notice of Inquiry is part of the 

Commission’s ongoing effort to improve 

its CMRS Reports. In February 2002, the 

Commission held a Public Forum to 

examine ways in which to better gather 

and analyze data for the Seventh Report, 

in particular data regarding the 

development of CMRS services in rural 

and underserved areas. As a result of the 

forum, the Commission was able to 

integrate new data into the Seventh 

Report and adopted a number of 

suggestions made by forum participants 

on how to obtain and analyze data more 

effectively. 

3. Commercial mobile telephone and 

mobile data services are provided by a 

large number of terrestrial CMRS 

operators as well as mobile satellite 

operators. In an effort to provide the 

most complete picture of competition to 

Congress, the CMRS Reports analyze 

CMRS services from a consumer point 

of view. Therefore, some portions of our 

analysis include offerings outside the 

umbrella of ‘‘services’’ specifically 

designated as CMRS by the 

Commission. Because providers of these 

services may, on some level, compete 

with CMRS providers, the Commission 

believes it is important to consider them 

in its analysis and collects information 

on specific product categories regardless 

of their regulatory classification. 

4. In the Notice of Inquiry, we seek 

information that can be used to examine 

the status of competition in the CMRS 

industry. We note in our ongoing 

process of improving our data gathering 

process that we have taken the step of 

issuing the Notice of Inquiry in an effort 

to gather more detailed, comprehensive, 

and independent data for this year’s 

report. We request data that will allow 

us to evaluate the extent to which 

consumers can choose among CMRS 

operators, services, and technologies. In 

particular, we seek the following data 

and ask commenters to address the 

following general questions: 

• What is the current structure of the 

CMRS industry? 

• Which entities compete to provide 

CMRS services? 

• What have been the most significant 

changes or developments in the 

industry over the past year? 

• What is the extent of deployment of 

CMRS services? 

• What is the state of competition in 

the provision of CMRS services? 

• How does competition in the CMRS 

marketplace vary across the United 

States, in particular between rural and 

urban areas? 

• What metrics are available that will 

give us insight into the level of 

competition in the provision of CMRS 

services? We are interested in, but not 

limiting commenters to, information on 

service availability, the number of 

subscribers, penetration rates, usage, 

average revenue per subscriber, churn, 

quality of service, pricing data and 

trends, and profits. 

• To what extent do key metrics, such 

subscribership and usage levels, vary 

among different demographic groups? 

• How does CMRS providers’ cost of 

capital affect service availability, 

including entry into new geographic 

markets, the quality of service, and the 

introduction of new services? How is 

the cost of capital related to the level of 

competition in the provision of CMRS 

services? Is it possible to track the cost 

of capital that different CMRS providers 

have faced and will continue to face 

over time? 

• How does competition in the CMRS 

industry in the United States compare to 

that in other countries? How do key 

CMRS industry performance metrics, 

such as subscribership, usage, pricing, 

quality of service, and service 

availability, vary between the United 

States and other countries? 

5. Industry members, interested 

parties, and members of the public 

should submit information, comments, 

and analyses regarding competition in 

the provision of CMRS services. 

Commenters that wish confidential 

treatment of their submissions should 

request that their submission, or a 

specific part thereof, be withheld from 

public inspection. In order to facilitate 

our analysis of competitive trends over 

time, we request that parties submit 

current data as well as data that are 

comparable over time. In addition to the 

comments submitted in this proceeding, 

the Eighth Report will also include 

information from publicly-available and 

FCC sources. 

II. Matters on Which Comment Is 

Requested 

A. Competition in the Mobile Telephone 

Sector 

i. Introduction 

6. For purposes of the CMRS Reports, 

the mobile telephone sector is defined 

to include all operators that offer 

commercially available, interconnected 

mobile voice services. These operators 

provide access to the public switched 

telephone network (‘‘PSTN’’) via mobile 

communication devices employing 

radiowave technology to transmit calls. 

The mobile telephone sector is 

dominated by providers using cellular 

radiotelephone, broadband Personal 

Communications Service (‘‘broadband 

PCS’’), and Specialized Mobile Radio 

(‘‘SMR’’) licenses. Because these 

licensees offer mobile telephone 

services that are essentially 

interchangeable from the perspective of 

most consumers, they have been 

discussed in the CMRS Reports and are 

discussed in the Notice of Inquiry as a 

cohesive industry sector.

7. For purposes of the Eighth Report, 

we seek information on significant 

trends and developments that have 

occurred in the mobile telephone sector 

since the publication of the Seventh 

Report. Historically, the CMRS Reports

have looked at the extent of service 

availability as well as the number of 

consumers using mobile telephone 

services. In addition, the CMRS Reports

have looked at minutes of use, average 

revenue per unit, churn levels, and 

pricing trends as indicators of 

competition. 

ii. Service Availability 

8. The CMRS Reports include an 

analysis of the availability of 

commercial mobile telephone service 

that the Commission uses to evaluate 

competition in the U.S. mobile 

telephone industry. This analysis has 

732 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

heretofore been based on publicly 

available information released by 

operators, such as news releases, 

Securities and Exchange Commission 

(‘‘SEC’’) filings, coverage maps available 

on operators’ web sites, and network 

buildout notifications filed with the 

Commission. The statistics presented in 

the CMRS Reports based on this 

information include the number of 

providers operating in a given 

geographic area, the percent of the 

population living in areas with a certain 

number of competitors, and the extent 

of coverage of the various network 

technologies (e.g., analog, CDMA, 

TDMA, GSM, and iDEN). In the Third 

and Fourth Reports, the geographic area 

used as the basis for these analyses was 

Basic Trading Areas (‘‘BTAs’’); however, 

the subsequent CMRS Reports have been 

improved and present this information 

on a more disaggregated, county-bycounty basis. 

9. Previous CMRS Reports have 

included several notable caveats about 

our analysis of the service availability. 

First, to be considered as ‘‘covering’’ a 

county, an operator need only be 

offering any service in a portion of that 

county. Second, multiple operators 

shown as covering the same county are 

not necessarily providing service to the 

same portion of that county. 

Consequently, some of the counties 

included in this analysis may have 

limited coverage from a particular 

provider. Third, the figures for POPs 

and land area in this analysis include all 

of the POPs and every square mile in a 

county considered to have coverage. 

Therefore, this analysis overstates to 

some degree both the level of 

competition and total coverage in terms 

of both geographic area and population 

covered. On the other hand, while 

newer broadband PCS and SMR 

licensees have less complete networks 

that may be overstated in our analysis, 

the original cellular licensees have 

extensive networks that provide almost 

complete coverage of the entire land 

mass of their license areas, and hence 

the entire land area of the continental 

United States. 

10. We ask for comment on how to 

improve the methodology we use to 

determine service availability and 

evaluate competition. As described, the 

methodology inherently includes some 

undetermined degree of overcounting. 

Do commenters believe that this degree 

of overcounting is significant and 

materially affects the determination of 

mobile telephone service availability 

and competition? Is there an alternate 

methodology that could be used to 

determine service availability and 

competition? 

11. In order to improve the accuracy 

of our analysis and to reduce 

overcounting in the Eighth Report, we 

ask service providers to submit as part 

of their comments to the Commission, 

in electronic format, the coverage maps 

that they already make available to the 

public. Specifically, we request carriers 

submit as part of their comments the 

maps they employ to advertise their 

coverage areas in brochures and on their 

web sites in a geo-referenced, mapable 

format, such as MapInfo table (.tab) or 

Tagged Image Format (.TIF) files, on a 

CD sent to the Commission. The 

Commission has used the contours filed 

by 800 MHz cellular licensees to 

determine the availability of analog 

mobile telephone service, and therefore 

does not require additional maps 

showing analog coverage from cellular 

licensees. However, the Commission 

requests that cellular licensees submit 

as part of their comments their publiclyavailable maps in the aforementioned 

format showing where they offer reliable 

digital service. In addition to the 

coverage maps that carriers make 

available to the public, do carriers have 

maps with more detailed coverage 

information that are not available to the 

public? In the alternative, we ask 

carriers to please indicate in their 

comments if they do not have such 

maps. Would carriers or other parties be 

willing to submit such maps as part of 

their comments?

12. Moreover, carrier provision of 

their publicly-available coverage maps 

in electronic, geo-referenced format 

with clearly-defined boundary lines, 

would enable the Commission to 

examine more precisely the smaller 

geographic areas underlying the 

coverage boundaries, such as zip code 

areas or census block groups. These 

small geographic areas could therefore 

allow the Commission to make more 

accurate estimates of the population and 

land area covered by a certain number 

of carriers or served by a digital 

network. 

13. In conducting our analysis of 

service availability and competition, we 

seek information about the extent to 

which consumers are able to, and do, 

purchase service plans from carriers 

whose networks do not cover their 

residential location or billing address. 

Carriers frequently query potential 

subscribers about the zip code of their 

billing address. Should this be taken as 

an indication that carriers do not 

provide service to consumers whose 

billing address zip codes are outside the 

range of the carriers’ network coverage 

areas, even if such consumers wish to 

purchase service plans in order use their 

phones inside the coverage areas? To 

what extent are mobile telephone 

subscribers’ residential locations or 

billing addresses located outside of their 

carrier’s network coverage area? To 

what degree would an analysis of the 

population of smaller geographic areas 

that underlie carriers’ network coverage 

boundaries undercount those 

subscribers? Furthermore, would the 

use of other, smaller geographic areas in 

addition to or in place of counties be 

appropriate in analyzing service 

availability? If so, which areas would be 

appropriate? Do data currently exist on 

this basis? 

14. In order to continue to improve 

the accuracy of our analysis, we seek 

information on whether carriers market 

service to new customers in all of the 

geographic areas in which they have 

coverage. Do carriers provide coverage 

in certain areas, such as near major 

roads, where they do not also market 

service to residents? If the latter is true, 

our analysis could be further improved 

if carriers indicated the parts of their 

coverage areas in which they compete to 

offer new service and the parts that are 

used only to provide coverage to 

traveling subscribers based in other 

locations. In addition to employing 

more accurate coverage maps, in what 

other ways could our analysis of service 

availability be improved? 

15. We also seek data on the 

relationship between competition and 

the availability of roaming for wireless 

customers. To what extent do carriers 

have agreements that enable their 

customers to use automatic roaming 

throughout the United States? Are there 

geographic areas in which some carriers 

do not have automatic roaming 

agreements? If so, where are those areas 

and is there any correlation to the 

number of wireless providers operating 

in those areas? Are rural customers 

more affected than non-rural customers? 

How many customers use manual 

roaming? Where are those customers 

located when they use manual roaming, 

and how frequent is their usage? 

16. Finally, we seek comment on the 

fact that our service availability analysis 

relies on information reported by 

service providers, including their news 

releases, filings with the SEC, Web site 

coverage maps, and network buildout 

notifications filed with the Commission. 

In addition, there are independent web 

sites and public reports that include 

some information about service 

coverage and dead zones. There are 

risks to relying exclusively on data 

supplied by parties with a financial 

stake in the use of such data as part of 

Commission decisions. Since we, in 

some cases, report on information 

supplied only by one or two sources, we 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 733

also seek comment on ways of obtaining 

independent verification of competition 

information provided for the report. 

Which independent sources can be 

reliably used to verify carrier-supplied 

coverage information? Do commenters 

believe such verification is necessary in 

analyzing service availability and 

competition? 

17. In addition to analyzing service 

availability by all facilities-based mobile 

telephone carriers, previous CMRS 

Reports have discussed ‘‘nationwide’’

mobile telephone operators. Companies 

that analysts typically describe as being 

nationwide offer service in at least some 

part of the western, midwestern, and 

eastern United States. This label does 

not necessarily mean that the operator’s 

license areas, service areas, or pricing 

plans cover the entire land area of the 

United States. The Seventh Report listed 

six carriers that analysts typically 

describe as nationwide mobile 

telephone operators, all of which, with 

their affiliates and partnerships, have 

licenses covering between 230 and 285 

million people. We seek comment on 

whether it is appropriate to call these 

similarly situated operators 

‘‘nationwide’’ mobile telephone 

operators. Is there other terminology 

that would better describe the carriers 

that have a relatively large number of 

licensed POPs and provide coverage in 

multiple large regions of the United 

States? 

iii. Market Performance and Key Metrics 

18. The CMRS Reports have looked at 

a series of key metrics as indicators of 

the demand for and reliance on mobile 

telephone service. Examples of key 

metrics employed in the past include 

the number of subscribers and 

penetration rates, average minutes of 

use per subscriber per month (‘‘MOUs’’), 

average revenue per unit, and churn. In 

addition, the CMRS Reports look at the 

prices for mobile telephone services, 

including new developments in pricing 

plans; the extent of digital service; and 

wireless-wireline competition. The 

sources of data and analysis of these 

metrics are discussed. Are there other 

metrics or techniques that should be 

used to analyze competition in the 

mobile telephone sector? Are metrics 

available on a national and/or subnational level? What types of 

conclusions can and cannot be drawn 

from the current and recommended 

metrics? For example, is service quality 

related to competition? How would the 

Commission measure service quality? 

(a) Subscribership 

19. One of the key metrics that 

provides an indication of the demand 

for mobile telephone service is the total 

number of subscribers. Prior to the 

Seventh Report, the Commission relied 

on estimated national subscribership 

data from a semi-annual survey, started 

in 1985, conducted by the Cellular 

Telecommunications and Internet 

Association (‘‘CTIA’’). Beginning with 

the Seventh Report, however, the 

Commission was able to estimate the 

number of U.S. subscribers using 

information filed directly with the FCC. 

This information, the Numbering Report 

Utilization / Forecast (‘‘NRUF’’) data, 

tracks phone number usage in the 

United States. All mobile telephone 

carriers must report to the FCC which of 

their phone numbers they have assigned 

to end users, thereby permitting the 

Commission to make an accurate 

estimate of the total number of mobile 

telephone subscribers. As stated in the 

Seventh Report, the Commission used 

NRUF data to estimate that there were 

128.5 million subscribers in the United 

States as of December 31, 2001. The 

CTIA estimate for the same time was 

128.4 million subscribers. 

20. We seek comment on the use of 

NRUF data to estimate the total number 

of U.S. mobile telephone subscribers. 

We also seek comment on the continued 

use of CTIA’s estimate from its semiannual survey. Furthermore, we request 

information from commenters on other 

data sources that are available to 

determine the number of U.S. mobile 

telephone subscribers and whether 

parties are willing to provide the data. 

In addition, we request subscribership 

data that would assist in a greater 

understanding of the competitive 

landscape, such as penetration rates by 

age cohorts or household penetration 

rates. 

21. The Commission also collects 

subscribership data as part of the local 

competition and broadband data 

gathering program. Mobile telephone 

carriers with more than 10,000 facilitybased subscribers in a state are required 

to report their number of subscribers in 

those states twice a year to the 

Commission. Using this data, the 

Commission reported that mobile 

telephone carriers had 122.4 million 

U.S. subscribers as of December 31, 

2001. For purposes of the Eighth Report, 

we seek comment on whether this data 

should be used to draw any conclusions 

about the mobile telephone sector, or 

whether it undercounts subscribership 

to such a degree that it should not be 

employed for such purposes.

22. NRUF data is submitted to the 

Commission on a rate center basis. Rate 

center boundaries have in large part 

been determined by incumbent local 

exchange carriers for their own network 

management purposes. Because rate 

center boundaries are relatively small, 

the NRUF data allows the Commission 

to make sub-national or regional 

estimates of mobile telephone 

subscribership and penetration. 

However, there are a number of 

disadvantages associated with using 

NRUF data for this purpose. First, 

because CMRS carriers have wide 

latitude in choosing to which rate center 

to assign a phone number across a large 

geographic area, rate center boundaries 

are not necessarily indicative of where 

a phone number assignee, and hence a 

mobile telephone subscriber, lives, 

works, or uses her phone. In addition, 

rate center boundaries are not 

coterminous with other boundaries 

frequently used in mobile telephone 

analyses, such as counties, Cellular 

Market Areas (‘‘CMAs’’), or BTAs. 

Furthermore, in order to protect the 

confidentiality of the companies 

submitting NRUF data, the Commission 

does not report the number of 

subscribers for geographic areas in 

which there are three or fewer carriers. 

23. For purposes of the Seventh 

Report, the Commission chose to use 

Economic Areas (‘‘EAs’’) as the 

geographic unit for its sub-national 

subscribership analysis using NRUF 

data, in part because it minimized many 

of NRUF’s drawbacks, discussed. EAs, 

which are defined by the Department of 

Commerce, consist of one or more 

economic nodes and the surrounding 

areas that are economically related to 

the node. One of the main factors in 

determining the economic relationship 

between the economic node(s) and the 

surrounding areas is commuting 

patterns, so that each EA includes, as far 

as possible, the place of work and the 

place of residence of its labor force. 

Because EAs are large enough to include 

many rate centers and because they 

attempt to capture both the rate centers 

in which subscribers have their 

numbers assigned and the larger area in 

which they use their phones, an EAbased analysis minimizes the pitfalls of 

the NRUF data while still providing 

useful sub-national penetration 

information. 

24. We ask for comment on how to 

determine which geographic area or 

areas should be used, for purposes of 

the Eighth Report, to calculate mobile 

telephone subscribership and 

penetration rates. We request opinions 

on the appropriateness of using EAs for 

such calculations. Would other 

geographic areas be appropriate to use 

in place of or in addition to EAs, such 

as states, Major Trading Areas 

(‘‘MTAs’’), BTAs, CMAs, or counties, 

noting the caveats of the NRUF data 

734 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

discussed? In addition, are there other 

ways to interpret existing national and 

sub-national subscribership data for 

purposes of the Eighth Report? 

(b) Minutes of Use 

25. To analyze mobile telephone 

usage, the Commission has used MOUs 

as a key metric in the previous CMRS 

Reports. The Seventh Report includes 

MOU estimates from CTIA, Paul Kagan 

and Associates, and J.D. Power & 

Associates. All of these sources showed 

MOUs increasing substantially during 

2001. We seek comment on the use of 

MOUs as an indicator of the demand for 

mobile telephone services as well as of 

the level of competition in the mobile 

telephone sector. For purposes of the 

Eighth Report, we ask for comment on 

the sources of the MOU data presented 

in the Seventh Report and request 

additional MOU data. In addition, 

should the Commission perform other 

analyses or draw additional conclusions 

from new or existing data? 

26. All of the MOU sources presented 

in the Seventh Report estimate MOUs 

on a national basis. In order to increase 

the granularity of our analysis for the 

Eighth Report, we request data on 

MOUs on a sub-national basis and/or 

broken down by various demographic 

groups. 

(c) Average Revenue Per Unit 

27. Average monthly revenue per 

subscriber, often referred to as average 

revenue per unit or ‘‘ARPU’’, is another 

key metric presented in the CMRS 

Reports. One source of this metric is the 

industry-wide ARPU figure reported by 

CTIA in its semi-annual mobile 

telephone survey. In addition, many 

carriers report their individual ARPU 

figures periodically in their SEC filings. 

We seek comment on the use of ARPU 

as a metric in our analysis of the mobile 

telephone industry. Is ARPU a useful 

metric when analyzing competition? Is 

there a link between changes in ARPU 

and changes in competition? Is 

additional ARPU data available that 

should be considered, in particular data 

depicting whether and how ARPU 

varies by region and/or demographic 

group? Are there additional analyses 

that can be performed or conclusions 

that can be drawn in the Eighth Report 

from new or existing data? 

28. CTIA reported that ARPU 

declined almost continuously from 1987 

to 1999, going from a peak of $98.02 in 

December 1988 to a low of $39.43 in 

December 1998. However, since 1999, 

ARPU has been increasing, rising to 

$47.37 in December 2001. The Seventh 

Report concluded that the growth in 

ARPU might be the result of a variety of 

factors, including increased usage 

offsetting per-minute price declines, as 

well as the adoption of higher-priced 

monthly calling plans by consumers. 

We request from commenters additional 

input on the possible causes for the 

recent rise in ARPU, as well as 

additional data that may support 

various hypotheses. What role, if any, 

do changes in ARPU have on 

competition? 

(d) Churn 

29. Churn, a fourth key metric used in 

the CMRS Reports, refers to the number 

of customers an operator loses over a 

given period of time. The Seventh 

Report discussed churn estimates from 

Merrill Lynch, Salomon Smith Barney, 

and Telephia. Some of data included in 

these sources is reported by carriers, 

many of whom reveal their churn rates 

periodically in their SEC filings. Are 

there other sources of churn data 

available that should be included in the 

Eighth Report? 

30. We seek comment on the use of 

churn rates as a tool in our analysis of 

the mobile telephone industry, 

including to what extent churn rates are 

a reflection of competition in this 

industry. We ask if there are additional 

analyses that can be performed or 

conclusions that can be drawn from 

churn data in the Eighth Report. Do 

commenters believe the churn data we 

have included in previous reports is 

reliable?

31. The Telephia data presented in 

the Seventh Report included estimates 

of churn for selected metropolitan areas 

including Chicago, Los Angeles, New 

York, San Francisco, and Washington 

D.C. To improve our analysis of the 

mobile telephone industry in the Eighth 

Report, we request additional subnational or regional churn data, as well 

as churn data by demographic groups. 

iv. Pricing Data and Trends 

32. The Seventh Report contained 

pricing data from a series of sources, all 

of which indicated that the average 

price of mobile telephone service has 

been decreasing over time. The Seventh 

Report cited information from the U.S. 

Department of Labor’s Bureau of Labor 

Statistics (‘‘BLS’’), Econ One, and trends 

based on CTIA data. Using CTIA data, 

we calculated a national average of 

revenue per minute (‘‘RPM’’) by 

dividing ARPU by MOUs. We used this 

RPM figure as an estimate of the average 

price per minute of mobile telephone 

service. RPM has been declining every 

year since 1995. BLS began reporting a 

cellular telephone component of the 

Consumer Price Index (‘‘CPI’’) in 

December 1997 (‘‘cellular CPI’’). The 

cellular CPI decreased 5.5 percent 

during 2001, and 32.8 percent between 

1997 and 2001. The CPI, which includes 

the cellular CPI, represents 

approximately 87 percent of the U.S. 

population, and includes expenditure 

patterns of some of the rural 

populations. Do commenters believe the 

cellular CPI should be considered 

representative of national pricing 

trends? In contrast to our estimate of 

RPM and BLS’s cellular CPI, which 

attempt to capture national pricing 

trends, Econ One analyzes pricing plans 

for the top 25 U.S. cities. The firm also 

calculates the average price of service 

across four different monthly usage 

levels and derives, from that data, an 

average for all users. Econ One found 

that the average price of service (across 

all usage levels and 25 cities) declined 

7.3 percent during 2001, following a 6.9 

percent decline in 2000. 

33. We seek comment on the use of 

these various pricing estimates as a tool 

in our analysis of the mobile telephone 

industry, including to what extent price 

decreases are evidence of competition in 

the mobile telephone sector. We ask for 

feedback on the sources of the pricing 

data used in the Seventh Report and 

request additional national and subnational pricing data for the Eighth 

Report. Are there additional analyses 

that can be performed or conclusions 

that can be drawn from new or existing 

pricing data? 

34. The CMRS Reports have also 

examined new types of pricing plans 

introduced during the past year in order 

to report on major developments in the 

industry and to assess the new plans’

impact on competition. To what extent 

do new types of pricing plans both 

reflect a competitive industry and 

stimulate competition among providers? 

What are the major innovations that 

have occurred with pricing plans since 

the Seventh Report?

35. We seek information on which 

carriers offer nationwide pricing plans, 

particularly those that are not typically 

described as being nationwide 

operators, and request descriptions of 

the terms of such plans. We ask carriers 

that offer nationwide pricing plans 

whether they offer the same rates and 

terms to consumers throughout all parts 

of the country where they offer such 

plans, including Alaska, Hawaii, and 

Puerto Rico. Furthermore, do carriers 

charge different prices—both monthly 

and per minute—or offer different terms 

for their local and regional plans across 

the various areas that they serve? If so, 

are these geographic variations 

substantial, and what are the major 

reasons for such variations? 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 735

36. Is pricing data available on 

whether certain types of pricing plans 

are associated with specific 

demographic cohorts or types of users? 

For example, do subscribers with lower 

personal or household incomes tend to 

purchase pricing plans with lower 

monthly fees? Are particular plans 

associated with teenagers or college 

students? Are prepaid services used by 

a group of consumers with similar 

characteristics? Have the introduction of 

new types of pricing plans increased 

mobile telephone penetration among 

specific demographic groups or in 

certain geographic areas?

v. Geographic Comparisons: Urban 

versus Rural 

37. Since the release of the Sixth 

Report, the Commission has attempted 

to obtain a better understanding of the 

state of competition below the national 

level, in particular in rural areas. To 

begin with, we ask commenters to 

address whether an urban/rural 

distinction is meaningful in the context 

of mobile telephone service, given the 

varying types of geographic areas in 

which consumers use their mobile 

phones and carriers offer plans. 

38. To the extent that it is meaningful 

to analyze mobile telephone service 

availability in rural areas, we seek 

comment on how best to determine 

whether competition has developed 

successfully in rural areas. We invite 

parties to comment on what data is 

available to address this issue and 

whether they believe there is 

meaningful competition among mobile 

telephone providers in rural areas. 

39. The primary difficulty for the 

Commission in examining the state of 

competition in rural areas has been the 

lack of sub-national data. Prior to the 

release of the Seventh Report, the 

Commission held a Public Forum to 

gather more insights into and data about 

CMRS service availability in rural areas. 

Much of the information gathered was 

anecdotal. Therefore, additional data is 

needed, and we seek comment and 

information on three topics related to 

mobile telephone service availability in 

rural areas: (i) the definition of rural, (ii) 

service availability and network 

deployment, and (iii) market 

performance and key metrics. 

40. Do services, pricing plans, and 

technologies differ between rural areas 

and urban areas? Do the providers who 

serve both areas offer the same products 

and prices in each type of area? 

(a) Definition of Rural 

41. In order to analyze mobile 

telephone service availability and 

competition in rural areas, it is 

necessary to first define what 

geographic area(s) constitutes ‘‘rural.’’

The federal government has multiple 

ways of defining rural, reflecting the 

multiple purposes for which the 

definitions are used. The Commission 

has used Rural Service Areas (‘‘RSAs’’) 

to define ‘‘rural’’ in certain instances. In 

the CMRS spectrum cap proceeding, the 

Commission designated RSAs as rural 

areas and stated, ‘‘Other market 

designations used by the Commission 

for CMRS, such as [EAs], combine 

urbanized and rural areas, while MSAs 

and RSAs are defined expressly to 

distinguish between rural and urban 

areas.’’ Since passage of the 

Telecommunications Act of 1996, the 

Commission generally has used the 

statutory definition to determine which 

local exchange carriers can be classified 

as rural telephone companies. That 

definition uses a range of standards 

including the population of a 

jurisdiction and the number of access 

lines serving communities of various 

sizes. 

42. In the Seventh Report, we used 

three different proxy definitions of rural 

for purposes of analyzing the average 

number of competitors in rural versus 

non-rural counties. We compared the 

number competitors in (i) RSA counties 

versus MSA counties, (ii) non-nodal EA 

counties versus nodal EA counties, and 

(iii) counties with population densities 

below 100 persons per square mile 

versus those with population densities 

above 100 persons per square mile. 

43. We request comment on whether 

and how the Commission should define 

rural for purposes of the Eighth Report. 

What elements should the Commission 

consider when defining ‘‘rural’’? Should 

there be a single delineation between 

rural and non-rural areas, or should 

rural be defined on a continuum? For 

example, should the Eighth Report 

define different degrees of ‘‘ruralness’’

based on population density? 

(b) Rural Service Availability 

44. As mentioned, the Commission 

analyzed service availability in rural 

areas in the Seventh Report using three 

different proxy definitions for rural. The 

analysis resulted in similar results for 

each definition. Non-rural counties had 

an average of 5.5 to 5.7 service 

providers, while rural counties had an 

average of 3.1 to 3.3 competitors. We ask 

whether the existence of fewer facilitiesbased providers in rural areas 

necessarily indicates the existence of 

less meaningful competition in these 

areas. 

45. When examining service 

availability in rural areas, should the 

Commission continue to use multiple 

definitions of rural for purposes of the 

Eighth Report? Were the three 

definitions employed in the Seventh 

Report appropriate proxies to use in 

assessing competition in rural areas? 

Are there other geographic definitions 

that should be employed in the Eighth 

Report? Is data available that would 

allow an analysis using other 

definitions? 

46. In addition to addressing rural 

issues generally, we also take this 

opportunity to focus on access to 

telecommunications services by 

individuals living on tribal lands. In our 

Report and Order implementing auction 

bidding credits for those who commit to 

serving federally-recognized tribal 

lands, we noted that communities on 

tribal lands have had less access to 

telecommunications services than any 

other segment of the U.S. population. 

According to the 1990 Census, only 53 

percent of those living on tribal lands 

had basic telephone service, as opposed 

to 94 percent for the United States as a 

whole. Further, a 1999 study 

commissioned by the U.S. Department 

of Commerce’s Economic Development 

Administration found that the average 

penetration rate for basic telephone 

service on reservation and trust lands in 

rural areas was just 39 percent. 

Therefore, it may be appropriate to 

examine closely the state of 

telecommunications access not only in 

rural areas, but more specifically on 

tribal lands. 

47. We seek comment on whether the 

Eighth Report should specifically 

address the state of mobile telephone 

competition on tribal lands. If so, what 

issues are present on tribal lands that 

warrant separate consideration from 

other rural areas with similar 

population levels? In examining 

services available on tribal lands, 

should we limit our consideration to 

services available to individuals who 

live within federally-recognized tribal 

lands, or should we also include other 

nearby areas where Native Americans 

may live? If so, we ask that commenters 

provide details regarding which areas 

should be included in our discussion, 

and provide information or information 

sources for obtaining sufficiently 

granular data about services in such 

areas. 

(c) Rural Metrics 

48. As discussed, the CMRS Reports

have looked at key metrics as indicators 

of the demand for mobile telephone 

service and competition among mobile 

telephone providers. These metrics 

include the number of subscribers, 

MOUs, ARPU, churn, and pricing data. 

Historically, all of these metrics have 

736 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

been presented on a national basis, 

although sub-national subscribership 

and pricing data were included in the 

Seventh Report. Furthermore, we have 

requested sub-national or regional data 

for all of these metrics in sections 

II.A.iii. and II.A.iv., supra.

49. At this point, we request data for 

all of these metrics on a sub-national 

level and ask what the data show about 

differences between urban and rural 

areas in terms of demand and 

competition. Does information currently 

exist demonstrating differences in 

subscribership, MOUs, ARPU, churn, 

and prices in urban versus rural areas? 

If so, would commenters be willing to 

provide such information? 

50. Beginning with the Seventh 

Report, we presented subscribership 

figures on an EA basis using NRUF data. 

Should the Commission use NRUF data 

to determine subscribership and 

penetration rates in rural areas, however 

they may be defined? Would the NRUF 

data be able to provide accurate and 

meaningful statistics on rural 

subscribership given the limitations of 

the data discussed? Are there other 

sources of information that could be 

used to determine the number of 

subscribers and penetration rates in 

rural areas? 

51. The Commission knows of few 

studies that have been done comparing 

mobile telephone pricing in urban 

versus rural areas. However, Econ One 

has completed one study, which it 

presented at the Public Forum and 

which we included in the Seventh 

Report, that compared pricing in the 25 

largest U.S. cities (with an average 

population of 4.4 million) with 25 

randomly-selected towns or cities (with 

an average population of 95,611) located 

in RSAs. For purposes of its analysis, 

Econ One considered the towns or cities 

located in an RSA to be rural areas. The 

company reported very similar pricing 

in these two groups of cities. However, 

while the mean prices for monthly 

service in urban and rural areas were 

similar, there was a wider range of 

prices in rural areas than in urban areas. 

We ask for additional information on 

whether there are meaningful pricing 

differences between urban and rural 

areas. To the extent that such 

differences exist, what are the reasons 

for such differences? Should additional 

analyses on the differences between 

urban and rural mobile telephone 

pricing be performed? What additional 

conclusions can be drawn, and what are 

the limitations of those conclusions? 

52. Finally, to what extent do 

nationwide carriers affect prices and 

competition in rural areas, even if such 

carriers do not offer service in those 

areas? Do these carriers create the same 

competitive pressures in rural areas that 

they do in urban areas? 

vi. Wireless-Wireline Competition 

53. Mobile telephone service has been 

considered both a complement to and a 

substitute for wireline services. 

Historically, most consumers used their 

mobile phones as a mobile complement 

to their wireline phones by using their 

mobile handsets only when away from 

their homes or places of work. However, 

as noted in the Seventh Report, an 

estimated 3 to 5 percent of consumers 

have ‘‘cut the cord,’’ meaning they do 

not subscribe to wireline phone service. 

The Seventh Report included 

information about consumers who 

consider their mobile phones their 

primary phone but may still continue to 

have a wireline phone. Moreover, the 

Seventh Report noted that, due to the 

fact that several mobile telephone 

packages have extensive local service 

areas and/or include free long distance, 

many consumers now use their mobile 

phones instead of their wireline phones 

to make ‘‘long distance’’ calls.

54. In order to track and analyze 

competition between mobile telephone 

and wireline services more effectively, 

we request data on (i) The number of 

mobile telephone subscribers who do 

not subscribe to residential wireline 

service, (ii) the percentage of 

consumers’ total monthly voice 

communication minutes that are made 

from mobile phones, (iii) the percentage 

of consumers’ total monthly long 

distance minutes that are made from 

mobile phones, (iv) the percentage of 

mobile telephone subscribers’ calls and 

minutes that occur in their homes using 

their mobile phones, (v) the percentage 

of both mobile telephone and wireline 

calls and minutes that terminate on 

mobile phones, and (vi) demographic 

data on which groups of consumers 

have allocated a substantial portion of 

their voice communications to mobile 

telephone service. Should the 

Commission gather additional data, 

perform additional analyses, or draw 

new conclusions on wireless-wireline 

competition? 

55. The CMRS Reports have also 

discussed the effects of mobile 

telephone service on the operational 

and financial results of companies that 

offer wireline services. Such effects 

include a decrease in the number of 

residential access lines, a drop in long 

distance revenues, and a decline in 

payphone profits. To what extent is the 

increase in mobile telephone usage a 

major cause of these developments, and 

why? Given these developments, we ask 

for comment on the extent to which 

mobile telephone service competes with 

wireline service. What other effects has 

mobile telephone service had on the 

provision of other telecommunications 

services by other service providers? 

What new developments in wirelesswireline competition have occurred 

since the Seventh Report? What are the 

major reasons for these developments? 

vii. Satellite Operators 

56. Satellite operators offer mobile 

telephone services which, from a 

consumer’s point of view, have many of 

the same characteristics as terrestrialbased mobile telephone services. At 

least four carriers currently provide 

mobile satellite services (‘‘MSS’’) in the 

United States: Globalstar 

Telecommunications LTD, Iridium 

Satellite LLC, Inmarsat Limited, and 

Mobile Satellite Ventures. We request 

that these carriers submit as part of their 

comments information detailing the 

geographic areas of the United States in 

which they provide coverage as well as 

those areas in which they offer service 

to new customers. Taking into account 

such information on MSS service 

availability, we seek comment on the 

extent of competition among MSS 

providers. To what extent do MSS 

providers compete with terrestrial-based 

mobile telephone providers? Are MSS 

services substitutes for terrestrial-based 

mobile telephone and data services? 

Should MSS providers be considered an 

additional service provider in the 

analysis of service availability in the 

Eighth Report, or do they offer services 

that generally are not substitutes for 

services provided by terrestrial CMRS 

carriers, even though they fall under the 

legal umbrella of CMRS? 

viii. Resellers 

57. Resellers offer service to 

consumers by purchasing airtime at 

wholesale rates from facilities-based 

providers and reselling it at retail prices. 

According to information provided to 

the Commission in its ongoing local 

competition and broadband data 

gathering program, the resale sector 

accounted for approximately 5 percent 

of all mobile telephone subscribers as of 

December 2001. To what extent are 

resellers creating competitive pressures 

in the mobile telephone sector? In 2002, 

WorldCom, which claimed to be the 

largest reseller of post-paid wireless 

service the United States, announced 

that was abandoning the resale business. 

Who are the remaining major resellers? 

How many subscribers do they have? 

From a consumer perspective, what are 

the benefits of buying from a reseller 

versus a facilities-based provider? Are 

resellers selling to specific demographic 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 737

segments? The Seventh Report discusses 

‘‘mobile virtual network operators’’

(‘‘MVNOs’’) that are a type of reseller 

that focuses on brand development, 

with the intent to offer a niche product 

and to have better customer retention. 

An example of an MVNO is Virgin 

Group LLC (‘‘Virgin’’). Virgin has an 

arrangement with Sprint PCS whereby 

Virgin markets prepaid mobile 

telephone service using Sprint PCS’s 

network. We ask for comment on how 

this resale model has affected the 

provision of resale services. We also ask 

for information about companies that 

have employed the MVNO resale model 

since the Seventh Report.

ix. International Developments 

58. The Seventh Report compared the 

mobile telephone sectors in the United 

States, Western Europe, and parts of the 

Asia-Pacific by examining a number of 

performance measures, including 

penetration levels, subscriber growth, 

MOUs, and pricing. The scope of 

international comparisons in the 

Seventh Report and previous CMRS 

Reports has been constrained by the 

availability of comparable international 

data. For the purposes of the Eighth 

Report, we seek data to update and 

possibly expand upon these 

international comparisons. 

59. The international comparisons in 

the Seventh Report were based on 

various sources of data that were 

generally current as of the second half 

of 2001. We request suggestions on 

sources of data for updating 

international comparisons of 

penetration levels, subscriber growth, 

and usage for the year 2002. 

60. The Seventh Report used 

Organization for Economic CoOperation and Development (‘‘OECD’’)/

Teligen mobile service baskets and 

revenue per minute (‘‘RPM’’) estimates 

to compare mobile telephone pricing in 

the United States, Canada, and parts of 

Western Europe and the Asia-Pacific. 

We request recommendations on 

alternative methods of comparing 

mobile telephone pricing in different 

countries and associated sources of data. 

We also seek suggestions on sources of 

data for updating the international 

comparison of RPM. 

61. We also invite suggestions on 

additional performance measures and 

associated data sources for comparing 

the U.S. mobile telephone sector with 

those in other countries.

B. Competition in the Mobile Data 

Sector 

i. Introduction 

62. For purposes of its CMRS Reports,

the Commission considers mobile data 

to be the delivery of non-voice 

information to a mobile device. Twoway mobile data services include not 

only the ability to receive non-voice 

information on an end-user device but 

the ability to send it from an end-user 

device to another mobile or landline 

device using wireless technology. The 

Seventh Report concluded that 

competition within the mobile data 

sector is developing successfully, as 

evidenced by the multitude of dynamic 

services, service packages, and pricing 

plans available to consumers from a 

variety of providers. 

63. For purposes of the Eighth Report, 

we seek information on the significant 

changes and developments that have 

occurred in the mobile data industry 

since the publication of the Seventh 

Report. Do commenters believe that 

competition is continuing to develop 

successfully within the mobile data 

sector? 

64. In analyzing competition within 

the mobile data industry, it is necessary 

to consider the relationship between 

mobile data and mobile telephone 

service. Both services are offered by 

many of the same providers using the 

same networks and end user devices, 

yet differences in the nature of the two 

services exist. Hence, to what extent are 

the mobile data and mobile telephone 

sectors separate, and to what extent are 

they converging? 

65. Related to this issue of 

convergence, the Seventh Report

discussed the emergence of smartphone 

devices during 2001 and 2002 that 

combine the organization and datacentric features of personal digital 

assistants (‘‘PDAs’’) with the voice 

capabilities of mobile telephones. We 

seek comment on the extent to which 

the emergence of smartphones has 

signified a convergence between mobile 

data and mobile telephone service, and 

we seek data on the growth in the 

number of users of these devices. How 

many smartphones have been sold in 

the United States? What types of 

consumers purchase smartphones? 

What are the features and capabilities of 

the various devices? Finally, have there 

been any new developments related to 

smartphones since the Seventh Report?

ii. Services & Content 

66. The Seventh Report described 

three general categories of mobile data 

providers and their corresponding 

devices: (i) mobile telephone operators 

offering services primarily on mobile 

telephone handsets, (ii) providers of 

mobile data access to handheld PDA 

devices and laptop computers, and (iii) 

paging carriers offering services on 

pagers and two-way messaging devices. 

However, in analyzing subsectors 

within the mobile data industry, for 

several reasons we have found it most 

effective to segregate the industry not 

along the lines of devices, spectrum 

bands, or network technologies, but 

instead along the lines of the types of 

services available to consumers. First, 

the types of mobile data services 

available to consumers have become 

increasingly similar across devices. 

Many of the same mobile data services 

are available on mobile telephone 

handsets, PDAs, smartphones, and 

laptop computers. With the exception of 

traditional one-way pagers, most mobile 

data devices have the ability to offer 

some form of text messaging, web 

browsing, and e-mail access. Second, 

carriers use a variety of different 

spectrum bands—including broadband 

PCS, cellular, and SMR—and a variety 

of different network technologies—

including CDMA, GSM, cdma2000 

1xRTT (‘‘1xRTT’’), and General Packet 

Radio Service (‘‘GPRS’’)—to provide 

many of the same mobile data services. 

67. The types of services discussed in 

the Seventh Report include: Paging, 

Short Messaging Service (‘‘SMS’’) and 

instant messaging (‘‘IM’’), web 

browsing, e-mail and corporate server 

access, location-based services, and 

short range data transmissions. Are 

there additional categories that should 

be analyzed in the Eighth Report? What 

new and innovative services are mobile 

data providers offering? In addition, we 

seek comment on the extent to which 

mobile data services are substitutes for 

or complements of one another? For 

example, do messaging services 

compete with e-mail services? Are web 

browsing services a complement to email access? Which services are most 

often bundled together, and why? 

68. In addition to seeking data on the 

level of competition among different 

mobile data services, we request 

information on the extent to which 

mobile data services compete with data 

services offered through wireline 

devices. For example, have mobile email services been a substitute for email access on a personal computer 

offered through a dial-up, Digital 

Subscriber Line (‘‘DSL’’), or cable 

modem connection? 

69. Furthermore, we request data on 

the growth and success of the various 

mobile data services. Which services are 

most popular with consumers and have 

the highest adoption rates? In what 

738 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

ways do services offered over 1xRTT 

and GPRS networks differ from those 

offered over 2G networks? 

70. In addition to requesting comment 

on mobile data services generally and 

the economic relationship between 

these services, we also seek information 

related to specific mobile data services. 

(a) Paging 

71. Traditional paging service consists 

of a one-way data communication sent 

to a mobile device that alerts the user 

when it arrives. The communication 

usually consists of a phone number for 

the user to call, but could also contain 

a short text message or information 

update. As discussed in the various 

CMRS Reports, the number of 

subscribers to traditional one-way 

paging services has been declining over 

the past few years. In addition, all of the 

major paging carriers have filed for 

bankruptcy reorganization over the past 

two years. Do commenters foresee 

continued demand for one-way paging 

services? If so, who are the major 

purchasers of one-way paging services? 

What specific advantages do one-way 

paging services offer for these 

consumers versus other services? How 

many paging subscribers also own a 

mobile telephone? 

(b) Web Content 

72. As explained in the Sixth and 

Seventh Reports, mobile web browsing 

services allow users to access content 

from the World Wide Web on a mobile 

device. The web browsing services 

offered can vary by provider and by 

device in both the type and amount of 

content that users can receive. For 

example, mobile web subscribers using 

laptops may be able to connect to any 

web page and view graphical content, 

while users accessing the web from a 

mobile telephone handset may be able 

to view only a limited number of textbased web pages that have been 

redesigned for mobile devices. 

Furthermore, some carriers limit the 

web sites that users can access to those 

with which they have a content 

agreement. 

73. We invite commenters to address 

the extent to which users have a choice 

of which content they receive. Can users 

of mobile web services access any web 

site, only those have been re-designed 

for access on mobile device, or only 

those with whom the carrier has a 

content agreement? Approximately how 

many web sites have been specially 

designed for use on a mobile device? 

74. Have there been any notable 

technological developments in the past 

year that have facilitated a greater 

availability of mobile web browsing 

services? 

(c) Text Messaging 

75. As mentioned in the Seventh 

Report, SMS provides the ability for 

users to send and receive text messages 

to and from mobile devices with 

maximum message length ranging from 

120 to 500 characters. We seek data on 

the growth rate of SMS in the United 

States over the past several months. 

How many SMS messages have been 

sent in the United States over time?

76. Furthermore, as of mid-2002, most 

of the major mobile telephone carriers 

had introduced the ability to exchange 

text messages with subscribers on other 

carriers’ networks. We seek information 

on how this intercarrier interoperability 

has affected SMS adoption rates and the 

volume of SMS traffic. 

77. In addition to offering SMS, some 

carriers offer IM services. Instant 

messaging services, such as AOL Instant 

Messenger (‘‘AIM’’) and MSN 

Messenger, enable users to send and 

receive messages within a community of 

users, creating a chat-style atmosphere, 

whereas SMS is a communication 

between two individuals. From their 

mobile devices, AIM users are able to 

tell whether or not someone from their 

‘‘buddy list’’—a list of other AIM users 

with whom the initial user 

communicates—is online. In addition, 

AIM users can communicate with their 

buddies regardless of whether they are 

on a desktop computer or a mobile 

telephone. AT&T Wireless, Sprint PCS, 

T-Mobile, and Palm have offered AIM to 

their users, while Verizon Wireless and 

Cingular Wireless have offered MSN 

Messenger. Unlike with SMS, open 

access or interprovider interoperability 

is not available with IM services; AIM 

users cannot exchange messages with 

users of MSN Messenger. To what 

extent have these access and 

interoperability issues affected demand 

for instant messaging services in the 

mobile data sector? 

78. As mentioned, the Commission 

invites comment of the extent to which 

the various mobile data services 

compete with each other. In particular, 

we ask to what extent text messaging 

and e-mail are substitutes for each other. 

In what ways do the features and 

capabilities of the two services vary? 

(d) E-mail and Corporate Server Access 

79. As discussed in the Seventh 

Report, a variety of services are 

available to consumers that allow them 

to receive e-mail messages while mobile 

from an existing home- or work-based email account. We seek information from 

commenters on the specific capabilities 

of these various mobile e-mail services. 

To what extent are features such as 

forwarding and deleting integrated with 

consumers’ other e-mail accounts? Are 

users able to view attachments? In 

addition, we seek information on the 

specific capabilities of services that 

allow users to access corporate intranets 

or files stored on corporate servers from 

a mobile device. 

80. With regard to both types of 

services, we seek information on how 

much data or content a user can 

download, and how quickly and 

reliably. Furthermore, are these services 

secure? What level of security and/or 

encryption is offered by these various 

services? 

iii. Devices 

81. Mobile data services, and in 

particular mobile Internet services, are 

offered on a variety of end-user devices. 

Which devices are used most for mobile 

Internet access? Furthermore, do any of 

the features of mobile data devices—

such as battery life, data storage 

capacity, and screen size—constrain the 

ability of users to access mobile Internet 

services, and therefore limit the demand 

for such services? Which features on 

which devices might limit mobile 

Internet access the most? 

iv. Subscribership 

82. In addition to seeking information 

on the capabilities of the various mobile 

data services discussed, we also request 

data on the number of subscribers to 

and users of mobile Internet services. 

How many people in the United States 

subscribe to or use any type mobile 

Internet service? Do most mobile 

Internet users also subscribe to mobile 

telephone service? How many people 

use the different types of mobile data 

services, including paging, SMS, IM, 

web browsing, e-mail, and corporate 

server access? In the Seventh Report, we 

used NRUF data to estimate the number 

of paging subscribers at the end of 2001. 

Do commenters agree that this is a 

reliable method for calculating the 

number of subscribers to that particular 

service?

83. How many people subscribe to or 

use higher-speed mobile Internet 

services provided over 1xRTT and GPRS 

networks? How does subscribership to 

the various mobile data services vary by 

geographic region and among various 

demographic groups? 

v. Service Availability 

84. In preparation for the Eighth 

Report, we request information on the 

availability of mobile data services 

offered over 2G mobile networks, as 

well as higher-speed mobile data 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 739

services offered over 1xRTT and GPRS 

networks. 

85. Do carriers offer any type of 

mobile Internet service in any portion of 

their service areas? In what percentage 

of their license and network footprints 

do carriers offer mobile Internet 

services? Are the same types of services 

available in all areas? What percent of 

carriers’ licensed and network POPs are 

located in the areas where mobile 

Internet services are available? Does 

mobile data service availability vary 

between urban and rural areas? 

86. The Seventh Report summarized 

the deployment of next-generation 

network technologies 1xRTT and GPRS 

on a county-by-county basis as of March 

2002. For purposes of the Eighth Report, 

we seek information on the extent to 

which carriers have continued to 

upgrade their networks with these nextgeneration technologies since March 

2002. In what portion of their license 

and network footprints have carriers 

deployed 1xRTT or GPRS, and in what 

portion do they offer advanced wireless 

services using these technologies? Are 

the same types of advanced wireless 

services available in all areas? Does the 

availability of advanced wireless 

services vary between urban and rural 

areas? What percent of carriers’ licensed 

and network POPs are located in the 

areas where 1xRTT or GPRS-based 

mobile data services are available? 

Furthermore, what percent of the U.S. 

population has access to advanced 

wireless services provided by 1xRTT 

and/or GPRS? 

87. Furthermore, we request comment 

on the actual data transfer speeds that 

most users experience with GPRS and 

with 1xRTT. Do the two technologies 

differ in this respect? To what degree 

are individual users’ data transfer 

speeds depleted as more users log on to 

the network in a given area? 

88. Finally, we request information on 

the extent to which mobile data 

providers are upgrading or plan to 

upgrade their networks with additional 

next generation technologies beyond 

GPRS and 1xRTT, such as EDGE, 

WCDMA, and 1X–EV. 

vi. Pricing 

89. In analyzing competition in the 

mobile data industry and the general 

evolution of this sector, we have 

examined the prices charged by 

providers for various mobile data 

services. While the analysis of pricing in 

the mobile telephone sector includes an 

estimate of per-minute pricing, such an 

estimate is not feasible in the mobile 

data sector given the variety of services 

and the variety of pricing techniques 

used by carriers. Therefore, the previous 

CMRS Reports have summarized and 

compared, in some cases over time, the 

different prices carriers charge as well 

as various pricing methods they use. 

90. For the Eighth Report, we request 

data from providers on the prices they 

charge for the various mobile data 

services they offer. How have these 

prices changed over time? 

91. In addition to asking for actual 

pricing data, we also seek comment on 

the general trends related to mobile data 

pricing. To what extent do providers 

bundle mobile data services with each 

other and with voice service? Do 

providers offer mobile data services as 

add-ons service to voice service or as 

standalone services? Are mobile data 

services offered on a per-use basis or on 

a monthly subscription basis? Finally, 

do providers charge for mobile data 

services by the megabyte of data, by the 

minutes of usage, by the incremental 

service, and/or do they offer a flat rate 

for unlimited usage?

92. In addition, we seek information 

on the degree to which mobile data 

providers, in their pricing plans and 

marketing efforts, distinguish between 

mobile Internet services offered over 2G 

networks and those offered over nextgeneration 1xRTT and GPRS networks. 

93. Are the prices of mobile data 

services generally the same across all 

the geographic areas in which carriers 

offer them? Do the prices vary by region, 

in particular between urban and rural 

areas? To the extent that they do vary 

by region, what are the reasons for this? 

vii. WiFi 

94. Over the past year, the WLAN 

technology, Wireless Fidelity or WiFi, 

has begun to play an increasingly 

important role in the mobile data 

industry. WiFi operates in the 

unlicensed spectrum bands using 

primarily the 802.11 wireless 

technology standards and allows data 

transfer speeds of up to 11 Mbps. While 

WiFi is not a CMRS service per se, we 

included a discussion of it in previous 

CMRS Reports because of its potential to 

affect the provision of CMRS services. 

95. Users of mobile devices with WiFi 

capabilities or attachments can establish 

a high-speed, wireless connection to the 

Internet within a variety of settings, 

including restaurants, coffee shops, 

hotels, airports, convention centers, 

office buildings, and college campuses. 

These buildings or campuses generally 

connect to the Internet via a high-speed 

wireline technology such as a T–1 line, 

and WiFi users lose their high-speed 

wireless connections once they exit 

these settings. Given both the 

advantages and limitations of WiFi, do 

commenters believe that it competes 

with commercial, interconnected mobile 

data services? Does WiFi have the 

potential to compete with these services 

to a greater extent in the future? 

96. For purposes of the Eighth Report, 

we request data on the current extent of 

WiFi deployment and usage. How many 

people or what percent of the U.S. 

population subscribes to or uses WiFi 

services? In how many locations is WiFi 

currently available, and in which types 

of locations do most users establish 

WiFi connections? What data transfer 

speeds do most users experience with 

the various WiFi technology standards, 

including 802.11a, 802.11b, and 

802.11g? In addition, what are the major 

drawbacks of WiFi access? To what 

degree are WiFi connections secure for 

end users? What, if any, interference 

problems are associated with WiFi 

access? Are voice services possible and 

available using WiFi connections? 

97. Finally, we seek information on 

the other uses of unlicensed spectrum 

besides WiFi. Are both voice and data 

services available through these other 

types of connections? What is the extent 

of deployment of these other services? 

III. Fixed Voice and Data Services 

98. In addition to providing an 

analysis of competition in the 

commercial mobile services industry, 

the CMRS Reports have also included an 

appendix providing an overview of the 

current state of the fixed wireless 

industry. Some licensees of spectrum 

bands traditionally used for CMRS are 

using that spectrum to provide fixed 

wireless services. Furthermore, because 

most fixed wireless carriers have 

typically offered two-way, high-speed 

data services, the fixed wireless sector is 

discussed in greater detail in the 

Commission’s annual report on the 

deployment of broadband services, 

pursuant to section 706 of the 

Telecommunications Act of 1996. 

99. With the Notice of Inquiry, the 

Commission seeks the data from 

commenters on the state of the fixed 

wireless industry to incorporate into the 

Fixed Wireless Appendix of the Eighth 

Report. Who are the major providers of 

fixed wireless services? Have the 

carriers that experienced financial 

difficulties over the past two years made 

progress towards recovery and formed 

new business strategies? Which 

spectrum bands are currently being used 

by operators to deploy fixed services, 

including the unlicensed spectrum 

bands? In what portion of the United 

States, measured by both population 

and land area, are fixed wireless 

services available? To what extent have 

fixed wireless networks been deployed 

in rural areas? How many fixed wireless 

740 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

systems employ unlicensed spectrum? 

How many businesses and households 

currently subscribe to fixed wireless 

services? What are the typical data 

transfer rates offered by the various 

fixed wireless systems? Have there been 

in any major technological innovations 

that have affected the fixed wireless 

industry over the past year? 

IV. Procedural Matters 

A. Ex Parte Presentations 

100. This is an exempt proceeding in 

which ex parte presentations are 

permitted (except during the Sunshine 

Agenda period) and need not be 

disclosed. 

B. Filing of Comments and Reply 

Comments 

101. We invite comment on the issues 

and questions set forth. Pursuant to 

§§ 1.415 and 1.419 of the Commission’s 

rules, 47 CFR 1.415, 1.419, interested 

parties may file comments on or before 

January 27, 2003, and reply comments 

on or before February 11, 2003. 

Comments may be filed using the 

Commission’s Electronic Comment 

Filing System (ECFS) or by filing paper 

copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (May 1, 1998). 

102. Comments filed through the 

ECFS can be sent as an electronic file 

via the Internet to <http://www.fcc.gov/

e-file/ecfs.html>. Generally, only one 

copy of an electronic submission must 

be filed. If multiple docket or 

rulemaking numbers appear in the 

caption of this proceeding, however, 

commenters must transmit one 

electronic copy of the comments to each 

docket or rulemaking number 

referenced in the caption. In completing 

the transmittal screen, commenters 

should include their full name, U.S. 

Postal Service mailing address, and the 

applicable docket or rulemaking 

number. Parties may also submit an 

electronic comment by Internet e-mail. 

To get filing instructions for e-mail 

comments, commenters should send an 

email to ecfs@fcc.gov, and should 

include the following words in the body 

of the message: ‘‘get form.’’ A sample 

form and directions will be sent in 

reply. Parties who choose to file by 

paper must file an original and four (4) 

copies of each filing. Parties choosing to 

submit, as part of their comments, map 

files in response to requests in 

paragraphs 11 through 14, paragraph 56, 

or paragraph 86, supra, should submit a 

CD (compact disc) containing one copy 

of the maps of their service areas, with 

the various distinctions described, in a 

format, either MapInfo table (.tab) or 

Tagged Image Format (.TIF), that will 

allow Commission staff to open and use 

these files in MapInfo Professional 

software, version 6.0. If you have 

questions about submitting map files, 

please contact Chelsea Fallon at (202) 

418–7991. Paper filings and CDs 

containing map files can be sent by 

hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail (although we continue to 

experience delays in receiving U.S. 

Postal Service mail). The Commission’s 

contractor, Vistronix, Inc., will receive 

hand-delivered or messenger-delivered 

paper filings for the Commission’s 

Secretary at 236 Massachusetts Avenue, 

NE., Suite 110, Washington, DC 20002. 

The filing hours at this location are 8 

a.m. to 7 p.m. All hand deliveries must 

be held together with rubber bands or 

fasteners. Any envelopes must be 

disposed of before entering the building. 

Commercial overnight mail (other than 

U.S. Postal Service Express Mail and 

Priority Mail) must be sent to 9300 East 

Hampton Drive, Capitol Heights, MD 

20743. U.S. Postal Service first-class 

mail, Express Mail, and Priority Mail 

should be addressed to 445 12th Street, 

SW., Washington, DC 20554. All filings 

must be addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

Parties also should send four (4) paper 

copies of their filings to Chelsea Fallon, 

Federal Communications Commission, 

Room 4–A335, 445 12th Street, SW., 

Washington, DC 20554. 

V. Ordering Clauses 

103 Accordingly, it is ordered that, 

pursuant to the authority contained in 

sections 4(i), 4(j), and 403 of the 

Communications Act of 1934, as 

amended, the Notice of Inquiry is 

adopted.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

[FR Doc. 03–218 Filed 1–6–03; 8:45 am] 

BILLING CODE 6712–01–P

This section of the FEDERAL REGISTER

contains documents other than rules or

proposed rules that are applicable to the

public. Notices of hearings and investigations,

committee meetings, agency decisions and

rulings, delegations of authority, filing of

petitions and applications and agency

statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

741

Vol. 68, No. 4

Tuesday, January 7, 2003

DEPARTMENT OF AGRICULTURE 

Forest Service 

Notice of Idaho Panhandle Resource 

Advisory Committee Meeting

AGENCY: Forest Service, USDA.

ACTION: Notice of meeting.

SUMMARY: Pursuant to the authorities in 

the Federal Advisory Committee Act 

(Pub. L. 92–463) and under the Secure 

Rural Schools and Community SelfDetermination Act of 2000 (Pub. L. 106–

393) the Idaho Panhandle National 

Forest’s Idaho Panhandle Resource 

Advisory Committee will meet Friday, 

January 17, 2003 at 9:30 a.m. in Coeur 

d’ Alene, Idaho for a business meeting. 

The business meeting is open to the 

public.

DATES: January 17, 2003.

ADDRESSES: The meeting location is the 

Idaho Panhandle National Forest’s 

Supervisor’s Office, located at 3815 

Schreiber Way, Coeur d; Alene, Idaho 

83815.

FOR FURTHER INFORMATION CONTACT:

Ranotta K. McNair, Forest Supervisor 

and Designated Federal Official, at (208) 

765–7369.

SUPPLEMENTARY INFORMATION: The 

meeting agenda will focus on reviewing 

project proposals for fiscal year 2003 

and recommending funding for projects 

during the business meeting. The public 

forum begins at 1 p.m.

Dated: January 31, 2002. 

Ranotta K. McNair, 

Forest Supervisor.

[FR Doc. 03–225 Filed 1–6–03; 8:45 am] 

BILLING CODE 3410–11–M

DEPARTMENT OF COMMERCE

International Trade Administration

[A-469–807]

Stainless Steel Wire Rod From Spain: 

Rescission of Antidumping Duty 

Administrative Review

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce.

ACTION: Notice of Rescission of 

Antidumping Duty Administrative 

Review.

EFFECTIVE DATE: January 7, 2003.

FOR FURTHER INFORMATION CONTACT:

Kevin Williams or Timothy Finn at 

(202) 482–2371 or (202) 482–0065, 

respectively; AD/CVD Enforcement, 

Office 4, Group II, Import 

Administration, International Trade 

Administration, U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

Unless otherwise indicated, all 

citations to the Tariff Act of 1930, as 

amended (the Act), are references to the 

provisions effective January 1, 1995, the 

effective date of the amendments made 

to the Act by the Uruguay Round 

Agreements Act (URAA). In addition, 

unless otherwise indicated, all citations 

to the Department of Commerce’s (the 

Department’s) regulations are to the 

regulations at 19 CFR Part 351 (2002).

Background

On September 3, 2002, the 

Department published a notice of 

opportunity to request an administrative 

review of the antidumping duty order 

on stainless steel wire rod (SSWR) from 

Spain (67 FR 56267).

Pursuant to a request made by 

Carpenter Technology Corp. (the 

petitioner), the Department initiated an 

administrative review of the 

antidumping duty order on SSWR from 

Spain for the period September 1, 2001, 

through August 31, 2002 on October 18, 

2002 (67 FR 65336)(October 24, 2002)). 

On December 6, 2002, the petitioner 

withdrew its request for the 

administrative review of SSWR from 

Spain.

Rescission of Review

Section 351.213(d)(1) of the 

Department’s regulations provides that a 

party that requests an administrative 

review may withdraw the request 

within 90 days after the date of 

publication of the notice of initiation of 

the requested administrative review. 

The Department is rescinding the 

administrative review of the order on 

SSWR from Spain for the period 

September 1, 2001 through August 31, 

2002 because the requesting party has 

withdrawn its request for this 

administrative review within the 90-day 

time limit and no other interested 

parties have requested a review of 

SSWR from Spain for this time period.

This notice is in accordance with 

section 777(i)(1) of the Act and 19 CFR 

351.213(d)(4).

Dated: December 31, 2002.

Bernard T. Carreau,

Deputy Assistant Secretary for Import 

Administration.

[FR Doc. 03–290 Filed 1–6–03; 8:45 am]

BILLING CODE 3510–DS–S

DEPARTMENT OF COMMERCE

International Trade Administration 

Applications for Duty-Free Entry of 

Scientific Instruments 

Pursuant to Section 6(c) of the 

Educational, Scientific and Cultural 

Materials Importation Act of 1966 (Pub. 

L. 89–651; 80 Stat. 897; 15 CFR part 

301), we invite comments on the 

question of whether instruments of 

equivalent scientific value, for the 

purposes for which the instruments 

shown below are intended to be used, 

are being manufactured in the United 

States. 

Comments must comply with 15 CFR 

301.5(a)(3) and (4) of the regulations and 

be filed within 20 days with the 

Statutory Import Programs Staff, U.S. 

Department of Commerce, Washington, 

DC 20230. Applications may be 

examined between 8:30 a.m. and 5 p.m. 

in Suite 4100W, U.S. Department of 

Commerce, Franklin Court Building, 

1099 14th Street, NW., Washington, DC. 

Docket Number: 02–050. Applicant:

The University of Texas at Austin, 

Fusion Research Center, 1 University 

Station, C1510, Austin, TX 78712. 

Instrument: ‘‘Helimak’’ Custom 

742 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Magnetized Plasma Turbulence 

Apparatus. Manufacturer: Academia 

Sinica Institute of Plasma Physics, 

Peoples Republic of China. Intended 

Use: The instrument is intended to be 

used to study turbulence and transport 

in plasmas, principally hydrogen and 

argon plasmas. The basic properties of 

the plasma—density, temperature, and 

velocity—will be measured as well as 

the behavior of the fluctuations 

(turbulence) in those quantities. 

Experimental objectives include 

validating the nonlinear mechanisms 

occurring in plasma turbulence and the 

effect of shear in the flow velocity in 

stabilizing the turbulence. Application 

accepted by Commissioner of Customs:

December 12, 2002. 

Docket Number: 02–051. Applicant:

National Renewable Energy Lab (NREL), 

1617 Cole Boulevard, Golden, CO 

80401. Instrument: Ignition Quality 

Tester. Manufacturer: Advanced Engine 

Technology Ltd., United Kingdom. 

Intended Use: The instrument is 

intended to be used to measure the 

ignition delay, maximum chamber 

temperature, rate of heat rise, and 

autoignition temperature of various 

diesel fuels, surrogate molecules, 

additives, and alternative fuel 

compounds to better understand how 

the molecular structure of fuel 

compounds relates to the ignition 

quality (and potentially to the exhaust 

emissions). The instrument will also be 

used to characterize new fuels (such as 

biodiesel) prior to testing them in 

engines. Application accepted by 

Commissioner of Customs: December 

20, 2002.

Gerald A. Zerdy, 

Program Manager, Statutory Import Programs 

Staff.

[FR Doc. 03–291 Filed 1–6–03; 8:45 am] 

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration 

[Docket No.: 991215340–2318–02] 

Collaborative Science, Technology, 

and Applied Research (CSTAR) 

Program

AGENCY: National Weather Service 

(NWS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce (DOC).

ACTION: Notice and request for 

proposals. 

SUMMARY: The CSTAR Program 

represents an NOAA/NWS effort to 

create a cost-effective continuum of 

basic and applied research to operations 

through collaborative research between 

operational forecasters and academic 

institutions which have expertise in the 

environmental sciences. These activities 

will engage researchers and students in 

applied research of interest to the 

operational meteorological community 

and improve the accuracy of forecasts 

and warnings of environmental hazards 

by applying scientific knowledge and 

information to NWS products and 

services. The NOAA CSTAR Program is 

a contributing element of the U.S. 

Weather Research Program. NOAA’s 

program is designed to complement 

other agency contributions to that 

national effort.

DATES: Proposals must be received by 

the NWS no later than close of business 

February 21, 2003. We anticipate review 

of full proposals will occur during 

March 2003, and funding should begin 

during early summer 2003 for most 

approved projects. June 1, 2003, should 

be used as the proposed start date on 

proposals, unless otherwise directed by 

the Program Officer. Applicants should 

be notified of their status within 3 

months of the closing date. All 

proposals must be submitted in 

accordance with the guidelines below. 

Failure to follow these guidelines will 

result in proposals being returned to the 

submitter.

ADDRESSES: Proposals must be 

submitted to NOAA/NWS; 1325 EastWest Highway, Room 15330; Silver 

Spring, Maryland 20910–3283.

FOR FURTHER INFORMATION CONTACT: Sam 

Contorno (see ADDRESSES), or by phone 

at 301–713–3557 ext. 150, or fax to 301–

713–1253, or via internet at 

samuel.contorno@noaa.gov.

SUPPLEMENTARY INFORMATION:

Authority: 15 U.S.C. 313; 49 U.S.C. 44720 

(b); 33 U.S.C. 883d; 15 U.S.C. 2904; 15 U.S.C. 

2934. 

Catalog for Federal Domestic 

Assistance 

This program is designated under 

Catalog for Federal Assistance number 

11.468, Applied Meteorological 

Research. 

Funding Availability

NOAA/NWS believes its warning and 

forecast mission will benefit 

significantly from a strong partnership 

with outside investigators. Current 

program plans assume the total 

resources provided through this 

announcement will support extramural 

efforts through the broad academic 

community. Because of Federal budget 

uncertainties, it has not been 

determined how much money will be 

available through this announcement. 

Proposals should be prepared assuming 

an annual budget of no more than 

$125,000. It is expected that 

approximately four awards will be 

made, depending on availability of 

funds. This program announcement is 

for projects to be conducted by 

university investigators for a 1-year, 2-

year, or 3-year period. When a proposal 

for a multi-year award is approved, 

funding will initially be provided for 

only the first year of the program. If an 

application is selected for initial 

funding, the NWS has no obligation to 

provide additional funding in 

connection with that award in 

subsequent years. Funding for each 

subsequent year of a multi-year proposal 

is at the discretion of the NWS. It will 

be contingent upon satisfactory progress 

in relation to the stated goals of the 

proposal to address specific science 

needs and priorities of the NWS and the 

availability of funds. Applications must 

include a scope of work and a budget for 

the entire award period. Each funding 

period must be discrete and clearly 

distinguished from any other funding 

period. 

The funding instrument for 

extramural awards will be a cooperative 

agreement since one or more NOAA/

NWS components—forecast offices, 

National Centers for Environmental 

Prediction (NCEP) service centers, or 

regional headquarters—will be 

substantially involved in 

implementation of the project. Examples 

of substantial involvement may include, 

but are not limited to, proposals for 

collaboration between NOAA scientists 

and a recipient scientist and/or 

contemplation by NOAA of detailing 

Federal personnel to work on proposed 

projects. Funding for non-U.S. 

institutions and contractual 

arrangements for services and products 

for delivery to NOAA are not available 

under this announcement. A matching 

share is not required by this program. 

Program Objectives 

The long term objective of the CSTAR 

Program is to improve the overall 

forecast and warning capabilities of the 

operational hydrometeorological 

community by addressing the following 

national science priorities through 

collaborative efforts between the NWS 

and academic institutions: Quantitative 

precipitation estimation (QPE) and 

forecasting (QPF), including 

precipitation type and probabilistic 

QPF; Flash flood and probabilistic river 

prediction; Prediction of seasonal-tointerannual and decadal climate 

variability, and the impacts of these

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 743

variabilities on extreme weather events; 

Prediction of tropical cyclones near 

landfall, including track, intensity, and 

associated precipitation, and hazardous 

weather; Prediction of marine 

conditions, including fog, winds, coastal 

ocean, and open-ocean waves; The 

effect of topography and other surface 

forcing on local weather regimes; 

Locally hazardous weather, especially 

severe convection, winter weather, and 

phenomena that affect aviation; and 

Conditions conducive for the rapid 

development of wildfires and the 

dispersion of smoke and other airquality hazards. 

Individual NWS Regions and NCEP 

service centers have a subset of these 

science priorities due to differences in 

factors such as topography, weather 

regimes, and mission. 

Program Priorities 

NOAA will give sole attention to 

individual proposals addressing the 

identified science priorities from NWS 

Regions and NCEP service centers as 

listed below. Proposals must clearly 

specify which primary science priorities 

are being addressed. 

Since a goal of this call for proposals 

is to foster long-term collaborative 

interactions between a university and 

NWS operational offices/NCEP service 

centers, a proposal must be submitted 

by at least two principal investigators 

(PIs) from the same college or 

university. Proposals submitted jointly 

by two or more separate colleges or 

universities are not allowed. At least 

two of the PIs within this program must 

be full, assistant, or associate college or 

university professors with substantial 

documented involvement in the 

proposal. Proposals should clearly state 

the role of each PI in the project. 

Except for researchers who are 

associate, assistant, or full professors at 

the Naval Postgraduate School or other 

federally funded educational 

institutions, Federal Government 

employees are not allowed to be listed 

as PIs, although collaboration between 

the academic community and NOAA 

within the project is strongly 

encouraged. 

A proposal must contain at least two 

distinct subtasks addressing one or more 

of the science priorities listed by a NWS 

Region or NCEP service center. PIs must 

clearly address the science and 

technology transfer process contained 

within the proposal. This includes their 

interactions with operational NWS 

units, including weather offices, River 

Forecast Centers, NCEP service centers, 

and regional offices, with the specific 

goal of improving operational services.

The names, affiliations, and phone 

numbers of relevant NWS regional/

NCEP focal points are provided. 

Prospective applicants should 

communicate with these focal points for 

information on priorities within 

regional science priorities. Focal points 

cannot assist in the conceptual design 

and specific elements to be included in 

a proposal. Applicants should send 

completed proposals to the NOAA/NWS 

program office identified earlier rather 

than to individual focal points. 

NWS Eastern Region Science Priorities 

NWS Eastern Region has identified 

the following science priorities to be 

addressed by proposals: 

The roles of unique geomorphic 

influences on weather problems such as 

the type, amount, and intensity of 

precipitation associated with the 

complex terrain of the Appalachian 

Mountains, Atlantic Seaboard, and the 

Great Lakes. The interaction of these 

terrain features with large scale weather 

systems such as winter storms, 

hurricanes, and closed lows. 

The development of more accurate, 

region-specific conceptual models for 

tornado, hail, high wind (both 

convective and synoptic), flash flood, 

and localized heavy snow events. 

Detailed investigation of the roles of 

mesoscale phenomenon such as gravity 

waves, thermal and moisture 

boundaries, and localized instabilities 

during these events. Improved 

understanding of low-topped severe 

convection and associated tornado 

development. 

Cloud physics and associated 

microphysical processes and their role 

in determining precipitation type and 

snowfall efficiency. 

The relationship of land-falling 

tropical storms and hurricanes to severe 

weather and heavy precipitation 

resulting in flooding and flash flooding. 

The processes of snow melt and river 

ice formation and break-up and their 

roles in widespread river flooding. The 

development of high resolution surface 

analysis systems and the application of 

these analyses to verification of gridded 

hydrometeorological forecasts. 

The development of improved 

methodologies for forecasting the onset 

and dissipation of fog and low ceilings 

for different geographical locations 

across the eastern United States. 

The processes that lead to high winds, 

waves, and flooding near the Atlantic 

Coast, Chesapeake Bay, and Great Lakes. 

Innovative approaches to formulate, 

produce, display and deliver highresolution forecasts and products, an 

evolving priority of the user community 

throughout the heavily populated 

eastern United States. Develop 

innovative methodologies to 

communicate forecast uncertainties to a 

wide variety of users.

FOR FURTHER INFORMATION CONTACT:

Kenneth Johnson, NOAA/NWS/Eastern 

Region Scientific Services Division, 

631–244–0136, or on the Internet at 

Kenneth.Johnson@noaa.gov.

NWS Southern Region Science Priorities 

The NWS Southern Region science 

priorities to be addressed by proposals 

are as follows: 

Development of improved techniques 

for the prediction of freezing and frozen 

precipitation events in the NWS 

Southern Region, including timing, 

areal extent, intensity and amount. 

Development of diurnal lightning and 

cloud climatologies stratified by 

weather regime to better predict the 

onset, spatial coverage, and duration of 

precipitation, especially under weak 

synoptic forcing. 

Development of improved techniques 

to forecast and monitor heavy-rain 

events. 

Development of relationships between 

land falling tropical cyclones and 

associated severe weather, including 

heavy precipitation, flooding and flash 

flooding, throughout the southern 

United States.

Development of improved techniques 

to observe and forecast winds and 

waves in the coastal environment. 

Improved understanding of the 

influences of the complex terrain of the 

southern Appalachians, the Texas Hill 

Country, the Mexican Plateau, and the 

Gulf Coast on weather problems such as 

type, amount, duration and intensity of 

precipitation and resultant flash 

flooding. 

Development of optimal strategies for 

using mesoscale models to accurately 

predict the effects of topography and 

other surface forcing on local weather. 

Improved methodologies to better 

predict the development and duration of 

stratus, fog and other conditions which 

result in instrument flight rule (IFR) 

flying conditions in the NWS Southern 

Region. 

Development of methodologies for use 

of Doppler weather radar (WSR–88D) 

and multi-sensor technology to detect/

identify storm features leading to, and/

or associated with, the development of 

weak (F0 and F1) tornadoes and 

waterspouts which are characteristic of 

tropical and semi-tropical 

environments. 

Development of methodologies for the 

use of Doppler weather radar and other 

multi-sensor technology to detect 

precursor conditions and enhance 

forecast capabilities for improved 

744 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

warnings associated with microburst 

producing thunderstorms. 

Development of optimal WSR–88D 

scan strategies and adaptable parameter 

settings for accurately estimating heavy 

precipitation amounts. 

Development of techniques to 

improve hydrologic modeling and 

prediction for Southern U.S. rivers and 

streams, including calibration of 

models, improved distributive modeling 

techniques, and improved soil moisture 

accounting. Development of 

methodologies to better predict the type, 

duration, and severity of arctic 

outbreaks that result in damaging 

freezes affecting the NWS Southern 

Region. 

Development of improved methods 

for utilizing data analysis, manipulation 

and communication technology 

(Internet, Web sites, Geographic 

Information Systems, etc.) for preparing 

and disseminating high resolution 

hydrological and meteorological 

forecasts and products which best serve 

the changing needs of varied users.

FOR FURTHER INFORMATION CONTACT: Dan 

Smith, NOAA/NWS/Southern Region 

Scientific Services Division, 817–978–

2671, or on the Internet at 

dan.smith@noaa.gov. 

NWS Central Region Science Priorities 

The NWS Central Region science 

priorities to be addressed by proposals 

are as follows: 

Improve hazardous weather warnings 

for different geographical locations in 

Central Region, including the Central 

Plains, Northern Plains, Ozark Plateau, 

mid and upper Mississippi Valley, 

lower Ohio Valley and Great Lakes 

regions by: 

Developing more accurate, regionspecific conceptual models for tornado, 

hail, high wind, heavy precipitation, 

and elevated nocturnal convection 

events. 

Developing more accurate, regionspecific diagnostic strategies/

methodologies to interrogate remotely 

sensed data (radar, satellite, etc.) and 

numerical weather guidance with 

emphasis on weaker and shorter lived 

severe thunderstorm and tornado 

events. 

Improve Central Region winter 

weather precipitation forecasts by: 

Developing a climatology of winter 

precipitation events including, but not 

limited to, heavy snow, sleet or freezing 

rain stratified by Central Region County 

Warning Forecast Areas and relating it 

to public products and services. Linking 

cloud physics and associated microphysical processes, precipitation 

efficiency, water vapor distribution, and 

transport of winter stratiform and/or 

convective clouds to improved 

methodologies for estimating or 

forecasting winter precipitation 

amounts. 

Improve the accuracy (probability of 

detection) and average forecast lead 

time for winter storm warnings by better 

understanding the development, 

intensification, and sudden acceleration 

northeastward of strong mid-west storm 

systems following Rocky Mountain leeside cyclogenesis. 

Improve aviation forecast products 

and services by: 

Developing a climatology of ceiling, 

visibility, and low-level wind shear for 

Central Region county warning forecast 

areas. 

Developing better methodologies to 

forecast the onset and dissipation of fog 

and low ceilings for different 

geographical locations in the Central 

Region. 

Improve the utility and utilization of 

numerical guidance in the forecast 

process by developing more efficient 

and effective methodologies to display, 

review, and interrogate numerical 

model output in an operational 

environment. 

Improve the quality of weather 

services to the public through the 

development of new and innovative 

forecast methodologies and products.

FOR FURTHER INFORMATION CONTACT:

Peter Browning, NOAA/NWS/Central 

Region Scientific Services Division, 

816–891–7734 ext. 300, or on the 

Internet at Peter.Browning@noaa.gov.

NWS Western Region Science Priorities 

The NWS Western Region science 

needs to be addressed by proposals are 

as follows:

Improve operational precipitation and 

hydrological forecasts in complex 

terrain across a wide range of western 

U.S. meteorological regimes. In the 

West, water is a critical and closely 

managed resource. 

Improve wintertime forecasts of snow 

in complex terrain. 

Improve acquisition and use of nonNWS observational networks, such as 

mesonets. 

Improve analysis through better 

assimilation systems that produce more 

realistic analysis in complex terrain. 

Improve numerical model 

performance in western complex 

terrain. 

Research, develop and help 

implement statistical methods to 

objectively produce bias-corrected 

model grids (e.g. from grids, not just 

points) to improve gridded forecasts. 

Research, develop and help 

implement methods to objectively 

downscale forecast and ensemble grids 

to the resolution necessary (2–5km) to 

help improve IFPS forecasts and 

forecast methodology. 

Improve hydrological modeling, 

through use of emerging techniques, 

such as distributed hydrologic 

modeling, of rain/snow melt processes 

in complex terrain. 

Develop conceptual models that better 

describe the effect of complex terrain on 

weather forecasts. 

Improve precipitation and flash 

flooding forecasts produced from high 

based convection with a deep dry sub 

cloud layer in the arid inter-mountain 

region. 

Improve forecast of significant 

precipitation events that produce 

flooding and affect marine forecasts 

along the west coast. 

Improve forecast of the onset of the 

monsoon season and flash flooding in 

the desert Southwest. 

Improve snow and wind forecast 

associated with arctic front intrusion 

into complex terrain in the northern 

plains. 

Improve fire-weather forecasts and 

smoke dispersion in the western United 

States. 

Improve forecasters ability to produce 

forecasts of temperature, humidity, and 

winds in complex terrain. 

Improve forecast and warnings of 

severe weather unique to the western 

United States through the better use of 

observational systems and conceptual 

models. 

Improve the performance of coastal 

and mountain-top WSR–88D radars on a 

variety of NWS Western Region weather 

regimes, such as high based intermountain convection and low topped 

storms along the west coast.

FOR FURTHER INFORMATION CONTACT:

Andy Edman, NOAA/NWS/Western 

Region Scientific Services Division, 

801–524–5131, or on the Internet at 

andy.edman@noaa.gov.

NWS Alaska Region Science Priorities 

The science priorities of the NWS 

Alaska Region to be addressed by 

proposals are as follows (in order of 

importance): 

Determine the geomorphic influences 

on type, amount, duration, and intensity 

of snow associated with complex terrain 

to improve forecasts for the Anchorage, 

Alaska, area, where over 50 percent of 

the state population resides. 

Develop better methodologies to 

forecast winds over the marine inland 

waters of southeast Alaska. 

Methodologies can include numerical 

forecasts from mesoscale models. 

Improve methodologies to forecast fog 

in the Alaska coastal communities 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 745

located along the coast of the Gulf of 

Alaska. 

Improve the winter season WSR–88Dbased rain and snow QPEs. All six sites 

are influenced by complex topography. 

Improve the accuracy (probability of 

detection) and lead time for airborne 

volcanic ash detection and tracking by 

better understanding source conditions 

and early developments of the ash 

cloud. Improvements must include 

remote sensing techniques. 

Innovative approaches to remote 

sensing that result in the formulation 

and production of high resolution 

hydrometeorological forecasts of river 

and localized flash flooding produced 

by synoptic and mesoscale weather 

systems interacting with complex 

terrain in south-central Alaska. 

Emphasis should be placed on the Kenai 

River watershed.

FOR FURTHER INFORMATION CONTACT: Gary 

Hufford, NOAA/NWS/Alaska Region 

Environmental and Scientific Services 

Division, 907–271–3886, or on the 

Internet at gary.hufford@noaa.gov.

NWS Pacific Region Science Priorities 

The science priorities of the NWS 

Pacific Region to be addressed in 

proposals are as follows: 

Optimize the utility of new and 

existing observing systems, with 

emphasis on satellites and their use in 

providing precipitation estimations. 

Develop, optimize, and utilize local 

high-resolution modeling capabilities 

aimed at providing operational real-time 

guidance as well as a tool for locally 

conducted research. 

Conduct Pacific Basin synoptic 

climatological studies, with emphasis 

on flash-flood and high-wind events.

FOR FURTHER INFORMATION CONTACT: Ken 

Waters, NOAA/NWS/Pacific Region 

Regional Scientist, 808–532–6413, or on 

the Internet at Ken.Waters@noaa.gov.

NWS National Centers for 

Environmental Prediction Science 

Priorities

NCEP service centers have established 

the following science priorities which 

may be addressed in proposals: 

Aviation Weather Center 

Develop numerical and subjective 

techniques to improve the accuracy of 

convective forecasts in the 2–6 hour 

time scale. 

Improve the treatment of drizzle-size 

droplets in clouds that lead to aircraft 

icing through improved 

parameterization and/or explicit micro 

physics techniques that are both 

economical and support cloud 

initialization using existing 

observational data sets, including the 

Automated Surface Observing System, 

radar, and satellite data. 

Enhance understanding of the 

triggering mechanisms associated with 

different families of clear-air turbulence 

events, including gravity waves 

emanating from convective systems, 

gravity waves induced by jet streaks, 

cross-mountain flow, critical boundarylayer flow regimes, etc. 

Improve the observations, data 

assimilation, and modeling of the 

moisture profile in the boundary layer 

to better forecast the occurrence of fog 

and low cloud ceilings. 

Climate Prediction Center 

Develop dynamically and ensemblebased techniques to improve the 

prediction of weekly, monthly, and 

seasonal precipitation skill, including 

regional climate prediction systems. 

Improve global and domestic forecasts 

of seasonal climate variability through 

better understanding and modeling of 

the coupled atmosphere/ocean system 

and the effect of variations on that 

coupling to ensemble prediction. 

Hydrometeorological Prediction Center 

(HPC) 

Conduct research addressing the 

broad geographical and seasonal ranges 

of problems associated with QPF, from 

initiation, duration, movement, to 

precipitation type. This includes the 

spectrum from drizzle to heavy rain and 

from lake-effect snow to synoptic-scale 

snowfall. 

Develop new model verification 

techniques to enhance current methods 

of objectively assessing which models 

will perform best. The techniques 

should apply for all time ranges used by 

HPC, from less than 6 hours to 7 days. 

Develop techniques for using output 

from model ensembles in forecast 

operations to improve the accuracy of 

both deterministic and probabilistic 

forecasts and to add information 

concerning uncertainty. 

Develop techniques to modify gridded 

numerical guidance to produce gridded 

forecast products, which are made 

horizontally, vertically, and temporally 

consistent using sound meteorological 

theory.

Marine Prediction Center (MPC) 

Develop a robust marine verification 

system that utilizes the various 

observations from both in-situ and 

remote sources. Parameters to be 

verified include, but are not limited to: 

Wind speed and direction; sea-state 

(height, period, direction); visibility; 

weather; and icing conditions. 

Improve forecasting techniques for 

warnings and forecasts of hazardous 

marine conditions through the use of 

additional data sources (especially insitu), as well as improved use of all 

marine data sources in numerical 

weather prediction and model data 

assimilation techniques. 

Storm Prediction Center 

Develop mesoscale or storm-scale 

numerical prediction models, ensemble 

approaches, and verification techniques 

to improve forecasts of the location, 

timing, intensity, and mode of deep 

moist convection. 

Develop three-dimensional mesoscale 

analysis techniques, observing systems, 

expert systems or statistical guidance, 

robust conceptual models, and scientific 

understanding to improve forecasts of 

the location, timing, intensity, and 

mode of deep moist convection. 

Tropical Prediction Center (TPC) 

Improve hurricane intensity 

forecasting using either empirical or 

dynamical forecasting techniques, 

especially those that combine 

atmospheric/oceanic interactions and 

which can be incorporated with existing 

TPC intensity guidance. 

Improve forecasts for the size of 

tropical cyclones. A goal of this effort 

will be the generation of probabilistic 

guidance by MPC and TPC on 34, 50 kt, 

and 64 kt forecast wind radii for marine 

and emergency management interests. 

Develop an ‘‘all-platform’’ surface 

wind display and analysis over marine 

areas for use by TPC and MPC that 

would cover the larger scale tropical 

storm environment and that would 

combine QuikScat, SSM/I, ERS, lowlevel cloud-drift winds, and 

conventional observations, including 

buoys and ships, etc.

Note: In all instances, projects are 

encouraged which not only address the 

priorities of individual NCEP service centers 

but also address aspects of the NCEP/

Environmental Modeling Center’s goals for 

improving data assimilation and numerical 

modeling of the atmosphere, oceans, and 

Earth’s surface.

FOR FURTHER INFORMATION CONTACT:

Ralph Petersen, NOAA/NWS/National 

Centers for Environmental Prediction, 

301–763–8000 ext. 7200, or on the 

Internet at ralph.petersen@noaa.gov.

Eligibility 

All accredited U.S. colleges and 

universities, including federally funded 

educational institutions such as the 

Naval Postgraduate School, are eligible 

for funding under this announcement. 

The restriction is needed because the 

results of the collaboration are to be 

incorporated in academic processes 

which ensure academic 

746 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

multidisciplinary peer review as well as 

Federal review of scientific validity for 

use in operations. Funding for non-U.S. 

institutions is not available under this 

announcement. 

Evaluation Criteria 

The evaluation criteria and weighting 

of the criteria are as follows: 

(1) Operational Applicability (30 

percent): What is the likelihood of the 

proposed science activities to improve 

operational hydrometeorological 

services? Are proposed research 

activities transferrable to forecast 

operations in a reasonable time frame? 

(2) Scientific Merit (25 percent): What 

is the intrinsic scientific value and 

maturity of the subject and the study 

proposed as they relate to the specific 

science priorities?

(3) Technology Transfer and 

Methodology (25 percent): What is the 

degree of collaboration with multiple 

operational units throughout the 

project? What is the level of planning by 

researchers to integrate results into 

operations successfully and efficiently? 

Were focused scientific objectives and 

strategies, including data management 

considerations, project milestones, and 

timeliness, used? 

(4) Capability of researchers (10 

percent): Do PIs clearly document past 

scientific collaborations with 

operational meteorologists? Have past 

interactions been successful? Are 

researchers likely to maintain effective 

and consistent interactions with 

operational forecasts throughout the 

course of the proposed research 

program? Have researchers 

demonstrated the ability to conduct 

successful research? 

(5) Cost Effectiveness (10 percent): Do 

researchers demonstrate the ability to 

leverage other resources? Is there a high 

ratio of operationally useful results 

versus proposed costs? 

Selection Procedures 

All proposals will be evaluated and 

individually ranked in accordance with 

the assigned weights of the above 

evaluation criteria by an independent 

peer panel review. Three to seven NWS 

experts representing NWS Regions and 

Centers may be used in this process. 

Their recommendations and evaluations 

will be considered, along with the 

program policy factors discussed below, 

by the selecting official who will select 

the proposals to be funded and 

determine the amount of funds available 

for each proposal. Unsatisfactory 

performance by a recipient under prior 

Federal awards may result in an 

application not being considered for 

funding. Because the selecting official 

will take into account program policy 

factors, awards may not necessarily be 

made to the highest scored proposals. 

Program Policy Factors 

The selecting official may take into 

account the need to spread awards 

geographically and among priorities and 

universities. While a university may 

submit more than one application, the 

selecting official may limit the awards 

to only one per university. Finally, the 

amount of funds available and whether 

an application substantially duplicates 

other projects currently approved for 

funding or funded by NOAA or other 

Federal agencies may be considered by 

the selecting official. 

Proposal Submission 

Proposals must adhere to the five 

provisions under ‘‘Proposals’’ and the 

seven requirements under ‘‘Required 

Elements’’ by the deadline of February 

21, 2003. Failure to follow these 

restrictions will result in proposals 

being returned to the submitter without 

review. In addition, applicants should 

note those provisions under ‘‘Other 

Requirements/Information’’ that must be 

complied with before an award can be 

made. 

Proposals 

(1) Proposals submitted to the NOAA 

NWS CSTAR Program must include the 

original and two unbound copies of the 

proposal. 

(2) Investigators are not required to 

submit more than three copies of the 

proposal. Investigators are encouraged 

to submit sufficient proposal copies for 

the full review process if they wish all 

reviewers to receive color, unusually 

sized (not 8.5 x 11), or otherwise 

unusual materials submitted as part of 

the proposal. Only an original version of 

the federally required forms and two 

copies are needed. 

(3) Proposals should be no more than 

30 pages (numbered) in length, 

including budget, investigators vitae, 

and all appendices and should be 

limited to funding requests for 1- to 3-

year duration. Appended information 

should be counted within the 30-page 

total. Federally mandated forms are not 

included within the page count. 

(4) Proposals should be sent to the 

NWS (see ADDRESSES). 

(5) Facsimile transmissions and 

electronic mail submission of full 

proposals will not be accepted. 

Required Elements

All proposals should include the 

following elements: 

(1) Signed title page. The title page 

should be signed by the PIs and the 

institutional representative and should 

clearly indicate which project area is 

being addressed. The PIs and 

institutional representative should be 

identified by full name, title, 

organization, telephone number, and 

address. The total amount of Federal 

funds being requested should be listed 

for each budget period. 

(2) Abstract: An abstract must be 

included and should contain an 

introduction of the problem, rationale, 

and a brief summary of work to be 

completed. The abstract should appear 

on a separate page, headed with the 

proposal title, institution’s investigators, 

total proposed cost, and budget period. 

(3) Results from prior research. The 

results of related projects supported by 

NOAA and other agencies should be 

described, including their relation to the 

currently proposed work. Reference to 

each prior research award should 

include the title, agency, award number, 

PIs, period of award, and total award. 

The section should be a brief summary 

and should not exceed two pages total. 

(4) Project description. The proposed 

project must be completely described, 

including identification of the problem; 

scientific objectives; proposed 

methodology; relevance to the priorities 

of the NWS Region or NCEP service 

center; operational applicability; 

scientific merit; proposed technology 

transfer; past collaborations with 

operational hydrometeorologists; cost 

effectiveness of research; and the 

program priorities listed above. Benefits 

of the proposed project to the general 

public and the scientific community 

should be discussed. A year-by-year 

summary of proposed work must be 

included. The project description, 

including references but excluding 

figures and other visual materials, must 

not exceed 15 pages of text. In general, 

proposals from three or more 

investigators may include a project 

description containing up to 15 pages of 

overall project description plus up to 5 

additional pages for individual project 

descriptions. 

(5) Budget. Applicants must submit a 

Standard Form 424 ‘‘Application for 

Federal Assistance,’’ including a 

detailed budget using the Standard 

Form 424a, ‘‘Budget Information—NonConstruction Programs.’’ The form is 

included in the standard NOAA 

application kit. The proposal must 

include total and annual budgets 

corresponding with the descriptions 

provided in the project description. 

Additional text to justify expenses 

should be included as necessary. 

(6) Vitae. Abbreviated curriculum 

vitae are sought with each proposal. 

Reference lists should be limited to all 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 747

publications in the last 3 years with up 

to five other relevant papers. 

(7) Current and pending support. For 

each investigator, submit a list which 

includes project title, supporting agency 

with grant number, investigator months, 

dollar value, and duration. Requested 

values should be listed for pending 

support. 

Other Requirements/Information 

(1) Applicants may obtain a standard 

NOAA application kit from the NOAA 

Office of Grants Management. Primary 

applicant Certification: All primary 

applicants must submit a completed 

Form CD–511, ‘‘Certification Regarding 

Debarment, Suspension, and Other 

Responsibility Matters; Drug-Free 

Workplace Requirements and 

Lobbying.’’

(2) Federal Policies and Procedures 

Applicable to this announcement: 

A. Environmental Impact. Applicants 

whose proposed projects may have an 

environmental impact should furnish 

sufficient information to assist proposal 

reviewers in assessing the potential 

environmental consequences of 

supporting the project. 

B. The Department of Commerce PreAward Notification of Requirements for 

Grants and Cooperative Agreements 

contained in the Federal Register notice 

of October 1, 2001 (66 FR 49917), as 

amended by the Federal Register notice 

published October 30, 2002 (67 FR 

66109), is applicable to this solicitation. 

(3) There is no guarantee that 

sufficient funds will be available to 

make awards for all qualified projects. 

The exact amount of funds that may be 

awarded will be determined in preaward negotiations between the 

applicant and the NOAA 

representatives. Publication of this 

notice does not oblige NOAA to award 

any specific project or to obligate any 

available funds. If one incurs costs prior 

to receiving an award agreement signed 

by an authorized NOAA official, one 

would do so solely at one’s own risk of 

these costs not being included under the 

award. 

(4) Disposition of Unsuccessful 

Applications. Those proposals that are 

not ultimately selected for funding will 

be destroyed. 

(5) If an application is selected for 

funding, the DOC has no obligation to 

provide any additional future funding in 

connection with the award. Renewal of 

an award to increase funding or extend 

the period of performance is at the total 

discretion of the DOC.

In accordance with Federal statutes 

and regulations, no person on grounds 

of race, color, age, sex, national origin, 

or disability shall be excluded from 

participation in, denied benefits of, or 

subjected to discrimination under any 

program or activity receiving financial 

assistance from the NOAA/NWS. The 

NOAA/NWS does not have a direct 

telephonic device for the deaf (TDD 

capabilities can be reached through the 

State of Maryland-supplied TDD contact 

number, 800–735–2258, between the 

hours of 8 a.m.–4:30 p.m. 

Paperwork Reduction Act 

This notice contains collection-ofinformation requirements subject to the 

Paperwork Reduction Act. The use of 

Standard Forms 424 and 424A has been 

approved by OMB under the respective 

control numbers 0348–0043 and 0348–

0044. 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 

Office of Management and Budget 

control number. 

Executive Orders 12866 and 12372 

This notice has been determined to be 

not significant for purposes of E.O. 

12866. Applications under this program 

are not subject to E.O. 12372, 

‘‘Intergovernmental Review of Federal 

Programs.’’

Administrative Procedure Act/

Regulatory Flexibility Act 

Notice and comment are not required 

under 5 U.S.C. 553(a)(2), or any other 

law, for rules relating to public 

property, loans, grants, benefits or 

contracts. Because notice and comment 

are not required, a Regulatory Flexibility 

Analysis, 5 U.S.C. 601 et seq., is not 

required and has not been prepared for 

this notice.

Dated: December 31, 2002. 

John E. Jones, Jr., 

Deputy Assistant Administrator for Weather 

Services.

[FR Doc. 03–224 Filed 1–6–03; 8:45 am] 

BILLING CODE 3510–KE–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

[I.D. 010203B]

Mid-Atlantic Fishery Management 

Council (MAFMC); Meetings

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Notice of public meeting.

SUMMARY: The Mid-Atlantic Fishery 

Management Council (Council) and its 

Ecosystems Committee, Squid, Mackerel 

and Butterfish Committee, Law 

Enforcement Committee, Highly 

Migratory Species Ad-Hoc Committee, 

and Executive Committee will hold a 

public meeting.

DATES: Tuesday, January 21, 2003, 

through Thursday, January 23, 2003. On 

Tuesday, January 21, 2003, the 

Ecosystems Committee will meet from 

noon until 2 p.m. The Squid, Mackerel 

and Butterfish Committee will meet 

from 2–5 p.m. On Wednesday, January 

22, 2003, the Law Enforcement 

Committee will meet from 8:30–9:30 

a.m. Council will meet from 9:30 a.m. 

until 4:00 p.m. On Thursday, January 

23, 2003, the Highly Migratory Species 

Ad-Hoc Committee will meet from 8–9 

a.m. The Executive Committee will meet 

from 9–10 a.m. Council convenes from 

10 a.m. until 4 p.m.

ADDRESSES: This meeting will be held at 

the Trump Plaza Hotel, Mississippi 

Avenue and the Boardwalk, Atlantic 

City, NJ, telephone 609–441–2708.

Council address: Mid-Atlantic Fishery 

Management Council, 300 S. New 

Street, Dover, DE 19904, telephone 302–

674–2331.

FOR FURTHER INFORMATION CONTACT:

Daniel T. Furlong, Executive Director, 

Mid-Atlantic Fishery Management 

Council; telephone: 302–674–2331, ext. 

19.

SUPPLEMENTARY INFORMATION: Agenda 

items for the Council’s committees and 

the Council itself are: the Ecosystems 

Committee will discuss Council’s role in 

identifying and addressing NMFS 

habitat/bycatch requirements; the 

Squid, Mackerel and Butterfish 

Committee will discuss and finalize 

measures to be included in Amendment 

9 (gear impacts on EFH, Illex fishery 

moratorium, multiple year specification 

process, bycatch/discard reduction in 

Loligo fishery, and ‘‘other’’); the Law 

Enforcement Committee will review the 

Fisheries Achievement Award Program 

and discuss background investigation 

needs/limitations regarding Council 

members and advisors; Council will 

conduct a scoping meeting for 

Amendment 1 to the Dogfish Fishery 

Management Plan (consider, among 

other management measures, the 

following items for inclusion in 

Amendment 1: define a rebuilding 

biomass target for Bmsy, establish 

rebuilding timeframe consistent with 

Section 304(e) of the Magnuson-Stevens 

Act, address bycatch/discard issues, 

address different allocation processes, 

748 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

‘‘other’’); approve Amendment 13 to the 

Surfclam and Ocean Quahog Fishery 

Management Plan for Secretarial 

submission; the Highly Migratory 

Species Ad-Hoc Committee will discuss 

establishment of a permanent sub-quota 

allocation of bluefin tuna for North 

Carolina during December 1 through 

January 31 time period; Council will 

receive and discuss organizational and 

committee reports including the New 

England Council’s report regarding 

possible actions on herring, groundfish, 

monkfish, red crab, scallops, skates, and 

whiting; and, act on any continuing 

and/or new business.

Although non-emergency issues not 

contained in this agenda may come 

before the Council for discussion, these 

issues may not be the subject of formal 

Council action during this meeting. 

Council action will be restricted to those 

issues specifically listed in this notice 

and any issues arising after publication 

of this notice that require emergency 

action under section 305(c) of the 

Magnuson-Stevens Act, provided the 

public has been notified of the Council’s 

intent to take final actions to address 

such emergencies.

Special Accommodations

This meeting is physically accessible 

to people with disabilities. Requests for 

sign language interpretation or other 

auxiliary aids should be directed to 

Joanna Davis at least 5 days prior to the 

meeting date.

Dated: January 2, 2003. 

Richard W. Surdi,

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service.

[FR Doc. 03–276 Filed 1–6–03; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration 

[030102001–3001–01] 

United States Climate Change Science 

Program

AGENCY: National Oceanic and 

Atmospheric Administration (NOAA).

ACTION: Notice of availability and 

request for public comment. 

SUMMARY: The United States Climate 

Change Science Program (CCSP) is 

announcing the availability of a draft 

document ‘‘Strategic Plan for the 

Climate Change Science Program.’’ The 

complete draft strategic plan was posted 

on the CCSP web site at http://

www.climatescience.gov for public 

comment on November 11, 2002. The 

CCSP is seeking public comment in 

order to receive feedback from the 

widest range of interested parties. This 

draft document is being issued for 

comment only and is not intended for 

interim use. The CCSP will review 

public comments received on the draft 

document. In response to those 

comments, suggested changes will be 

incorporated, where appropriate, and a 

final document will be issued for use. 

In your review, we ask you to provide 

a perspective on the content, 

implications, and challenges outlined in 

the plan as well as suggestions for any 

alternate approach you wish to have 

considered, and the types of climate and 

global change information required by 

policy makers and resource managers. 

We also ask that you comment on any 

inconsistencies within or across 

chapters, and omissions of important 

topics. For any shortcomings that you 

note in the draft, please propose specific 

remedies. 

In your comments, please consider 

the following issues: (1) Overview on 

the content, implications, and 

challenges outlined in the plan; (2) areas 

of agreement and disagreement, as 

appropriate; (3) suggestions for 

alternative approaches, if appropriate; 

(4) inconsistencies within or across 

chapters; (5) omissions of important 

topics; (6) specific remedies for 

identified shortcomings of the draft 

plan; (7) type of climate and global 

change information required by 

representative groups; (8) other 

comments not covered above. Please do 

not comment on grammar, spelling, or 

punctuation. Professional copy editing 

will correct deficiencies in these areas 

for the final draft. 

Please follow these instructions for 

preparing and submitting your review. 

Using the format guidance described 

below will facilitate our processing of 

reviewer comments and assure that your 

comments are appropriately considered. 

Please provide background information 

about yourself on the first page of your 

comments: your name(s), 

organization(s), area(s) of expertise, 

mailing address(es), telephone and fax 

numbers, and email address(es). 

Overview comments on the chapter 

should follow your background 

information and should be numbered. 

Comments that are specific to particular 

pages, paragraphs or lines of the chapter 

should follow your overview comments 

and should identify the page and line 

numbers to which they apply. 

Comments that refer to a table or figure 

should identify the table or figure 

number. In the case of tables, please also 

identify the row and column to which 

the comment refers. Order your 

comments sequentially by page and line 

number. At the end of each comment, 

please insert your name and affiliation. 

An example of the format is provided on 

the CCSP web site at: http://

www.climatescience.gov/Library/

stratplan2003/comments.htm.

DATES: Comments on this draft 

document should be submitted by 

January 18, 2003. Comments received 

after that date will be considered to the 

extent practicable. All comments 

submitted will be posted on the CCSP 

web site for public review.

ADDRESSES: The Strategic Plan for the 

Climate Change Science Program is 

available on the CCSP web site at: http:/

/www.climatescience.gov/Library/

stratplan2003/. A free single copy of the 

Plan will be available to interested 

parties until the supply is exhausted. 

Such copies may be requested by 

writing to the U.S. Climate Change 

Science Program, Suite 250, 1717 

Pennsylvania Ave., NW., Washington, 

DC 20006 or submitting e-mail to 

information@climatescience.gov.

All comments should be sent 

electronically to

comments@climatescience.gov or to Ms. 

Sandy MacCracken, U.S. Climate 

Change Science Program, Suite 250, 

1717 Pennsylvania Ave., NW., 

Washington, DC 20006.

FOR FURTHER INFORMATION CONTACT: Ms. 

Sandy MacCracken, U.S. Climate 

Change Science Program, Suite 250, 

1717 Pennsylvania Ave., NW., 

Washington, DC 20006. (Phone: 202–

223–6262, Fax: 202–223–3065, e-mail: 

smaccrac@usgcrp.gov); or visit the CCSP 

Web site at http://

www.climatescience.gov.

SUPPLEMENTARY INFORMATION: Scientists 

recognized the existence of a natural 

‘‘greenhouse effect’’ and the possibility 

of human-induced changes in the 

Earth’s climate and environment as 

early as the 19th century and, over time, 

this possibility has become widely 

accepted. In the last decades of the 20th 

century, public debate about the 

contribution of human activities to 

observed climate change and potential 

future changes in climate, and about 

courses of action to manage risks to 

humans and the environment, has been 

active and frequently contentious. These 

debates cover a range of both science 

and policy issues, including the extent 

to which global temperatures have in 

fact changes; whether most of the 

observed overall change in temperature 

of the last 50 years is attributable to 

human activities (principally the 

burning of biomass and fossil fuels and 

changes in land cover); how much 

climate might change in the future; and 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 749

whether proposed response strategies, 

such as reductions in emissions or 

efforts to enhance natural carbon 

sequestration processes, would produce 

economic or other effects more 

detrimental than the effects of climate 

change itself. 

Science-based information is required 

to inform public debate on the wide 

range of climate and global change 

issues necessary for effective public 

policy and stewardship of natural 

resources. Developing the needed 

information will require addressing a 

wide-ranging set of fundamental science 

questions, significantly improving 

observations and data management, and 

implementing highly credible and 

transparent mechanism for conveying 

research results in ways that are useful 

for decisionmakers and the public. 

1. The Issues for Science and Society 

Environmental systems on Earth are 

changing constantly. The climate system 

is highly variable, with conditions 

varying significantly over the span of 

seasons, years, decades, and longer 

timescales. Fluctuations in the amount 

of energy emitted by the Sun, slight 

deviations in the Earth’s orbit, volcanic 

injections of gases and particles into the 

atmosphere, and natural variations in 

ocean temperatures and currents, all 

cause variability and changes in climate 

conditions.

Against the backdrop of these natural 

forces, humans have become agents of 

environmental change, at least on 

timescales of decades to centuries, even 

as living standards for billions of people 

have improved tremendously. Emission 

of greenhouse gases and pollutants and 

extensive changes in the land surface 

(both tied to widespread development of 

modern living standards) have potential 

consequences for global and regional 

climate. They also influence air quality, 

the Earth’s protective shield of 

stratospheric ozone, the distribution and 

abundance of water resources and many 

plant and animal species, and the ability 

of ecosystems to provide life-supporting 

goods and services. 

The challenge is that discerning 

whether human activities are causing 

observed climatic changes and impacts 

requires detecting a small, decade-bydecade trend against the backdrop of 

wide temperature changes that occur on 

shorter timescales (seasons to years). A 

sound base of observations, as well as a 

solid understanding of how the Earth’s 

environmental systems respond to 

different natural and human forces, is 

essential to detecting and attributing 

climate change to any specific cause. 

Currently, measurements taken at the 

Earth’s surface, in various layers of the 

atmosphere, in boreholes, in the oceans, 

and in other environmental systems 

such as the cryosphere (frozen regions) 

indicate that the climate is warming. 

Further, in Climate Change Science: An 

Analysis of Some Key Questions (NRC, 

2001a), the National Research Council 

(NRC), the operational arm of the 

National Academy of Sciences (NAS), 

concluded that ‘‘the changes observed 

over the last several decades are likely 

mostly due to human activities, but we 

cannot rule out that some significant 

part of these changes is also a reflection 

of natural variability.’’ The NRC report 

elaborates on this point: 

Because of the large and still 

uncertain level of natural variability 

inherent in the climate record and the 

uncertainties in the time histories of the 

various forcing agents (and particularly 

aerosols), a causal linkage between the 

buildup of greenhouse gases in the 

atmosphere and the observed climate 

changes during the 20th century cannot 

be unequivocally established. The fact 

that the magnitude of the observed 

warming is large in comparison to 

natural variability as simulated in 

climate models is suggestive of such a 

linkage, but it does not constitute proof 

of one because the model simulations 

could be deficient in natural variability 

on the decadal to century time scale. 

The warming that has been estimated to 

have occurred in response to the 

buildup of greenhouse gases in the 

atmosphere is somewhat greater than 

the observed warming. At least some of 

this excess warming has been offset by 

the cooling effect of sulfate aerosols, and 

in any case one should not necessarily 

expect an exact correspondence because 

of the presence of natural variability. 

Apparently contradicting the 

evidence of warming are inconsistencies 

in the observational record, particularly 

related to the differences between 

temperature trends measured at the 

surface and measurements taken from 

satellite observations of the lower- to 

mid-troposphere, which show no 

significant warming trends in the last 

two decades of the 20th century. 

Reconciling these differences and 

improving observational capabilities 

remains an important challenge with 

significant potential implications for 

decisionmaking.

But the issues extend beyond those of 

‘‘detection and attribution’’ to projecting 

how climate and other related 

environmental conditions could change 

in the future. Confidence in such 

projections is tied to knowledge of basic 

climate processes and natural 

variability, the ability of climate models 

to represent accurately these processes, 

and the ability of models to represent 

interactions of natural processes and 

any human-induced changes in the 

climate system. 

Improving the capability to project 

future climate conditions would be of 

significant economic and social value. 

Consider, for example, the benefits of 

improved forecasts of the onset of the El 

Nin ̃ o-Southern Oscillation (ENSO). 

ENSO is a large-scale climate oscillation 

in the equatorial Pacific Ocean that 

changes phase every few years. Its 

effects reverberate through the global 

climate system to affect precipitation 

and temperature in many regions of the 

world. Armed with a basic 

understanding of the processes 

involved, scientists intensified 

systematic observations and improved 

their models, and by the late 1990s 

could successfully forecast some 

conditions months in advance. While 

much additional work is required to 

improve ENSO forecasts, some climatic 

features can now be accurately 

predicted, with significant societal 

benefits. In the United States, 

decisionmakers are able to better 

estimate energy requirements, prepare 

for storms, manage water resources, 

anticipate where damage recovery 

efforts will be required, and foresee 

other potential impacts. In countries in 

South America, Africa, and other 

regions of the world, resource planners 

and managers are applying model 

results to develop agricultural plans, 

anticipate potential food surpluses and 

shortages, and prepare for other 

impacts. Such as planning has already 

reduced suffering and saved crops that 

would have otherwise been lost to 

drought and other ENSO effects. 

Improving the ability to project longterm trends in climate and related 

conditions is important to 

understanding the effects of different 

types and amounts of natural and 

human forcing, such as that due to 

different levels of greenhouse gas and 

aerosol emissions. Therefore, 

anticipating how possible future forcing 

could affect the climate requires 

development of complex computer 

models that incorporate the many 

features of the climate system and their 

interactions. Such models have been 

under construction for decades, and 

require ongoing observations and 

research into basic processes to fuel 

their continued improvement. Already, 

large-scale features of climate can be 

simulated, but many significant 

uncertainties remain to be addressed. 

Current models project significantly 

different increases in the global average 

surface temperature, from 

approximately 1 °C during the 21st 

century to more than 5 °C during the 

750 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

same period. This range of uncertainty 

incorporates both different estimates of 

climate sensitivity (the increase in 

temperature that results from a doubling 

of atmospheric concentrations of carbon 

dioxide (CO2)) and a wide range in 

projections of future greenhouse gas 

emissions. Reducing uncertainty in 

climate models will involve improving 

understanding of the role of clouds in 

different parts of the atmosphere; 

improving characterization of the 

circulation and interaction of energy in 

the atmosphere and oceans; improving 

understanding of the Earth’s natural 

carbon cycle; developing more detailed 

representations of features of the 

feedbacks from the land surface; 

incorporating additional types of forcing 

agents (e.g., ‘‘black carbon’’); and 

making progress on other fundamental 

challenges. Improved projections of 

climate changes on decadal or longer 

timescales are also important for many 

areas of planning and resource 

management where decisions made 

today have implications for decades to 

come. However, at this point, modeled 

projections of the future regional 

impacts of global climate change are 

often contradictory and are not 

sufficiently reliable tools for planning.

Even if the scientific community were 

to develop a ‘‘perfect’’ model of the 

global climate, it would not be possible 

to predict the level and rate of future 

changes in climate resulting from 

human activities. This is because these 

activities are not predetermined, but 

rather depend on human choices, which 

will, in turn, affect future climate 

conditions. The activities in questionenergy-related emissions of greenhouse 

gases; changing the surface of the land 

through clearing, conversion, and 

growth of different land covers; and the 

release of chemicals (both natural and 

human-made) that alter the productivity 

of the land and the oceans—all depend 

on a more basic set of human driving 

forces. These include population 

growth, living standards, characteristics 

of technology, and institutions (e.g., 

market conditions). While we cannot 

predict these conditions, we can use a 

different set of models to project the 

climatic and environmental 

consequences of different combinations 

of basic human driving forces. These 

models are useful for performing ‘‘If 

* * *, then * * *’’ scenario 

experiments that make it possible to 

begin to explore the potential 

implications of different technological 

and institutional conditions for future 

emissions, climate, and living 

standards. 

Improving our ability to project 

potential future variations and changes 

in climate and environmental 

conditions, subject to assumptions 

about natural and human forcing, could 

enable governments, businesses, and 

communities to reduce damages and 

seize opportunities to benefit from 

changing conditions by adapting 

infrastructure, activities, and plans. But 

realizing this potential will require 

sustained research and improved 

understanding of the interactions among 

climate, natural and managed 

environmental systems, and human 

activities. Scientific research needs to 

address a range of issues. 

The complexity of the Earth’s 

environmental systems, the unique 

conditions that they provide for life, and 

the state of these systems, including 

potential impacts on society, make 

climate and global change among the 

most important issues for our 

generation, and perhaps for generations 

to come. Given what is at stake, the 

Nation and the international community 

need the best possible science to inform 

public debate and decisionmaking in 

government and the private sector. 

2. The Research Program 

In February 2002, President George 

W. Bush announced the formation of a 

new management structure, the Climate 

Change Science Program (CCSP), to 

coordinate and provide direction to US 

research efforts in the areas of climate 

and global change. These efforts include 

the US Global Change Research Program 

(USGCRP), which began as a 

Presidential initiative in 1989 and was 

codified by Congress in the Global 

Change Research Act of 1990 (Pub. L. 

101–606), and the Climate Change 

Research Initiative (CCRI), which was 

announced by the President in June 

2001 to reduce significant uncertainties 

in climate science, improve global 

climate observing systems, and develop 

resources to support policy- and 

decisionmaking. Departments and 

agencies of the US Government that 

participate in the CCSP include the 

Departments of Agriculture, Commerce 

(the National Oceanic and Atmospheric 

Administration and the National 

Institute of Science and Technology), 

Defense, Energy, Health and Human 

Services, Interior (US Geological 

Survey), State, and Transportation; the 

Agency for International Development, 

the Environmental Protection Agency; 

the National Aeronautics and Space 

Administration; the National Science 

Foundation; and the Smithsonian 

Institution. The Office of Science and 

Technology Policy, the Council on 

Environmental Quality, and the Office 

of Management and Budget provide 

oversight on behalf of the Executive 

Office of the President. 

The CCRI provides a distinct focus to 

the overall research program. The focus 

is defined by a set of uncertainties about 

the global climate system that have been 

identified by policymakers and 

analyzed by the NRC (NRC, 2001a). 

Areas addressed in the NRC report 

include climate observations, aerosols, 

North American carbon sources and 

sinks, climate feedbacks and modeling, 

scenarios of human-induced forcing, 

and development of methodologies for 

risk management. The CCRI is described 

more completely in Part I of this draft 

strategic plan. 

The CCRI accelerates key areas of 

research that have been under 

development over the past thirteen 

years in the USGCRP. Over this period, 

the United States has made a large 

scientific investment—totaling more 

than $20 billion in the areas of climate 

change and global change research. 

With these resources, research programs 

supported by the agencies that 

participate in the USGCRP, in 

collaboration with several other national 

and international science programs, 

have mounted extensive space-based, 

surface, and in situ (at fixed sites) 

systems for global observations and 

monitoring of climate and ecosystems 

variables; have documented and 

characterized several important aspects 

of the sources, sinks, abundances, and 

lifetimes of greenhouse gases; have 

begun to address the complex issues 

surrounding various aerosol species that 

may significantly influence climate; 

have advanced our understanding of 

global water and carbon cycles (but with 

major remaining uncertainties); and 

have developed several approaches to 

computer modeling of global climate. 

The program has been a comprehensive, 

interagency collaboration that has 

facilitated scientific discovery. Program 

results have revealed and addressed 

many of the complex interactions of 

climate and other environmental 

systems, and have started to lay the 

foundation for understanding the 

relationships between natural variability 

and human activities that may 

contribute to change. US researchers 

have developed fundamental insights 

into how the climate and Earth system 

functions: Insights that are incorporated 

into advanced models throughout the 

world. The USGCRP is described more 

completely in Part II of this draft 

strategic plan. 

CCSP’s management will balance the 

CCRI’s near-term focus on climate 

change with the USGCRP’s breadth, 

creating a program that both accelerates 

development of answers to scientific 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 751

aspects of key climate policy issues and 

support advances in knowledge of the 

physical, biological, and chemical 

processes that influence the Earth 

system. This breadth is required to 

continue improving our understanding 

of the complex interrelationships among 

a broad set of systems that regulate 

climate and the global environment, as 

described in NRC’s seminal report, 

Global Environmental Change: Research 

Pathways for the Next Decade (NRC, 

1999a). The Pathways report lays out a 

framework of research questions that 

has significantly influenced the 

development of this strategic plan. 

Other reports issued by several boards, 

committees, and panels of the NRC have 

advised the USGCRP on specific aspects 

of climate and global change research 

and have influenced specific 

components of its research strategy. 

Indeed, the program has benefited from 

extensive interaction with the NRC, 

which is responsible for evaluating the 

USCGRP periodically for scientific 

merit. 

By investigating a targeted yet 

comprehensive set of questions, the 

CCSP seeks to focus attention on key 

climate changes issues that are 

important for public debate and 

decisionmaking, while maintaining 

sufficient breadth to facilitate the 

discovery of the unexpected. 

Establishing a careful balance between 

focus and breadth is essential if 

scientists are to develop knowledge of 

the interactions between natural 

variability and potential human impacts 

on the Earth system. This is an 

important management issue for the 

program and is a prerequisite for making 

as effective and productive use as 

possible of the significant resources 

allocated to this purpose. Establishing 

this balance, and a rational sequencing 

of research priorities and potentials, 

will require input from both 

decisionmaking and the science 

community. 

3. Guiding Principles for CCSP 

To fulfill its mission as the publicly 

sponsored research program addressing 

climate change issues for the United 

States, the CCSP must continuously 

adhere to three guiding principles that 

underpin the objectivity, integrity, and 

usefulness of its research and reporting: 

(i) The scientific analyses conducted 

by the CCSP are policy relevant but not 

policy driven. CCSP scientific analyses 

(including measurements, models, 

projections, and interpretations) are 

directed toward continually improving 

our understanding of climate, 

ecosystems, land use, technological 

changes, and their interactions. In 

developing projections of possible 

future conditions, the CCSP addresses 

questions in the form of ‘‘If * * *, then 

***’’ analyses. Policy and resource 

management decisions are the 

responsibility of government officials 

who must integrate many other 

considerations with available scientific 

information. 

(ii) CCSP analyses should specifically 

evaluate and report uncertainty. All of 

science, and all decisionmaking, 

involves uncertainty. Uncertainty need 

not be a basis for inaction; however, 

scientific uncertainty should be 

carefully described in CCSP reports as 

an aid to the public and decisionmakers.

(iii) CCSP analyses, measurements, 

projections and interpretations should 

meet two goals: Scientific credibility 

and lucid public communication. 

Scientific communications by the CCSP 

must maintain a high standard of 

methods, reporting, uncertainty 

analysis, and peer review. CCSP public 

reports must be carefully developed to 

provide objective and useful summaries 

of findings. 

4. The Research Strategy 

This draft strategic plan for the CCSP, 

incorporating both the USGCRP and the 

CCRI, is built around a carefully 

constructed set of questions and 

objectives for each of the major areas of 

the program. Primary research questions 

that focus on broad science issues are 

supported by more detailed questions 

and objectives that can be addressed in 

specific research initiatives and 

projects. For each major question 

addressed, the strategy includes a very 

brief description of the state of 

knowledge, subsidiary questions, 

descriptions of products and 

deliverables, information of activities 

and infrastructure needed to make 

progress, and the benefits or ‘‘payoffs’’

from research. For each major program 

area, linkages to important national and 

international research activities are also 

described. 

This plan should be considered a 

draft subject to substantial revision 

through public comment and 

independent review by the NAS. 

Part I of the plan describes the 

components of the CCRI as discussed 

above. These are organized into three 

broad programmatic areas: (1) Research 

focused on key climate change 

uncertainties; (2) Climate quality 

observations, monitoring, and data 

management; and (3) Resources for 

decision support. 

Part II of the plan describes major 

research questions about how the 

components of Earth’s environmental 

system function, how the system may 

change in response to human and 

natural forcing, and what the 

implications of these changes may be for 

a variety of human activities and natural 

environments and resources. For each 

major research question, a state of 

knowledge, illustrative research 

questions, research needs, and a list of 

products and payoffs are described. The 

specific topics addressed and their 

corresponding major research questions 

are: 

(1) Atmospheric Composition 

Question 1: What are the climaterelevant chemical and radiative 

properties, and spatial and temporal 

distributions, of human-caused and 

naturally occurring aerosols? 

Question 2: What is the current 

quantitative skill for simulating the 

atmospheric budgets of the growing 

suite of chemically active greenhouse 

gases and their implications for the 

Earth’s energy balance? 

Question 3: What are the effects of 

regional pollution on the global 

atmosphere and the effects of global 

climate and chemical change on 

regional air quality and atmospheric 

chemical inputs to ecosystems? 

Question 4: What are the time scale 

and other characteristics of the recovery 

of the stratospheric ozone layer in 

response to declining abundances of 

ozone-depleting gases and increasing 

abundances of greenhouse gases? 

Question 5: What ate the couplings 

among climate change, air pollution, 

and ozone layer depletion, which were 

once considered as separate issues? 

(2) Climate Variability and Change 

Question 1: What is the sensitivity of 

climate change projections to feedbacks 

in the climate system?

Question 2: To what extent can 

predictions of near-term climate 

fluctuations and projections of longterm climate change be improved, and 

what can be done to extend knowledge 

of the limits of predictability? 

Question 3: What is the likelihood of 

climate-induced changes that are 

significantly more abrupt than expected, 

such as the collapse of the thermohaline 

circulation or rapid melting of the major 

ice sheets? 

Question 4: Whether and how are the 

frequencies, intensities, and locations of 

extreme events, such as major droughts, 

floods, wildfires, heat waves, and 

hurricanes, altered by natural climate 

variations and human-induced climate 

changes? 

Question 5: How can interactions 

between producers and users of climate 

variability and change information be 

optimally structured to ensure essential 

752 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

information needed for formulating 

adaptive management strategies is 

identified and provided to 

decisionmakers and policymakers? 

(3) The Global Water Cycle 

Question 1: To what extent does the 

water cycle vary and change with time, 

and what are the internal mechanisms 

and external forcing factors, including 

human activities, responsible for 

variability and change? 

Question 2: How do feedback 

processes control the interactions 

between the global water cycle and 

other parts of the climate system (e.g.,

carbon cycle, energy), and how are these 

feedbacks changing over time? 

Question 3: What are the key 

uncertainties in seasonal to interannual 

predictions and long-term projections of 

water cycle variables, and what 

improvements are needed in global and 

regional models to reduce these 

uncertainties? 

Question 4: How do the water cycle 

and its variability affect the availability 

and quality of water supplied for human 

consumption, economic activity, 

agriculture, and natural ecosystems; and 

how do its interactions and variability 

affect sediment and nutrient transports, 

and the movement of toxic chemicals 

and other biogeochemical substances? 

Question 5: What are the 

consequences of global water cycle 

variability and change, at a range of 

temporal and spatial scales, for human 

societies and ecosystems? How can the 

results of global water cycle research be 

used to inform policy and water 

resource management decision 

processes? 

(4) Land Use and Land Cover Change 

Question 1: What are the primary 

drivers of land use and land cover 

change? 

Question 2: What tools or methods are 

needed to allow for better 

characterization of historic and current 

land use and land cover characteristics 

and dynamics? 

Question 3: What advances are 

required to allow for the projection of 

land use and land cover patterns and 

characteristics 10–50 years into the 

future? 

Question 4: How can projections be 

made of potential land cover and land 

use change over the next 10–50 years for 

use in models of impacts on the 

environment, social and economic 

systems, and human health? 

Question 5: What are the combined 

effects of climate and land use and land 

cover change and what are the potential 

feedbacks? 

(5) The Global Carbon Cycle 

Question 1: What are the magnitudes 

and distributions of North American 

carbon sources and sinks and what are 

the processes controlling their 

dynamics? 

Question 2: What are the magnitudes 

and distributions of ocean carbon 

sources and sinks on seasonal to 

centennial time scales, and which 

processes control their dynamics? 

Question 3: What are the magnitudes 

and distributions of global terrestrial, 

oceanic and atmospheric carbon sources 

and sinks and are they changing over 

time?

Question 4: What are the effects of 

past, present, and future land use 

change and resource management 

practices on carbon sources and sinks? 

Question 5: What will be the future 

atmospheric carbon dioxide and 

methane concentrations, and how will 

terrestrial and marine carbon sources 

and sinks change in the future? 

Question 6: How will the Earth 

system, and its different components, 

respond to various options being 

considered by society for managing 

carbon in the environment, and what 

scientific information is needed for 

evaluating these options? 

(6) Ecosystems 

Question 1: What are the most 

important linkages and feedbacks 

between ecosystems and global change 

(especially climate), and what are their 

quantitative relationships? 

Question 2: What are the potential 

consequences of global change for 

ecosystems and the delivery of their 

goods and services? 

Question 3: What are the options for 

sustaining and improving ecosystem 

goods and services valued by societies, 

given projected global changes? 

(7) Human Contributions and Responses 

to Environmental Change 

Question 1: What are the magnitudes, 

interrelationships, and significance of 

the primary human drivers of change in 

atmospheric composition and the 

climate system, changes in land use and 

land cover, and other changes in the 

global environment? 

Question 2: What are the current and 

potential future impacts of global 

environmental variability and change on 

human welfare, what factors influence 

the capacity of human societies to 

respond to change, and how can 

resilience be increased and vulnerability 

reduced? 

Question 3: How can the methods and 

capabilities for societal decisionmaking 

under conditions of complexity and 

uncertainty about global environmental 

variability and change be enhanced? 

Question 4: What are the potential 

human health effects of global 

environmental change, and what tools 

and climate and environmental 

information are needed to assess and 

address the cumulative risk to health 

from these effects? 

In addition, the final chapter in Part 

II is devoted to Grand challenges in 

modeling, observations, and information 

systems. Modeling, observations, and 

data and information dissemination are 

crosscutting, ‘‘enabling’’ activities and 

are tightly coupled to the seven research 

elements. These are needs that are 

particular to a given research area and 

must be planned and implemented in 

close association with the research that 

they support or draw on. However, they 

also need to be managed in a focused 

manner because they provide essential 

infrastructure that must serve multiple 

purposes within the CCSP-enabling 

fundamental research, as well as 

supporting assessment and 

decisionmaking—and because they 

depend on the distributed assets of 

CCSP agencies, some of which were 

originally developed to serve other 

needs. 

Part III of the plan describes 

communication, cooperation, and 

management issues that cut across all 

areas of the program. The specific topics 

addressed are: 

(1) Reporting and Outreach 

Inventory of Existing Agency Activities 

Reporting and Outreach for 

Decisionmakers 

Reporting and Outreach for the Public 

Outreach for K–12 Education 

(2) International Research and 

Cooperation 

Goals of International Cooperation in 

Climate Science 

The International Framework 

Bilateral Cooperation in Climate Change 

Research and Technology 

Multilateral International Cooperation 

in Research and Observational 

Programs 

Regional Cooperation In Global Change 

Research 

U.S. Plans And Objectives For Future 

International Cooperation 

(3) Program Management and Review 

Scientific Guidance 

Interagency Planning and 

Implementation 

Program Integration 

References

NRC, 1999a. Committee on Global Change 

Research, National Research Council, Global 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 753

Environmental Change: Research Pathways 

for the Next Decade (Washington, DC: 

National Academy Press). 

NRC, 2001a. National Research Council, 

Committee on the Science of Climate Change, 

Climate Change Science: An Analysis of 

Some Key Questions (Washington, DC: 

National Academy Press).

James R. Mahoney, 

Assistant Secretary for Oceans and 

Atmosphere and Director, U.S. Climate 

Change Science Program.

[FR Doc. 03–292 Filed 1–6–03; 8:45 am] 

BILLING CODE 3510–KB–M

DEPARTMENT OF DEFENSE

Office of the Secretary 

Proposed Collection; Comment 

Request

AGENCY: Department of Defense, Defense 

Security Service.

ACTION: Notice.

The Department of Defense has 

submitted to OMB for clearance the 

following proposal for collection of 

information under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35).

DATES: Consideration will be given to all 

comments received by February 20, 

2003.

ADDRESSES: Written comments and 

recommendations on the proposed 

information collection should be sent to 

the Defense Security Service.

FOR FURTHER INFORMATION CONTACT: To 

request more information on this 

proposed information collection or to 

obtain a copy of the proposal and 

associated collection instruments, 

please write to the above address, or call 

the Defense Security Service at (703) 

325–6182. 

Title, Associated Forms, and OMB 

Number: Defense Security Service FL 

14–a, November 1991, OMB No. 0704–

0206. 

Needs and Uses: The specific 

objective of a personnel security 

investigation is to elicit information 

concerning the loyalty, character, 

reliability of the individual being 

investigated to ascertain his or her 

suitability for a position of trust so that 

the DoD adjudicator may determine if it 

is clearly consistent with the interests of 

national security to grant the individual 

access to classified information. 

Adjudicative determinations are made 

in accordance with DoD 5200.2–R, 

‘‘DoD Personnel Security Program.’’

This regulation specifies medical 

information is to be obtained from 

records and physicians when there is an 

indication of a history of mental or 

nervous disorder, use or abuse of 

prescribed or illegal drugs, such as 

marijuana, narcotics or barbiturates; or 

abuse or excessive use of alcohol. 

Obtaining such medical information 

provides the adjudicator with a complex 

picture of the individual without it, the 

adjudicator may not be able to make a 

determination as to where or not the 

individual should be granted access to 

classified information. 

Affected Public: Individuals, business, 

or households. 

Annual Burden Respondents: 11,700. 

Number of Burden Hours: 7,020. 

Number of Respondents: 11,700. 

Responses per Respondent: 1. 

Average Burden Per Response: 0.6 

minutes. 

Frequency: On occasion.

SUPPLEMENTARY INFORMATION: 

Summary of Information Collection 

See ‘‘Needs and Uses’’.

Dated: December 31, 2002. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense.

[FR Doc. 03–252 Filed 1–6–03; 8:45 am] 

BILLING CODE 5001–01–M

DEPARTMENT OF DEFENSE

Office of the Secretary 

Proposed Collection; Comment 

Request

AGENCY: Department of Defense, Defense 

Security Service.

ACTION: Notice.

In compliance with Section 

350(c)(2)(A) of the Paperwork Reduction 

Act of 1995, the Office of the Assistant 

Secretary of Defense (C3I) announces 

the proposed reinstatement of a public 

information collection and seeks public 

comment on the provisions thereof, 

Comments are invited on: (a) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the functions of the agency, including 

whether the information shall have 

practical utility; (b) the accuracy of the 

agency’s estimate of the burden of the 

proposed information collection; (c) 

ways to enhance the quality, utility, 

clarity of the information to be 

collected; and (d) ways to minimize the 

burden of the information collection on 

respondents, including through the use 

of automated collection techniques or 

other forms of information technology.

DATES: Consideration will be given to all 

comments received by February 20, 

2003.

ADDRESSES: Written comments and 

recommendations on the proposed 

information collection should be sent to 

the Defense Security Service.

FOR FURTHER INFORMATION CONTACT: To 

request more information on this 

proposed information collection or to 

obtain a copy of the proposal and 

associated collection instruments, 

please write to the above address, or call 

the Defense Security Service at (703) 

325–6182. 

Title, Associated Forms, and OMB 

Number: Department of Defense request 

for Personnel Security Investigation; DD 

Form 1879; OMB Number 0704–0384. 

Needs and Uses: The information 

collection requirement is necessary to 

solicit minimal information and 

investigative information, which will 

become part of the security clearance 

investigations for access to classified 

information or employment in sensitive 

positions. 

Affected Public: Individuals, 

Business, or other for profit. 

Annual Burden Respondents: 32,164. 

Number of Burden Hours: 8.041. 

Number of Respondents: 32,164. 

Responses per Respondent: 1. 

Average Burden Per Response: 15 

minutes. 

Frequency: On occasion.

SUPPLEMENTARY INFORMATION:

Summary of Information Collection 

The DD Form 1879, ‘‘Department of 

Defense Request for Personnel Security 

Investigation,’’ is used to request Single 

Scope Background Investigations 

(SSBIs), National Agency Checks with 

Local Agency Checks and Credit Checks 

(NACLCs), National Agency Checks 

(NACs), SSBI Periodic Reinvestigations 

(PRs), or Special Investigative Inquiries 

(SIIs). It will accompany the Standard 

Form 85–P, ‘‘Questionnaire for Public 

Trust Position,’’ or Standard Form 86, 

‘‘Questionnaire for National security 

Position,’’ which will be used by the 

Defense Security Service for the purpose 

of conducting SSBIs, NACLCs, NACs, 

PRs, and SIIs. These provide the basis 

for determination of a person’s 

eligibility for access to classified 

information, appointment to a sensitive 

position, assignment to duties that 

require a automated collection of 

techniques or personnel security or 

trustworthiness determination 

continuing eligibility for retention of a 

security clearance, or assignment to 

other sensitive duties.

754 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Dated: December 31, 2002. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense.

[FR Doc. 03–253 Filed 1–6–03; 8:45 am] 

BILLING CODE 5001–08–M

DEPARTMENT OF DEFENSE

Office of the Secretary 

Submission for OMB Review; 

Comment Request

ACTION: Notice.

The Department of Defense has 

submitted to OMB for clearance, the 

following proposal for collection of 

information under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35).

DATES: Consideration will be given to all 

comments received by February 6, 2003. 

Title, Form Number, and OMB 

Number: DoD Active Duty/Reserve 

Forces Dental Examination; DD Form 

2813; OMB Number 0720–0022. 

Type of Request: Revision. 

Number of Respondents: 885,000. 

Responses Per Respondent: 1. 

Annual Responses: 885,000. 

Average Burden Per Response: 3 

minutes. 

Annual Burden Hours: 44,250. 

Needs and Uses: The information 

collection requirement is necessary to 

obtain and record the dental health 

status of members of the Armed Forces. 

This form enables civilian dentists to 

record the results of their examination 

findings and provide the information to 

the member’s military organization. The 

military organizations are required by 

Department of Defense policy to track 

the dental health status of their 

members. 

Affected Public: Business or other forprofit. 

Frequency: Annually. 

Respondent’s Obligation: Voluntary. 

OMB Desk Officer: Ms. Cristal 

Thomas. 

Written comments and 

recommendations on the proposed 

information collection should be sent to 

Ms. Thomas at the Office of 

Management and Budget, Desk Officer 

for DoD Health Affairs, Room 10235, 

New Executive Office Building, 

Washington, DC 20503. 

DOD Clearance Officer: Mr. Robert 

Cushing. 

Written requests for copies of the 

information collection proposal should 

be sent to Mr. Cushing, WHS/DIOR, 

1215 Jefferson Davis Highway, Suite 

1204, Arlington, VA 22202–4302.

Dated: December 30, 2002. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense.

[FR Doc. 03–254 Filed 1–6–03; 8:45 am] 

BILLING CODE 5001–08–M

DEPARTMENT OF DEFENSE

Office of the Secretary 

Submission for OMB Review; 

Comment Request

ACTION: Notice.

The Department of Defense has 

submitted to OMB for clearance, the 

following proposal for collection of 

information under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35).

DATES: Consideration will be given to all 

comments received by February 6, 2003. 

Title, Form Number, and OMB 

Number: U.S. Army ROTC 4-Year 

College Scholarship Application (For 

High School Students); CC Form 114–R; 

OMB Number 0702–0073. 

Type of Request: Reinstatement. 

Number of Respondents: 11,000. 

Responses Per Respondent: 1. 

Annual Responses: 11,000. 

Average Burden Per Response: 45 

minutes. 

Annual Burden Hours: 8,250. 

Needs and Uses: The applications are 

available to high school students. After 

the applications for U.S. Army ROTC 

College Scholarship Program are 

completed, they are submitted to 

Headquarters, Cadet Command for 

review, screening and selection of 

scholarship recipients. The application 

and information provide the basis for 

the scholarship award. 

Affected Public: Individuals or 

households. 

Frequency: Annually. 

Respondent’s Obligation: Voluntary. 

OMB Desk Officer: Ms. Jacqueline 

Zeiher. 

Written comments and 

recommendations on the proposed 

information collection should be sent to 

Ms. Zeiher at the Office of Management 

and Budget, Desk Officer for DoD Health 

Affairs, Room 10235, New Executive 

Office Building, Washington, DC 20503. 

DoD Clearance Officer: Mr. Robert 

Cushing. 

Written requests for copies for the 

information collection proposal should 

be sent to Mr. Cushing, WHS/DIOR, 

1215 Jefferson Davis Highway, Suite 

1204, Arlington, VA 22202–4302.

Dated: December 30, 2002. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense.

[FR Doc. 03–255 Filed 1–6–03; 8:45 am] 

BILLING CODE 5001–08–M

DEPARTMENT OF DEFENSE

Office of the Secretary 

Submission for OMB Review; 

Comment Request

ACTION: Notice.

The Department of Defense has 

submitted to OMB for clearance, the 

following proposal for collection of 

information under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35).

DATES: Consideration will be given to all 

comments received by February 6, 2003. 

Title, Form Number, and OMB 

Number: Pre-Candidate Procedures; 

USMA Forms 375, 723, 450, 21–12, 21–

27, and 381; OMB Number 0702–0060. 

Type of Request: Reinstatement. 

Number of Respondents: 66,200. 

Responses Per Respondent: 1. 

Annual Responses: 66,200. 

Average Burden per Response: 8 

minutes (average). 

Annual Burden Hours: 8,350. 

Needs and Uses: Candidates to the 

United States Military Academy 

(USMA) provide personal background 

information, which allows the USMA 

Admissions Committee to make 

subjective judgments on non-academic 

experiences. Data are also used by the 

Office of Institutional Research for 

correlation with success in graduation 

and military careers. The purpose of this 

activity is to obtain a group of 

applicants who eventually may be 

evaluated for admission to the USMA. 

Affected Public: Individuals or 

households. 

Frequency: On Ocassion. 

Respondent’s Obligation: Required to 

Obtain or Retain Benefits. 

OMB Desk Officer: Ms. Jacqueline 

Zeiher. 

Written comments and 

recommendations on the proposed 

information collection should be sent to 

Ms. Zeiher at the Office of Management 

and Budget, Desk Officer for DoD Health 

Affairs, Room 10235, New Executive 

Officer Building, Washington, DC 

20503. 

DOD Clearance Officer: Mr. Robert 

Cushing. 

Written requests for copies of the 

information collection proposal should 

be sent to Mr. Cushing, WHS/DIOR, 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 755

1215 Jefferson Davis Highway, Suite 

1204, Arlington, VA 22202–4302.

Dated: December 30, 2002. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense.

[FR Doc. 03–256 Filed 1–06–03; 8:45 am] 

BILLING CODE 5001–08–M

DEPARTMENT OF DEFENSE

Office of the Secretary 

Submission for OMB Review; 

Comment Request

ACTION: Notice.

The Department of Defense has 

submitted to OMB for clearance, the 

following proposal for collection of 

information under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35).

DATES: Consideration will be given to all 

comments received by February 6, 2003. 

Title, Form Number, and OMB 

Number: Appointment of Chaplains for 

the Military Services; DD Forms 2741 

and 2088; OMB Number 0704–0190. 

Type of Request: Extension. 

Number of Respondents: 797. 

Responses Per Respondent: 1. 

Annual Responses: 797. 

Average Burden Per Response: 46 

minutes (average). 

Annual Burden Hours: 614. 

Needs and Uses: Per 32 CFR part 65, 

in conjunction with 10 U.S.C. 532 and 

591, professionally qualified clergy 

persons shall be appointed as chaplains 

to provide for the free exercise of 

religion for all members of the Military 

Services, their dependents, and other 

authorized persons. Since World War I, 

the professional qualifications of clergy 

have been certified by the faith group of 

which these clergy are members. 

Religious organizations register with the 

Department of Defense for the purpose 

of endorsing clergy as fully qualified to 

serve as chaplains in the Armed Forces. 

No clergy person may become a 

chaplain without this endorsement, and 

the loss of this endorsement constitutes 

a loss of professional status. It also 

certifies the number of years of 

professional experience for each 

candidate. 

Affected Public: Not-for-profit 

institutions. 

Frequency: On occasion; annually. 

Respondent’s Obligation: Voluntary. 

OMB Desk Officer: Ms. Jacqueline 

Zeiher. 

Written comments and 

recommendations on the proposed 

information collection should be sent to 

Ms. Zeiher at the Office of Management 

and Budget, Desk Officer for DoD Health 

Affairs, Room 10235, New Executive 

Office Building, Washington, DC 20503. 

DoD Clearance Officer: Mr. Robert 

Cushing. 

Written requests for copies of the 

information collection proposal should 

be sent to Mr. Cushing, WHS/DIOR, 

1215 Jefferson Davis Highway, Suite 

1204, Arlington, VA 22202–4302.

Dated: December 30, 2002. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense.

[FR Doc. 03–257 Filed 1–6–03; 8:45 am] 

BILLING CODE 5001–08–M

DEPARTMENT OF ENERGY

Submission for Office of Management 

and Budget Review; Comment 

Requested

AGENCY: Department of Energy.

ACTION: Agency Information Collection 

Extension. 

SUMMARY: The Department of Energy 

(Department or DOE) has submitted an 

information collection package to the 

Office of Management and Budget 

(OMB) for extension under the 

Paperwork Reduction Act of 1995 (Pub. 

L. 104–13, 44 U.S.C. Chapter 35). The 

package covers the collection of 

information from state and alternative 

fuel provider fleets that are subject to 

the DOE’s Alternative Fuel 

Transportation Program (10 CFR Part 

490). The regulations contained in 

DOE’s Alternative Fuel Transportation 

Program have been promulgated in 

accordance with sections 501 and 507(o) 

of the Energy Policy Act of 1992, Pubic 

Law 102–486, 106 STAT. 2776; 42 

U.S.C. 13251, 13257(o). This 

information is used by the Department 

to determine the compliance statuses of 

covered fleets regulated under the 

Alternative Fuel Transportation 

Program. The information is critical to 

ensure the Government has sufficient 

information to ensure compliance of 

fleets with reporting and alternative fuel 

vehicle acquisition requirements.

DATES: Comments must be filed on or 

before February 6, 2003. If you 

anticipate that you will be submitting 

comments, but find it difficult to do so 

within the period of time allowed by 

this notice, you should advise the OMB 

Desk Officer of your intention to do so 

as soon as possible. The Desk Officer 

may be telephoned at (202) 395–3087. 

(Also, please notify the DOE contact 

listed in this notice.)

ADDRESSES: Address comments to DOE 

Desk Officer, Office of Management and 

Budget, Office of Information and 

Regulatory Affairs (OIRA), Room 10102, 

New Executive Office Building, 725 

17th Street, NW, Washington, DC 20503. 

(Comments should also be addressed to 

the Records Management Division, 

Office of the Chief Information Officer, 

at the address listed below.)

FOR FURTHER INFORMATION CONTACT:

Requests for additional information 

should be directed to Susan L. Frey, 

Director, Records Management Division, 

Office of Records and Business 

Management, IM–11/GTN Bldg. , U.S. 

Department of Energy, 1000 

Independence Ave SW., Washington, 

DC 20585–1290.

SUPPLEMENTARY INFORMATION: The 

package contains the following 

information: 

(1) Current OMB control number:

1910–5101. 

(2) Package Title: Annual Alternative 

Fuel Vehicle Acquisition Report for 

State Government and Alternative Fuel 

Provider Fleets. (Formerly entitled, 

‘‘Recordkeeping and Reporting 

Requirements of the Alternative Fuel 

Transportation Program DOE/OTT/101.) 

(3) Summary: A three-year extension 

is requested because the information is 

critical to ensure that the Government 

has sufficient information to ensure that 

covered fleets are complying with 

annual reporting and acquisition 

requirements under the Alternative Fuel 

Transportation Program. 

(4) Purpose: To collect fleet 

compliance reports to determine 

compliance status under the Program. 

(5) Type of Respondents: Covered 

state government and alternative fuel 

provider fleets as defined in 10 CFR part 

490. 

(6) Estimated number of responses:

310 annually. 

(7) Estimated total burden hours, 

including recordkeeping hours, required 

to provide the information is 5 hours.

Statutory Authority: 42 U.S.C. 13251, 

13257(o).

Dated: Issued in Washington, DC on 

December 30, 2002. 

Susan L. Frey, 

Director, Records Management Division, 

Office of Records and Business Management, 

Office of the Chief Information Officer.

[FR Doc. 03–260 Filed 1–6–03; 8:45 am] 

BILLING CODE 6450–01–Pu

DEPARTMENT OF ENERGY

Submission for OMB Review, 

Comment Request

AGENCY: Department of Energy.

756 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

ACTION: Agency information collection 

extensions. 

SUMMARY: The Department of Energy 

(DOE) is submitting an information 

collection package to the Office of 

Management and Budget (OMB) for 

renewal under the Paperwork Reduction 

Act of 1995. The package requests a 3-

year extension of its Security 

information collection (formerly known 

as Safeguards and Security), OMB 

Control Number 1910–1800. The 

package covers collections of 

information concerning the management 

and administration of DOE’s 

Government-owned/contractor-operated 

facilities (GOCO’s), offsite contractors, 

businesses and citizens. The 

information is used by Departmental 

management to exercise management 

oversight as to the implementation of 

applicable statutory and contractual 

requirements and obligations. The 

collection of this information is critical 

to ensure that the Government has 

sufficient information to judge the 

degree to which contractors meet 

contractual requirements; that public 

funds are being spent in the manner 

intended; and that fraud, waste, and 

abuse are immediately detected and 

eliminated. These collections provide 

information concerning the 

Department’s security program. Typical 

information collected in this package 

pertains to material control and 

accountability, security incident 

investigations, and protection of 

unclassified and classified documents.

DATES: Comments regarding this 

information collection package should 

be submitted to the OMB Desk no later 

than February 6, 2003. If you anticipate 

that you will be submitting comments, 

but find it difficult to do so within the 

period of time allowed by this notice, 

you should advise the OMB Desk 

Officer of your intention to do so as 

soon as possible. The Desk Officer may 

be telephoned at (202) 395–3087. (Also, 

please notify the DOE contact listed in 

this notice.)

ADDRESSES: Submit comments to DOE 

Desk Officer, Office Information and 

Regulatory Affairs (OIRA), Office of 

Management and Budget, Docket 

Library, Room 10102, 725 17th Street, 

NW., Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT:

Susan L. Frey, Director, Records 

Management Division, Office of Records 

and Business Management, Office of the 

Chief Information Officer, IM–11/GTN 

Bldg, U.S. Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585–1290, (301) 903–

3666, or E-mail susan.frey@hq.doe.gov.

(Also notify Brenda Scheel, Office of 

Security, SO–1.12/GTN Bldg, 

Department of Energy, 1000 

Independence Ave., SW., Washington, 

DC 20585–1290 (301) 903–4098.

SUPPLEMENTARY INFORMATION: The 

package contains: (1) Title: Security; (2) 

Current OMB control Number: 1910–

1800; (3) Type of Respondents: DOE 

management and operating contractors, 

offsite contractors, businesses, and 

citizens; (4) Estimated number of 

Responses: 5,886; (5) Estimated Total 

Burden Hours: 179,452; (6) Purpose:

This information is required by the 

Department to ensure that programmatic 

and administrative management 

requirements and resources concerning 

security are managed efficiently and 

effectively and to exercise management 

oversight of DOE contractors; (7) 

Number of Collections: This package 

contains 12 information and/or recordkeeping requirements.

Statutory Authority: Department of Energy 

Organization Act, Public Law 95–91, of 

August 4, 1977.

Issued in Washington, DC, on December 

30, 2002. 

Susan L. Frey, 

Director, Records Management Division, 

Office of Records and Business Management, 

Officer of the Chief Information Officer.

[FR Doc. 03–261 Filed 1–6–03; 8:45 am] 

BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY

Submission for OMB Review; 

Comment Request

AGENCY: Department of Energy.

ACTION: Agency information collection 

extension. 

SUMMARY: The Department of Energy 

(DOE) has submitted renewals for an 

additional three years for the 

information collection(s) listed at the 

end of this notice to the Office of 

Management and Budget (OMB) for 

review under sections 3507(h)(1) and 

3506(c) of the paperwork Reduction Act 

of 1995 (Pub. L. 104–13). 

Each entry contains the following 

information: (1) The collection number 

and title; (2) A summary of the 

collection of information, type of 

request (new, revision, extension, or 

reinstatement), response obligation 

(mandatory, voluntary, or required to 

obtain or retain benefits); (3) a 

description of the need and proposed 

use of the information, (4) a description 

of the likely respondents; and (5) an 

estimate of the total annual reporting 

burden (i.e., the estimated number of 

likely respondents times the proposed 

frequency of response per year times the 

average hours per response).

DATES: Comments must be filed on or 

before February 6, 2003. If you 

anticipate that you will be submitting 

comments but find it difficult to do so 

within the time allowed by this notice, 

you should advise the OMB DOE Desk 

Officer listed below of your intention to 

do so as soon as possible. The OMB 

Desk Officer may be telephoned at (202) 

395–7318. (Also, please notify the DOE 

contact listed below.)

ADDRESSES: Address comments to the 

DOE Desk Officer, Office of Information 

and Regulatory Affairs (OIRA), Office of 

Management and Budget, Room 10102 

725 17th Street, NW., Washington, DC 

20503. (Comments should also be 

addressed to the Records Management 

Division, Office of the Chief Information 

Officer, at the addressee below.)

SUPPLEMENTARY INFORMATION: The 

information collections submitted to 

OMB for review were: 

(1) Title: Personal Property; (2) 

Current OMB control Number: 1910–

1000. (3) Type of Respondents: DOE 

management and operating contractors 

and offsite contractors. (4) Estimated 

Number of Responses: 111; (5) 

Estimated Total Burden Hours: 1,880. 

(6) Purpose: This provides the 

Department with the information 

necessary for the management, control, 

reutilization, and disposal of 

government personal property. (7) 

Number of Collections: The package 

contains 3 information and/or 

recordkeeping requirements.

Statutory Authority: Sections 3507(h) (1) 

and 3506(c) of the Paperwork Reduction Act 

of 1995 (Pub. L. 104–13).

Issued in Washington, DC, on December 

30, 2002. 

Susan L. Frey, 

Director, Records Management Division, 

Office of Records and Business Management, 

Office of the Chief Information Officer.

[FR Doc. 03–262 Filed 1–6–03; 8:45 am] 

BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY

Energy Information Administration 

Policy Statement; Policy for Statistical 

Tables Based on Historical Electric 

Power Survey Information Collected 

Under a Pledge of Confidentiality

AGENCY: Energy Information 

Administration (EIA), Department of 

Energy (DOE).

ACTION: Policy statement.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 757

SUMMARY: The EIA has established a 

policy regarding the use of disclosure 

limitation methods for statistical tables 

derived from historical electric power 

survey information collected under a 

pledge of confidentiality. Disclosure 

limitation methods are used to ensure 

that sensitive table cell values are 

suppressed; i.e., withheld from public 

release. A sensitive data cell value is 

one that, if publicly disseminated, may 

be used to closely estimate confidential 

information that an individual survey 

respondent reported to EIA. 

Under this policy, EIA will use 

disclosure limitation methods on 

statistical tables based on aggregated 

historical electric power survey 

information collected under a pledge of 

confidentiality only if the information is 

currently collected under a pledge of 

confidentiality. (As of December 2002, 

electric power information collected 

under a pledge of confidentiality 

includes costs of fuels for unregulated 

plants, tested heat rates, fuel 

inventories, plant costs and expenses for 

unregulated plants, monthly electricity 

sales information reported for energyonly service, and latitude/longitude for 

electric power facilities.) For 

information not currently collected 

under a pledge of confidentiality, EIA 

will not use disclosure limitation 

methods for statistical tables derived 

from the historical electric power survey 

information previously collected under 

a pledge of confidentiality. 

This policy applies to any information 

collected in an EIA electric power 

survey under a pledge of confidentiality 

during a survey period at least three 

years prior to the date of its proposed 

release in a statistical table. The threeyear period includes the reporting year 

(the year for which information is 

currently being collected) and two prior 

years where information has been 

finalized. In accordance with applicable 

laws and regulations, EIA will continue 

to not publicly release survey forms 

collected under a pledge of 

confidentiality. 

This policy is based on the need to 

provide additional statistical tabulations 

that will improve and broaden the 

understanding of the United States 

electric power industry by releasing 

additional statistical tabulations. These 

tables may present information at the 

national, State, and/or regional levels in 

various EIA information products. 

(EIA’s electric power information is 

available on the web at http://

www.eia.doe.gov/.)

DATES: This policy becomes effective on 

January 7, 2003.

ADDRESSES: Requests for additional 

information or questions about this 

policy should be directed to Dean 

Fennell. He may be contacted by FAX 

(202–287–1934), e-mail 

(Dean.Fennell@eia.doe.gov), or 

telephone (202–287–1744). These 

contact methods are recommended to 

expedite contact. His mailing address is 

Energy Information Administration, EI–

53, U.S. Department of Energy, 1000 

Independence Ave. SW, Washington, 

DC 20585–0650.

FOR FURTHER INFORMATION CONTACT:

Requests should be directed to Mr. 

Fennell at the address listed above. 

EIA’s electric power information is 

available on the web at http://

www.eia.doe.gov/.

SUPPLEMENTARY INFORMATION:

I. Background 

II. Discussion of Comments 

III. Current Actions

I. Background 

The Federal Energy Administration 

Act of 1974 (Pub. L. 93–275, 15 U.S.C. 

761 et seq.) and the DOE Organization 

Act (Pub. L. 95–91, 42 U.S.C. 7101 et 

seq.) require the EIA to carry out a 

centralized, comprehensive, and unified 

energy information program. This 

program collects, evaluates, assembles, 

analyzes, and disseminates information 

on energy resource reserves, production, 

demand, technology, and related 

economic and statistical information. 

This information is used to assess the 

adequacy of energy resources to meet 

near and longer-term domestic 

demands. 

The EIA conducts surveys to collect 

information about the electric power 

industry from companies and 

organizations involved in the 

generation, transmission, distribution, 

and sales of electric power. This survey 

information is disseminated in a variety 

of information products and electronic 

data files used by government and 

private sector policymakers and 

analysts. 

On October 24, 2002, EIA issued a 

Federal Register notice (67 FR 65345) 

requesting public comments on a 

proposed policy regarding the use of 

disclosure limitation methods for 

statistical tables derived from historical 

electric power survey information 

collected under a pledge of 

confidentiality. A second notice was 

issued on November 4, 2002 (67 FR 

67253) to correct a publication mistake 

in the date for submission of comments. 

In the October 24 notice, EIA discussed 

the reasons for the proposed policy as 

well as reasons for proposing it. In 

addition to publishing the notice, EIA 

sent a copy of the notice to each of its 

over 6,000 electric power survey 

respondents. 

The proposed policy was based on the 

need to provide additional statistical 

tabulations that will improve and 

broaden the understanding of the 

electric power industry. These statistical 

tables will provide electric power 

information at national, State, and/or 

regional levels. (An example of this is 

publishing national level fuel 

consumption information in EIA’s 

Annual Energy Review, or publishing 

State or regional level information for 

fuel consumption, useful thermal 

output, or generation in reports such as 

EIA’s Electric Power Monthly or Natural 

Gas Annual.) 

II. Discussion of Comments 

In response to the Federal Register

notice and EIA’s mailing of the notice to 

its survey respondents, EIA received 19 

sets of comments. Most of the comments 

were from electric power companies 

and trade groups. 

Of the comments received, nine were 

in favor of a policy of not using 

disclosure limitation methods on 

statistical tables based on historical 

electric power survey information, nine 

objected to the proposal, and one 

commenter did not take a position. After 

analyzing the comments, EIA decided to 

propose using disclosure limitation 

methods on statistical tables based on 

historical electric power survey 

information collected under a pledge of 

confidentiality only if the survey 

information is currently collected under 

a pledge of confidentiality. If the 

historical survey information was 

collected under a pledge of 

confidentiality but is not currently 

collected under such a pledge, EIA will 

not use disclosure limitation methods 

on statistical tables based on the 

aggregated historical information.

The decision is based on the fact that 

for information not currently collected 

under a pledge of confidentiality, the 

public has access to the most recent 

information in individually-identifiable 

form. Therefore, the release of statistical 

tables not subjected to disclosure 

limitation methods for historical survey 

information previously collected under 

a pledge of confidentiality should not 

cause substantial competitive harm to 

the position of any survey respondent. 

Examples of information meeting this 

criteria include generation and fuel 

consumption information collected 

under a pledge of confidentiality prior 

to 1999 on the Form EIA–867, but the 

generation and fuel consumption 

information are currently collected with 

no pledge of confidentiality. 

758 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Following is a summary of the major 

supporting and opposing arguments 

received in response to EIA’s proposed 

policy. 

General Concerns—Arguments for 

Release of Aggregated Information 

Collected Under a Pledge of 

Confidentiality 

Nine responders to the October 24, 

2002, Federal Register notice generally 

supported EIA’s approach to not using 

disclosure limitation methods before 

disseminating information collected 

under a pledge of confidentiality at an 

aggregate level in statistical tables after 

a three-year period. They stated that the 

release of such information at least three 

years after collection and aggregated at 

the State, regional, or national level will 

adequately safeguard the competitive 

position of any survey respondent. If an 

affected survey respondent disagrees, 

the respondent has the option to request 

confidential treatment through the 

DOE’s Office of Hearings and Appeals or 

in court. Further, some stated that 

disseminating historically confidential 

information at the State level is 

especially important as States move into 

an era characterized by the need for 

portfolio management of power supply, 

demand, and related factors. Others 

believe that the release of aggregated 

information after a three-year period 

expands the historical information 

available and has the potential to benefit 

information users, researchers, and 

policymakers. 

Other persons argued that the 

industry has failed to document any 

specific harm that will arise from the 

release of EIA aggregated survey 

information despite the fact that 

competition has existed in the industry 

for several years. They also stated that 

much of the information is already 

available, that the statistical tables will 

not have any competitive impact by the 

time they are released by EIA, and that 

public policy goals depend on this 

information. 

Some supporters of the release of 

aggregated information after three years 

believe that both EIA’s enabling statute 

and the Freedom of Information Act 

(FOIA) mandate that EIA disseminates 

its information. They state that the FOIA 

contains nine exemptions from public 

disclosure, and only Exemption 4 

(which protects against release of 

confidential commercial or financial 

information), potentially relates to the 

type of information collected on EIA’s 

electric power surveys. In fact, one 

commenter stated that the purpose of 

FOIA is to promote disclosure, not to 

justify secrecy. 

Another commenter in favor of the 

release of historical information stated 

that with the movement toward a more 

competitive market, it should be clear to 

all that energy markets can function best 

in the presence of wide access to 

information. 

Also in support of the proposed 

policy, many commenters to previous 

EIA Federal Register notices published 

March 13, 2001 (Vol. 66, No. 49) who 

opposed the release of individuallyreported information believed that EIA 

could fulfill its statutory duties without 

disclosure of individual plant level 

information by disseminating the 

information in an aggregated form. In 

addition, several supported a delay in 

the disclosure of sensitive information 

to protect against competitive harm. 

General Concerns—Arguments Against 

Release of Aggregated Information 

Collected Under A Pledge of 

Confidentiality 

Nine responders to the October 24, 

2002, Federal Register notice opposed 

EIA’s proposal to release information 

collected under a pledge of 

confidentiality at an aggregate level after 

a three-year period. They believe that 

disclosure even at an aggregate level of 

competitively sensitive information will 

harm respondents, the electricity 

market, and the consumer. In particular, 

some believe their entities hold market 

share in certain States and regions. If the 

number of entities included in the 

aggregate is small, they believe that their 

information could be easily discerned. 

Others understood that the confidential 

information would remain proprietary 

even when disseminated at aggregate 

levels. They stated that EIA is changing 

its policy on confidentiality. 

Some had an issue with the three-year 

time period. Their concern is that much 

of the information provided in the 

responses to the EIA surveys would 

potentially change little over time. 

Thus, if the number of entities included 

in a particular aggregate is small, 

individually reported information could 

be discerned. If the information changes 

little over time, competitive harm could 

occur with respect to fuel purchase 

prices and plant operating costs. 

One commenter opposed the proposal 

to release aggregate information 

collected under a pledge of 

confidentiality after three years stating 

that the proposal is too broad and 

unfounded. The person also stated that 

the new proposal violates the 

expectations of companies that have 

submitted the information in reliance on 

confidentiality assurances. The person 

went on to say that the mere passage of 

time does not ensure that information 

treated as confidential because of 

commercial and security concerns no 

longer need to be treated as confidential. 

The commenter believes that the 

proposal is a generalization, which can 

not be made for all categories of 

information or for all facilities and 

companies. Also, companies have 

provided the information in reliance on 

EIA assurances, which should not now 

be withdrawn after the information has 

been submitted. 

EIA’s Response to Comments

EIA finds that the comments on the 

issue are thoughtful and reflect the 

nature of the tradeoff in ensuring 

information is available for monitoring 

and analyzing the electric power 

industry and markets while at the same 

time ensuring that information collected 

under a pledge of confidentiality in 

EIA’s electric power surveys is not 

released in statistical tables in such a 

way as to cause potential substantial 

competitive harm to the survey 

respondents. 

EIA’s final policy is to discontinue the 

use of disclosure limitation methods 

such as suppression and complimentary 

suppression for statistical tables derived 

from historical electric power survey 

information collected under a pledge of 

confidentiality only if the information is 

not currently collected under a pledge 

of confidentiality. This decision is based 

on the need to provide additional 

tabulations that will improve and 

broaden the understanding of the 

electric power industry by releasing 

more aggregated information (State, 

regional, or national level) while using 

disclosure limitation methods to ensure 

the confidentiality of information 

currently collected under a pledge of 

confidentiality. The potential disclosure 

of data that were confidential and older 

than three years will not have a major 

impact on the competitiveness of the 

respondents, as their current data are no 

longer confidential. 

III. Current Actions 

The EIA is establishing a policy 

regarding the use of disclosure 

limitation methods for information in 

statistical tables derived from historical 

electric power survey information 

collected under a pledge of 

confidentiality. (Disclosure limitation 

methods are used to ensure that 

sensitive table cell values are 

suppressed; i.e., withheld from public 

release.) Under this policy, disclosure 

limitation methods will be used on 

statistical tables based on aggregated 

historical electric power survey 

information collected under a pledge of 

confidentiality only if the information is 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 759

currently collected under a pledge of 

confidentiality. (As of December 2002, 

electric power survey information 

collected under a pledge of 

confidentiality includes costs of fuels 

for unregulated plants, tested heat rates, 

fuel inventories, plant costs and 

expenses for unregulated plants, 

monthly electricity sales information 

reported for energy-only service, and 

latitude/longitude for electric power 

facilities.) If the survey information is 

not currently collected under a pledge 

of confidentiality, EIA will not use 

disclosure limitation methods for 

statistical tables derived from the 

historical electric power survey 

information. 

This policy would apply to any 

information collected in an EIA electric 

power survey under a pledge of 

confidentiality during a survey period at 

least three years prior to the date of its 

proposed release in a statistical table. 

The three-year period includes the 

reporting year (the year for which 

information is currently being collected) 

and two prior years where information 

have been finalized. In accordance with 

applicable laws and regulations, EIA 

will not publicly release survey forms 

collected under a pledge of 

confidentiality.

Statutory Authority: Section 52 of the 

Federal Energy Administration Act (Pub. L. 

No. 93–275, 15 U.S.C. 790a).

Issued in Washington, DC, December 31, 

2002. 

Guy F. Caruso, 

Administrator, Energy Information 

Administration.

[FR Doc. 03–259 Filed 1–6–03; 8:45 am] 

BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP02–340–003] 

ANR Pipeline Company; Notice of 

Compliance Filing 

December 31, 2002. 

Take notice that on December 24, 

2002, ANR Pipeline Company (ANR) 

tendered for filing as part of its FERC 

Gas Tariff, Second Revised Volume No. 

1, the following tariff sheets, with an 

effective date of December 24, 2002:

First Revised Sheet No. 192 

First Revised Sheet No. 192 A 

First Revised Sheet No. 192B 

First Revised Sheet No. 192C

ANR states that the revised tariff 

sheets are being filed in compliance 

with the Commission’s November 26, 

2002 Order in the above-referenced 

docket in regards to MDQ reductions. 

ANR Pipeline Company, 101 FERC 

61,246 (2002). 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–239 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP99–301–065] 

ANR Pipeline Company; Notice of 

Negotiated Rate Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, ANR Pipeline Company (ANR) 

tendered for filing and approval 

Amendments to two Service 

Agreements between ANR and 

Wisconsin Public Service Corporation, 

which revise the MDQ under such 

Agreements. ANR requests that the 

Commission accept and approve the 

agreements to be effective January 1, 

2003. 

Any person desiring to be heard or to 

protest said filing should file a motion 

to intervene or a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Sections 

385.214 or 385.211 of the Commission’s 

Rules and Regulations. All such motions 

or protests must be filed in accordance 

with Section 154.210 of the 

Commission’s Regulations. Protests will 

be considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceedings. 

Any person wishing to become a party 

must file a motion to intervene. This 

filing is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

Assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. 

Intervention Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–251 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP96–200–091] 

CenterPoint Energy Gas Transmission 

Company; Notice of Negotiated Rates 

December 31, 2002. 

Take notice that on December 27, 

2002, CenterPoint Energy Gas 

Transmission Company (CEGT, formerly 

Reliant Energy Gas Transmission 

Company) tendered for filing as part of 

its FERC Gas Tariff, Fifth Revised 

Volume No. 1, First Revised Sheet No. 

651, to be effective January 1, 2003. 

CEGT states that the purpose of this 

filing is to describe the provisions of a 

revised negotiated rate transaction 

between CEGT and TPS Dell, L.L.C. 

Tariff sheets describing the original 

negotiated rate transaction (i.e., the 

transaction being amended by CEGT’s 

filing) were accepted by the 

Commission in a letter order dated 

September 27, 2002, in Docket No. 

RP96–200–085. 

760 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Any person desiring to be heard or to 

protest said filing should file a motion 

to intervene or a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Sections 

385.214 or 385.211 of the Commission’s 

Rules and Regulations. All such motions 

or protests must be filed in accordance 

with Section 154.210 of the 

Commission’s Regulations. Protests will 

be considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceedings. 

Any person wishing to become a party 

must file a motion to intervene. This 

filing is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

Assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. 

Intervention Date: January 8, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–250 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. ER03–346–000] 

Citizens Communications Company; 

Notice of Filing 

December 31, 2002. 

Take notice that on December 27, 

2002, Citizens Communications 

Company (Citizens) filed an Agreement 

with Vermont Electric Cooperative, Inc. 

(VEC) for Firm Sales Service, designated 

as Citizens’ Rate Schedule FERC No. 44. 

Citizens requests waiver of the 

Commission’s prior notice 

requirements, and an effective date of 

January 1, 2003 for the service 

agreement. 

Citizens states that copies of this 

filing were served on VEC and the 

Vermont Public Service Board. In 

addition, a copy of the rate schedule is 

available for inspection at the offices of 

Citizens’ Vermont Electric Division 

during regular business hours. 

Any person desiring to intervene or to 

protest this filing should file with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Rules 211 

and 214 of the Commission’s Rules of 

Practice and Procedure (18 CFR 385.211 

and 385.214). Protests will be 

considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceeding. 

Any person wishing to become a party 

must file a motion to intervene. All such 

motions or protests should be filed on 

or before the comment date, and, to the 

extent applicable, must be served on the 

applicant and on any other person 

designated on the official service list. 

This filing is available for review at the 

Commission or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov , using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866)208–3676, or for TTY, 

contact (202)502–8659. Protests and 

interventions may be filed electronically 

via the Internet in lieu of paper; see 18 

CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. The 

Commission strongly encourages 

electronic filings. 

Comment Date: January 17, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–230 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP01–350–010] 

Colorado Interstate Gas Company; 

Notice of Refund Report 

December 31, 2002. 

Take notice that on December 23, 

2002, Colorado Interstate Gas Company 

(CIG) tendered for filing its refund 

report in Docket No. RP01–350–000. 

CIG states that the filing and refunds 

were made to comply with the 

Commission’s order issued on August 5, 

2002. CIG states that the refunds were 

made on November 25, 2002. 

CIG states that the refund report 

summarizes jurisdictional 

transportation and gathering refund 

amounts for the period October 1, 2001 

through September 30, 2002 pursuant to 

Article 2.2 of CIG’s Stipulation and 

Agreement as approved in the 

Commission’s August 5, 2002 order. 

CIG states that copies of CIG’s filing 

are being mailed to all parties of record 

in this proceeding and interested states 

regulatory Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed on or before January 7, 2003. 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

Comments, protests and interventions 

may be filed electronically via the 

Internet in lieu of paper. For Assistance, 

please contact FERC Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–238 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–218–000] 

Colorado Interstate Gas Company; 

Notice of Tariff Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Colorado Interstate Gas Company 

(CIG) tendered for filing to its FERC Gas 

Tariff, First Revised Volume No. 1, 

Fourth Revised Sheet No. 271, to 

become effective February 1, 2003. 

CIG states that the tariff sheet is being 

filed to remove the five-year term 

matching cap from the right-of-firstVerDate Dec<13>2002 10:19 Jan 06, 2003 Jkt 200001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\07JAN1.SGM 07JAN1
Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 761

refusal provisions of CIG’s Tariff 

consistent with the Commission’s Order 

on Remand. 

Any person desiring to be heard or to 

protest said filing should file a motion 

to intervene or a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Sections 

385.214 or 385.211 of the Commission’s 

Rules and Regulations. All such motions 

or protests must be filed in accordance 

with Section 154.210 of the 

Commission’s Regulations. Protests will 

be considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceedings. 

Any person wishing to become a party 

must file a motion to intervene. This 

filing is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

Assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. 

Intervention Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–247 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP96–190–022] 

Colorado Interstate Gas Company; 

Notice of Compliance Filing 

December 31, 2002. 

Take notice that on December 27, 

2002, Colorado Interstate Gas Company 

(CIG) tendered for filing as part of its 

FERC Gas Tariff, First Revised Volume 

No. 1, the following tariff sheets, with 

an effective date of December 1, 2002:

Substitute Original Sheet No. 11O 

Substitute Original Sheet No. 11P 

Substitute Original Sheet No. 11R 

Substitute Original Sheet No. 11S

CIG states that these tariff sheets are 

being filed to comply with the 

Commission’s order issued November 

27, 2002 in this proceeding and to 

remove the Maximum Daily Quantity 

reduction provision applicable to these 

negotiated rate transactions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 8, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–249 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–219–000] 

Discovery Gas Transmission LLC; 

Notice of Tariff Filing 

December 31, 2002. 

Take notice that on December 26, 

2002, Discovery Gas Transmission LLC 

(Discovery) tendered for filing tendered 

for filing as part of its FERC Gas Tariff, 

Original Volume No. 1, the following 

revised tariff sheets, to be effective 

February 1, 2003:

Fourth Revised Sheet No. 20

Second Revised Sheet No. 114

Fourth Revised Sheet No. 151

Third Revised Sheet No. 152

First Revised Sheet No. 152A 

Fourth Revised Sheet No. 154

Fourth Revised Sheet No. 155

Third Revised Sheet No. 169

First Revised Sheet No. 169A 

First Revised Sheet No. 186

Discovery states that this filing is 

made in part for administrative 

purposes and in part as a housekeeping 

matter to clarify, update and clean up 

several items in Discovery’s tariff. 

Discovery further states that copies of 

the filing have been mailed to each of 

its customers, interested State 

Commissions and other interested 

persons. 

Any person desiring to be heard or to 

protest said filing should file a motion 

to intervene or a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Sections 

385.214 or 385.211 of the Commission’s 

Rules and Regulations. All such motions 

or protests must be filed in accordance 

with Section 154.210 of the 

Commission’s Regulations. Protests will 

be considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceedings. 

Any person wishing to become a party 

must file a motion to intervene. This 

filing is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

Assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. 

Intervention Date: January 7, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–248 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

762 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Project No. 184–065] 

El Dorado Irrigation District California; 

Notice of Public Meetings 

December 31, 2002. 

The Federal Energy Regulatory 

Commission (Commission) is reviewing 

the application for a new license for the 

El Dorado Project (FERC No. 184), filed 

on February 22, 2000. The El Dorado 

Project, licensed to the El Dorado 

Irrigation District (EID), is located on the 

South Fork American River, in El 

Dorado, Alpine, and Amador counties, 

California. The project occupies lands of 

the El Dorado National Forest. 

The EID, several state and federal 

agencies, and several non-governmental 

agencies are working collaboratively 

with a facilitator to resolve certain 

issues relevant to this proceeding. These 

meetings are a part of that collaborative 

process. Meetings will be held as 

follows: 

January 13 Recreation Workgroup—9 

am—4 pm; January 14 Geomorphology 

sub-workgroup—9 am—4 pm; January 

15 Plenary Meeting—9 am—4 pm; and 

January 16 Plenary Meeting—9 am—4 

pm. 

We invite the participation of all 

interested governmental agencies, nongovernmental organizations, and the 

general public in these meetings. 

All meetings will be held in the El 

Dorado Board of Directors Meeting 

Room, located at EID Headquarters, 

2890 Mosquito Road, Placerville, 

California. 

For further information, please 

contact Elizabeth Molloy at (202) 502–

8771 or John Mudre at (202) 502–8902.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–232 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–214–000] 

Kinder Morgan Interstate Gas 

Transmission LLC Docket No. RP03–

214–000; Notice of Tariff Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Kinder Morgan Interstate Gas 

Transmission LLC (KMIGT) tendered for 

filing as part of its FERC Gas Tariff, 

Fourth Revised Volume No. 1–B, Third 

Revised Sheet No. 37, to be effective 

January 23, 2003. 

KMIGT states that the purpose of this 

filing is to revise Section 18.5 of 

KMIGT’s General Terms and Conditions 

(GT&C) in order to eliminate the fiveyear term matching cap concerning the 

exercise of the right of first refusal in 

compliance with the Commission Order 

on Remand issued October 31, 2002. 

KMIGT states that a copy of this filing 

has been served upon all of its 

customers and affected state 

commissions. 

Any person desiring to be heard or to 

protest said filing should file a motion 

to intervene or a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Sections 

385.214 or 385.211 of the Commission’s 

Rules and Regulations. All such motions 

or protests must be filed in accordance 

with Section 154.210 of the 

Commission’s Regulations. Protests will 

be considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceedings. 

Any person wishing to become a party 

must file a motion to intervene. This 

filing is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

Assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. 

Intervention Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–244 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP00–404–007] 

Northern Natural Gas Company; Notice 

of Compliance Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Northern Natural Gas Company 

(Northern), tendered for filing as part of 

its FERC Gas Tariff, Fifth Revised 

Volume No. 1 the following tariff sheets 

in compliance with the Commission’s 

order issued on November 21, 2002, in 

Docket No. RP00–404, et al. (Order):

Seventh Revised Sheet No. 1 

Ninth Revised Sheet No. 2 

61 Revised Sheet No. 53 

Fourth Revised Sheet No. 55 

Third Revised Sheet No. 111 

Fifth Revised Sheet No. 115 

Third Revised Sheet No. 125 

Third Revised Sheet No. 133 

Fifth Revised Sheet No. 142 

Original Sheet No. 142A 

Original Sheet No. 142B 

Original Sheet No. 142C 

Original Sheet No. 142D 

Original Sheet No. 142E 

Fifth Revised Sheet No. 146 

Fourth Revised Sheet No. 154 

Tenth Revised Sheet No. 201 

Eighth Revised Sheet No. 220 

Sixth Revised Sheet No. 226 

Sixth Revised Sheet No. 252 

Third Revised Sheet No. 256 

Seventh Revised Sheet No. 258 

Seventh Revised Sheet No. 259 

Second Revised Sheet No. 260A 

Fourth Revised Sheet No. 263C 

Fourth Revised Sheet No. 263D 

Fourth Revised Sheet No. 266 

Fourth Revised Sheet No. 269 

Second Revised Sheet No. 270 

Second Revised Sheet No. 292A 

Third Revised Sheet No. 304 

Second Revised Sheet No. 305 

Original Sheet No. 305A 

Original Sheet No. 305B 

Original Sheet No. 306 

Sheet No. 307 

Second Revised Sheet No. 432 

Sheet No. 433 

Second Revised Sheet No. 443 

First Revised Sheet No. 444 

Sheet No. 445

Northern states that this filing is 

Northern’s compliance filing under 

Order No. 637. 

Northern further states that copies of 

the filing have been mailed to each of 

its customers and interested State 

Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 763

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–235 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP02–451–002] 

Northern Natural Gas Company; Notice 

of Compliance Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Northern Natural Gas Company 

(Northern), tendered for filing in its 

FERC Gas Tariff, Fifth Revised Volume 

No. 1, the following tariff sheet in 

compliance with the Commission’s 

order issued on November 21, 2002 in 

Docket No. RP00–404–000, et al. (637 

Order):

Substitute First Revised Sheet No. 269B

In accordance with the Commission’s 

637 Order, Northern states that it is 

filing the above-referenced tariff sheet to 

revise Section 32 (L) (Imbalance 

Trading) of the General Terms and 

Conditions of Northern’s FERC Gas 

Tariff. 

Northern further states that copies of 

the filing have been mailed to each of 

its customers and interested State 

Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–240 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Project No. 77–110] 

Pacific Gas and Electric Company; 

Notice of Filing and Requesting 

Comments 

December 31, 2002. 

On November 29, 2002, the National 

Marine Fisheries Service (NMFS) filed 

with the Commission its final biological 

opinion for a proposed license 

amendment for the Potter Valley Project 

(PVP; FERC No. 77–110). The proposed 

amendment involves changes in the 

minimum flow release requirements at 

the project, consisting of increased 

releases to the Eel River, which would 

result in overall decreased diversions to 

the Russian River. The PVP is licensed 

to Pacific Gas and Electric Company 

(PG&E) and is located in Lake and 

Mendocino counties, California. 

The NMFS biological opinion finds 

that the proposed increase in minimum 

flow releases to the Eel River is likely 

to jeopardize the continued existence of 

southern Oregon/northern California 

coho salmon, California coastal chinook 

salmon, and California steelhead and 

likely to adversely modify designated 

critical habitat in the Eel River Basin. 

With respect to salmonids in the 

Russian River, it is the NMFS’ biological 

opinion that the proposed action is not 

likely to jeopardize listed species or 

adversely modify designated critical 

habitat. The biological opinion includes 

a ‘‘Reasonable and Prudent 

Alternative,’’ which the NMFS believes 

should avoid jeopardy to listed species. 

The purpose of this notice is to 

request comments on the NMFS 

biological opinion, including its 

‘‘Reasonable and Prudent Alternative.’’

Copies of the biological opinion are 

available for review at the Commission 

in the Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For assistance, contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at 1–866–208–3676, or for TTY, 

(202) 502–8659. 

Comments on the biological opinion 

should be filed with the Commission 

within 30 days from the issuance date 

of this notice. 

All documents (original and eight 

copies) should be filed with: Magalie R. 

Salas, Secretary, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426. The 

Commission’s Rules of Practice require 

all intervenors filing documents with 

the Commission to serve a copy of that 

document on each person on the official 

service list for the project. Further, if an 

intervenor files comments or documents 

with the Commission relating to the 

merits of an issue that may affect the 

responsibilities of a particular resource 

agency, they must also serve a copy of 

the document on that resource agency. 

Motions to intervene and protests may 

be filed electronically via the Internet in 

lieu of paper. The Commission strongly 

encourages electronic filings. See 18 

CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site (http://www.ferc.gov) under the ‘‘eFiling’’ link. 

For additional information concerning 

the foregoing, please contact John 

Mudre at (202) 502–8902. 

Comments due: January 30, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–233 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

764 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–14–001] 

Pine Needle LNG Company, LLC; 

Notice of Compliance Filing 

December 31, 2002. 

Take notice that on December 27, 

2002, Pine Needle LNG Company, LLC 

(Pine Needle), tendered for filing as part 

of its FERC Gas Tariff, Original Volume 

No. 1, Second Revised Sheet No. 80 and 

Second Revised Sheet No. 81. The 

proposed effective date of the tariff 

sheets is February 1, 2003. 

Pine Needle states that the purpose of 

this filing is to comply with the 

Commission’s ‘‘Order Accepting Tariff 

Filing and Requiring Compliance 

Filing’’ issued on November 27, 2002, in 

the referenced docket, in which the 

Commission directed Pine Needle to 

refile, within 30 days, revised tariff 

sheets to modify its right of first refusal 

provisions. 

Pine Needle states that it will serve 

copies of the instant filing on its 

affected customers and interested State 

Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–242 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. ER97–2355–008, et al.] 

Southern California Edison Company, 

et al.; Electric Rate and Corporate 

Filings 

December 27, 2002. 

The following filings have been made 

with the Commission. The filings are 

listed in ascending order within each 

docket classification. 

1. Southern California Edison Company 

[Docket Nos. ER97–2355–008, ER98–2322–

003 and ER97–2355–006] 

Take notice that on December 23, 

2002, Southern California Edison 

Company (SCE) tendered for filing its 

Wholesale Distribution Access Tariff 

(WDAT) in compliance with Opinion 

Nos. 458 and 458-A rendered in the 

aforementioned dockets. 

SCE states that copies of this filing 

were served upon those persons whose 

names appear on the official Service List 

for these dockets. 

Comment Date: January 13, 2003. 

2. Midwest Independent Transmission 

System Operator, Inc. 

[Docket No. ER02–108–008] 

Take notice that on December 23, 

2002, the Midwest Independent 

Transmission System Operator, Inc. (the 

Midwest ISO) tendered for filing 

revisions to Attachments S 

(Independent Market Monitoring Plan) 

and S–1 (Independent Market Monitor 

Retention Agreement) of the Midwest 

ISO Open Access Transmission Tariff. 

The Midwest ISO states that the 

revisions enhance the independent 

status of the Independent Market 

Monitor, and believe they are in 

compliance with the Commission’s 

November 22, 2002 Order in the same 

proceeding. 

The Midwest ISO also seeks waiver of 

the Commission’s regulations, 18 CFR 

385.2010 with respect to service on all 

parties on the official service list in this 

proceeding. The Midwest ISO states that 

they have served a copy of this filing 

electronically, with attachments, upon 

all Midwest ISO Members, Member 

representatives of Transmission Owners 

and Non-Transmission Owners, the 

Midwest ISO Advisory Committee 

participants, Policy Subcommittee 

participants, as well as all state 

commissions within the region. In 

addition, the filing has been posted 

electronically on the Midwest ISO’s 

Web site at www.midwestiso.org under 

the heading ‘‘Filings to FERC’’ for other 

interested parties in this matter. The 

Midwest ISO will provide hard copies 

to any interested parties upon request. 

Comment Date: January 13, 2003. 

3. Consolidated Edison Company of 

New York, Inc. 

[Docket Nos. ER02–2126–005] 

Take notice that on December 20, 

2002, Consolidated Edison Company of 

New York, Inc. (Con Edison) tendered 

for filing a revised unexecuted 

Interconnection Agreement (Agreement) 

between Con Edison and PSEG Power 

In-City I, LLC (PSEG Power). Con 

Edison stated that the filing was made 

in compliance with the Order Accepting 

for Filing, with Modifications, Proposed 

Interconnection Agreement, issued on 

November 20, 2002 in this proceeding. 

The revised Agreement has a designated 

effective date of September 1, 2002. 

Con Edison stated that copies of the 

filing were served upon all parties to 

this proceeding. 

Comment Date: January 13, 2003. 

4. ISO New England, Inc. 

[Docket No. ER02–2330–004] 

Take notice that on December 20, 

2002, ISO New England Inc. submitted 

a compliance filing providing a status 

report on the implementation of 

Standard Market Design in New 

England. 

Comment Date: January 10, 2003. 

5. New York Independent System 

Operator, Inc. 

[Docket No. ER03–13–001] 

Take notice that on December 23, 

2002, the New York Independent 

System Operator, Inc. (NYISO) tendered 

for filing a compliance filing in 

accordance with the Commission’s 

November 22, 2002 order in the abovecaptioned proceeding. 

The NYISO states that it has served a 

copy of this filing to all parties that have 

executed Service Agreements under the 

NYISO’s Open-Access Transmission 

Tariff or Services Tariff, the New York 

State Public Service Commission and to 

the electric utility regulatory agencies in 

New Jersey and Pennsylvania. 

Comment Date: January 13, 2003. 

6. Pacific Gas and Electric Company 

[Docket No. ER03–312–000] 

Take notice that on December 23, 

2002, Pacific Gas and Electric Company 

(PG&E) tendered for filing unexecuted 

copies of: (i) A Wholesale Distribution 

Tariff (WDT) Service Agreement 

(Service Agreement) between PG&E and 

Hercules Municipal Utility (HMU); and 

(ii) an Interconnection Agreement (IA) 

between PG&E and HMU. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 765

The Service Agreement is submitted 

pursuant to the PG&E wholesale 

distribution tariff and permits PG&E to 

recover the ongoing costs for service 

required over PG&E’s distribution 

facilities. The IA provides the terms and 

conditions for the continued 

interconnection of the Electric Systems 

of HMU and PG&E. 

PG&E has requested certain waivers 

for a proposed effective date of January 

1, 2003. Copies of this filing have been 

served upon HMU, the California 

Independent System Operator 

Corporation and the California Public 

Utilities Commission. 

Comment Date: January 13, 2003. 

7. New York State Electric & Gas 

Corporation 

[Docket No. ER03–313–000] 

Take notice that on December 23, 

2002 New York State Electric & Gas 

Corporation (NYSEG) tendered for filing 

pursuant to Section 205 of the Federal 

Power Act and Section 35.13 of the 

Federal Energy Regulatory 

Commission’s (FERC or Commission) 

Regulations, a supplement to Rate 

Schedule 117 filed with FERC 

corresponding to an Agreement with the 

Delaware County Electric Cooperative 

(the Cooperative). 

This rate filing is made pursuant to 

Section 1 (c) and Section 3(a) through 

(c) of Article IV of the June 1, 1977 

Facilities Agreement between NYSEG 

and the Cooperative, filed with FERC. 

The annual charges for routine 

operation and maintenance and general 

expenses, as well as revenue and 

property taxes are revised based on data 

taken from NYSEG’s Annual Report to 

the Federal Energy Regulatory 

Commission (FERC Form 1) for the 

twelve month period ending December 

31, 2001. The revised facilities charge is 

levied on the cost of the 34.5 kV tie line 

from Taylor Road to the Jefferson 

Substation, constructed by NYSEG for 

the sole use of the Cooperative. 

NYSEG requests an effective date of 

January 1, 2003. NYSEG also states that 

copies of the filing were served upon 

the Delaware County Electric 

Cooperative, Inc. and the Public Service 

Commission of the State of New York. 

Comment Date: January 13, 2003. 

8. New York State Electric & Gas 

Corporation 

[Docket No. ER03–316–000] 

Take notice that on December 23, 

2002 New York State Electric & Gas 

Corporation (NYSEG) tendered for filing 

pursuant to Section 205 of the Federal 

Power Act and Section 35.13 of the 

Federal Energy Regulatory 

Commission’s (FERC or Commission) 

Regulations, a supplement to Rate 

Schedule 194 filed with FERC 

corresponding to an Agreement with the 

Steuben Rural Electric Cooperative, Inc. 

(the Cooperative). 

This rate filing is made pursuant to 

Section 2 (a) through (c) of Article IV of 

the December 1, 1977 Facilities 

Agreement between NYSEG and the 

Cooperative, filed with FERC. The 

annual charges for routine operation 

and maintenance and general expenses, 

as well as revenue and property taxes 

are revised based on data taken from 

NYSEG’s Annual Report to the Federal 

Energy Regulatory Commission (FERC 

Form 1) for the twelve month period 

ending December 31, 2001. The revised 

facilities charge is levied on the cost of 

the tap of NYSEG’s South Addison to 

Presho 34.5 transmission line. Such tap 

of NYSEG’s transmission line connects 

to the Cooperative’s Sullivan Road 

Substation and is for the sole use of the 

Cooperative. 

NYSEG requests an effective date of 

January 1, 2003. NYSEG states that 

copies of the filing were served upon 

the Steuben Rural Electric Cooperative, 

Inc. and the Public Service Commission 

of the State of New York. 

Comment Date: January 13, 2003. 

9. PacifiCorp 

[Docket No.ER03–317–000] 

Take notice that on December 23, 

2002, PacifiCorp, tendered for filing in 

accordance with 18 CFR 35 et seq.of the 

Commission’s Rules and Regulations, a 

revised Attachment J to its Open Access 

Transmission Tariff calculating load 

ratio shares applicable to PacifiCorp’s 

Network Integration Transmission 

Service Customers. 

PacifiCorp states that copies of this 

filing were supplied to the Public Utility 

Commission of Oregon, the Washington 

Utilities and Transportation 

Commission, and PacifiCorp’s Network 

Customers. 

Comment Date: January 13, 2003. 

10. PacifiCorp 

[Docket No. ER03–318–000] 

Take notice that on December 23, 

2002, PacifiCorp tendered for filing in 

accordance with 18 CFR 35 et seq. of the 

Commission’s Rules and Regulations, a 

Notice of Cancellation of Supplement 

No. 20 to Service Agreement No. 65 

under PacifiCorp’s 1st Revised Electric 

Tariff Vol. No. 11 for service between 

PacifiCorp and Hinson Power Company. 

PacificCorp states that copies of this 

filing were supplied to Hinson Power 

Company, the Public Utility 

Commission of Oregon and the 

Washington Utilities and Transportation 

Commission. 

Comment Date: January 13, 2003. 

11. International Falls Power Company 

[Docket No. ER03–319–000] 

Take notice that on December 23, 

2003, International Falls Power 

Company (IFPC) tendered for: (1)Filing 

a petition for acceptance of an initial 

rate schedule authorizing IFPC to make 

wholesale sales of power at marketbased rates; (2) requests for waivers and 

blanket authority; and (3) a request for 

an effective date for its market-based 

rate authorization as of January 1, 2003. 

Comment Date: January 13, 2003. 

12. NM Colton Genco LLC, NM MidValley Genco LLC, NM Milliken Genco 

LLC 

[Docket Nos. ER03–320–000, ER03–321–000, 

and ER03–322–000] 

Take notice that on December 23, 

2002, NM Colton Genco LLC (NM 

Colton), NM Mid-Valley Genco LLC 

(NM Mid-Valley) and NM Milliken 

Genco LLC (NM Milliken ) (together, 

Applicants), requested the Commission 

to: (1) Accept for filing Applicants’

proposed FERC Electric Tariffs, and 

grant their requests for blanket authority 

to make market-based sales of energy, 

capacity, and certain ancillary services; 

and (2) grant Applicants such waivers 

and authorizations necessary to transact 

at market-based rates. 

Comment Date: January 13, 2003. 

13. Midwest Independent Transmission 

System Operator, Inc. 

[Docket No. ER03–323–000] 

Take notice that on December 23, 

2002, the Midwest Independent 

Transmission System Operator, Inc. (the 

Midwest ISO) tendered for filing the 

Midwest ISO Market Mitigation 

Measures as Attachment S–2 to the 

Midwest ISO Open Access 

Transmission Tariff. 

The Midwest ISO also seeks waiver of 

the Commission’s regulations, 18 CFR 

385.2010 with respect to service on all 

parties on the official service list in this 

proceeding. The Midwest ISO states it 

has served a copy of this filing 

electronically, with attachments, upon 

all Midwest ISO Members, Member 

representatives of Transmission Owners 

and Non-Transmission Owners, the 

Midwest ISO Advisory Committee 

participants, Policy Subcommittee 

participants, as well as all state 

commissions within the region. In 

addition, the filing has been posted 

electronically on the Midwest ISO’s 

Web site at www.midwestiso.org under 

the heading ‘‘Filings to FERC’’ for other 

766 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

interested parties in this matter. The 

Midwest ISO will provide hard copies 

to any interested parties upon request. 

Comment Date: January 13, 2003. 

14. PJM Interconnection, L.L.C. 

[Docket No. ER03–324–000] 

Take notice that on December 20, 

2002, PJM Interconnection, L.L.C. (PJM) 

submitted for filing: (1) An unexecuted 

network integration transmission 

service agreement for the Borough of 

Mont Alto (Mont Alto); and (2) revisions 

to Attachment H–11 of the PJM open 

access transmission tariff (PJM Tariff) to 

reflect the settlement credit and 

resulting rate for network integration 

transmission service for Mont Alto in 

the Allegheny Power (Allegheny) zone. 

The network service agreement reflects 

an ‘‘Other Supporting Facilities’’ charge 

for Mont Alto calculated by Allegheny 

and based upon direct assignment of the 

distribution facilities used to provide 

service to Mont Alto. 

PJM requests waiver of the 

Commission’s notice requirement to 

allow an effective date of December 1, 

2002 for the filing, to reflect the date 

upon which Mont Alto began taking 

network integration transmission 

service under the PJM Tariff. 

PJM states that it served a copy of its 

filing on Mont Alto and the 

Pennsylvania Public Utilities 

Commission. 

Comment Date: January 10, 2003. 

15. Ameren Services Company 

[Docket No. ER03–326–000] 

Take notice that on December 24, 

2002, Ameren Services Company (ASC) 

tendered for filing an unexecuted 

Network Integration Transmission 

Service Agreement and Network 

Operating Agreement between ASC and 

Ameren Energy Marketing. ASC asserts 

that the purpose of the Agreement is to 

permit ASC to provide transmission 

service to Ameren Energy Marketing 

pursuant to Ameren’s Open Access 

Transmission Tariff. 

Comment Date: January 14, 2003. 

16. Wisvest Corporation, WisvestConnecticut, LLC, PSEG Fossil LLC 

[Docket No. ER03–327–000] 

Take notice that on December 23, 

2002, PSEG Power Connecticut LLC and 

its parent PSEG Fossil LLC, tendered for 

filing with the Federal Energy 

Regulatory Commission (Commission) 

Original Rate Schedule FERC No. 1 in 

compliance with Wisvest Corporation, 

et al., 101 FERC § 61,166, effective as of 

December 6, 2002. 

Comment Date: January 13, 2003. 

17. New York Independent System 

Operator, Inc. 

[Docket No. ER03–328–000] 

Take notice that on December 23, 

2002, the New York Independent 

System Operator, Inc. (NYISO), filed 

proposed revisions to the NYISO’s 

Market Administration and Control 

Area Services Tariff (Services Tariff) 

and Open Access Transmission Tariff 

(OATT). The proposed filing would 

revise provisions regarding customer 

challenges to settlements and the 

NYISO’s reconciliation of final 

settlement corrections. 

The NYISO has requested that the 

Commission make the filing effective on 

January 10, 2003. NYISO also states that 

a copy of this filing was served upon all 

signatories of the NYISO’s OATT and 

Services Tariff. 

Comment Date: January 13, 2003. 

18. NorthWestern Energy, a division of 

NorthWestern Corporation 

[Docket No. ER03–329–000] 

Take notice that on December 23, 

2002, NorthWestern Energy, a division 

of NorthWestern Corporation, tendered 

for filing with the Federal Energy 

Regulatory Commission (Commission) a 

Notice of Succession adopting all 

applicable rate schedules, service 

agreement, tariffs and supplements 

thereto previously filed with the 

Commission by NorthWestern Energy, 

L.L.C. (formerly known as The Montana 

Power Company). 

Comment Date: January 13, 2003. 

19. Sunflower Electric Power 

Corporation 

[Docket No. NJ03–1–000] 

Take notice that on December 23, 

2002, Sunflower Electric Power 

Corporation (Sunflower) submitted a 

petition for declaratory order granting 

reciprocity approval of its amended 

Open Access Transmission Tariff and a 

request for waiver of the filing fee 

associated with such petitions. 

Comment Date: January 21, 2003. 

20. Entergy Services, Inc. 

[Docket Nos. OA96–158–006 and OA97–657–

003] 

Take notice that on December 23, 

2002, Entergy Services, Inc. (Entergy) on 

behalf of the Entergy Operating 

Companies, tendered for filing an 

amendment to its December 2, 2002 

compliance filing submitted in the 

above-referenced dockets pursuant to 

the Federal Energy Regulatory 

Commission’s (Commission) order in 

Entergy Services, Inc., 101 FERC 

§ 61,141. Entergy filed Substitute First 

Revised Sheet No. 118 to replace First 

Revised Sheet No. 118 to detail 

Entergy’s stated rate for Schedule No. 1 

charges provided under Entergy’s Open 

Access Transmission Tariff. The 

accompanying blackline to Substitute 

First Revised Sheet No. 118 also corrects 

a typographical error contained in the 

blackline accompanying First Revised 

Sheet No. 118. 

Comment Date: January 21, 2003. 

Standard Paragraph 

Any person desiring to intervene or to 

protest this filing should file with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Rules 211 

and 214 of the Commission’s Rules of 

Practice and Procedure (18 CFR 385.211 

and 385.214). Protests will be 

considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceeding. 

Any person wishing to become a party 

must file a motion to intervene. All such 

motions or protests should be filed on 

or before the comment date, and, to the 

extent applicable, must be served on the 

applicant and on any other person 

designated on the official service list. 

This filing is available for review at the 

Commission or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov, using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

filed to access the document. For 

assistance, contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866)208–3676, or for TTY, 

contact (202)502–8659. Protests and 

interventions may be filed electronically 

via the Internet in lieu of paper; see 18 

CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. The 

Commission strongly encourages 

electronic filings.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–231 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP00–426–015] 

Texas Gas Transmission Corporation; 

Notice of Compliance Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Texas Gas Transmission 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 767

Corporation (Texas Gas) tendered for 

filing as part of its FERC Gas Tariff, First 

Revised Volume No. 1, Substitute 

Seventh Revised Sheet No. 40, to 

become effective November 7, 2002. 

Texas Gas states that the purpose of 

this filing is to comply with conditions 

set forth in the Commission’s delegated 

order dated December 6, 2002. 

Texas Gas states that copies of the 

revised tariff sheet are being mailed to 

all parties on the service list. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–236 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket Nos. RP01–245–014, RP01–253–

007, CP01–34–004, CP01–103–003, CP01–

368–003, and RP02–171–005] 

Transcontinental Gas Pipe Line 

Corporation; Notice of Refund Report 

Filing 

December 31, 2002. 

Take notice that on December 20, 

2002, Transcontinental Gas Pipe Line 

Corporation (Transco) tendered the 

refund report filing in Docket Nos. 

RP01–245–000, et al. 

Transco states that on November 27, 

2002, Transco submitted refunds (or 

surcharges) to all affected customers in 

the referenced proceedings. 

Transco states that it has served 

copies of Attachment 1 to the filing and 

certain summary schedule (Appendix A 

to the filing) on the recipients of the 

refund (or surcharge) and their 

respective State Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed on or before January 9, 2003. 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

Comments, protests and interventions 

may be filed electronically via the 

Internet in lieu of paper. For Assistance, 

please contact FERC Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–237 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–13–001] 

Transcontinental Gas Pipe Line 

Corporation; Notice of Compliance 

Filing 

December 31, 2002. 

Take notice that on December 27, 

2002, Transcontinental Gas Pipe Line 

Corporation (Transco) tendered for 

filing as part of its FERC Gas Tariff, 

Third Revised Volume No. 1, Second 

Revised Fourth Revised Sheet No. 374O 

and First Revised Sheet No. 374O.00. 

The proposed effective date of the tariff 

sheets is February 1, 2003. 

Transco states that the purpose of this 

filing is to comply with the 

Commission’s ‘‘Order Accepting Tariff 

Filing and Requiring Compliance 

Filing’’ issued on November 27, 2002, in 

the referenced docket, in which the 

Commission directed Transco to refile, 

within 30 days, revised tariff sheets to 

modify its right of first refusal 

provisions. 

Transco states that it will serve copies 

of the instant filing on its affected 

customers and interested State 

Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–241 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–216–000] 

Transcontinental Gas Pipe Line 

Corporation; Notice of Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Transcontinental Gas Pipe Line 

Corporation (Transco) tendered for 

filing as part of its FERC Gas Tariff, 

Third Revised Volume No. 1, Seventh 

Revised Twenty-First Revised Sheet No. 

28, to be effective December 1, 2002. 

Transco states that the purpose of the 

instant filing is to track rate changes 

attributable to storage service purchased 

768 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

from Texas Eastern Transmission 

Corporation (TETCO) under its Rate 

Schedule X–28, the costs of which are 

included in the rates and charges 

payable under Transco’s Rate Schedule 

S–2. Transco states that this filing is 

being made pursuant to tracking 

provisions under Section 26 of the 

General Terms and Conditions of 

Transco’s Third revised Volume No. 1 

Tariff. 

Transco further states that included in 

Appendix A attached to the filing is the 

explanation of the rate changes and 

details regarding the computation of the 

revised S–2 rates. 

Transco states that copies of the filing 

are being mailed to affected customers 

and interested State Commissions. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed on or before January 7, 2003. 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

Comments, protests and interventions 

may be filed electronically via the 

Internet in lieu of paper. For Assistance, 

please contact FERC Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–245 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–2–001] 

Transwestern Pipeline Company; 

Notice of Tariff Filing 

December 31, 2002. 

Take notice that on December 27, 

2002, Transwestern Pipeline Company 

(Transwestern) tendered for filing as 

part of its FERC Gas Tariff, Second 

Revised Volume No. 1, Substitute 

Eleventh Revised Sheet No. 5B.03, to 

become effective November 1, 2002. 

Pursuant to Section 25 of the General 

Terms and Conditions of Transwestern’s 

FERC Gas Tariff, Transwestern states 

that it is filing a corrected tariff sheet, 

which sets forth the corrected TCR II 

Reservation Surcharges that 

Transwestern proposes to put into effect 

on November 1, 2002. Transwestern 

states that the tariff sheet Eleventh 

Revised Sheet No. 5B.03, previously 

submitted in its October 1 filing in 

Docket No. RP03–2–000 reflected 

incorrect rates for three Current Firm 

Shippers. 

Any person desiring to protest said 

filing should file a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Section 

385.211 of the Commission’s Rules and 

Regulations. All such protests must be 

filed in accordance with Section 

154.210 of the Commission’s 

Regulations. Protests will be considered 

by the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. This filing is available 

for review at the Commission in the 

Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the ‘‘FERRIS’’

link. Enter the docket number excluding 

the last three digits in the docket 

number field to access the document. 

For Assistance, please contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. The Commission 

strongly encourages electronic filings. 

See 18 CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. 

Protest Date: January 8, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–243 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. PR03–05–000] 

Washington Gas Light Company; 

Notice of Petition for Rate Approval 

December 31, 2002. 

Take notice that on December 9, 2002, 

Washington Gas Light Company 

(WGLC) filed pursuant to section 

284.123(b)(2) of the Commission’s 

regulations, a petition for rate approval 

requesting that the Commission approve 

the proposed rates as fair and equitable 

for transportation and storage services 

performed under section 311 of the 

Natural Gas Policy Act of 1978 (NGPA). 

WGLC proposes to establish a demand 

charge of $2.1841 per Dekatherm for the 

maximum daily quantity pursuant to its 

last approved rate in PR99–14–000. 

Pursuant to section 284.123(b)(2)(ii), 

if the Commission does not act within 

150 days of the date of this filing, the 

rates will be deemed to be fair and 

equitable and not in excess of an 

amount which interstate pipelines 

would be permitted to charge for similar 

transportation service. The Commission 

may, prior to the expiration of the 150 

day period, extend the time for action or 

institute a proceeding to afford parties 

an opportunity for written comments 

and for the oral presentation of views, 

data, and arguments. 

Any person desiring to participate in 

this rate proceeding must file a motion 

to intervene or protest with the Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington DC 20426, 

in accordance with Sections 385.214 or 

385.211 of the Commission’s Rules and 

Regulations. All such motions or 

protests must be filed with the Secretary 

of the Commission on or before January 

15, 2003. Protests will be considered by 

the Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceedings. Any person wishing to 

become a party must file a motion to 

intervene. This petition for rate 

approval is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits I the docket number 

field to access the document. For 

Assistant, call (202) 502–8222 or for 

TTY, (202) 502–8659. Comments, 

protests and interventions may be filed 

electronically via the Internet in lieu of 

paper. The Commission strongly 

encourages electronic filings.See 18 CFR 

385.2001(1)(iii) and the instructions on 

the Commission’s Web site under the 

‘‘e-Filing’’ link.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–234 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 769

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. EG03–33–000] 

Wellco Services, Inc.; Notice of 

Application for Commission 

Determination of Exempt Wholesale 

Generator Status 

December 31, 2002. 

Take notice that on December 26, 

2002, Wellco Services, Inc., a California 

corporation (Applicant), with its 

principal executive office at 650 Bercut 

Drive, Suite C, Sacramento, California 

95814, filed with the Federal Energy 

Regulatory Commission (Commission) 

an application for determination of 

exempt wholesale generator (EWG) 

status pursuant to part 365 of the 

Commission’s Regulations and Section 

32 of the Public Utility Holding 

Company Act of 1935, as amended. 

Applicant states it will be engaged 

directly and exclusively in the business 

of operating several eligible facilities 

and will satisfy the obligation of selling 

electric energy at wholesale through its 

contractual relationship with the 

owners of such eligible facilities which 

sell electric energy exclusively at 

wholesale. 

Applicant states that copies of the 

application have been served upon the 

California Public Utility Commission 

and the Securities and Exchange 

Commission. 

Any person desiring to intervene or to 

protest this filing should file with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Rules 211 

and 214 of the Commission’s Rules of 

Practice and Procedure (18 CFR 385.211 

and 385.214). Protests will be 

considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceeding. 

Any person wishing to become a party 

must file a motion to intervene. All such 

motions or protests should be filed on 

or before the comment date, and, to the 

extent applicable, must be served on the 

applicant and on any other person 

designated on the official service list. 

This filing is available for review at the 

Commission or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov , using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866)208–3676, or for TTY, 

contact (202)502–8659. Protests and 

interventions may be filed electronically 

via the Internet in lieu of paper; see 18 

CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. The 

Commission strongly encourages 

electronic filings. 

Comment Date: January 21, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–229 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket Nos. CP03–33–000, CP03–34–000 

and CP03–35–000] 

Wyckoff Gas Storage Company, LLC; 

Notice of Application 

January 2, 2003. 

On December 23, 2002, Wyckoff Gas 

Storage Company, LLC, (Wyckoff), 

located at 1776 Yorktown, Houston, 

Texas, 77056, filed an application in the 

above referenced dockets, pursuant to 

Section 7(c) of the Natural Gas Act 

(NGA), and Parts 157 and 284 of the 

Federal Energy Regulatory 

Commission’s (Commission) Rules and 

Regulations for: (1) A certificate of 

public convenience and necessity 

authorizing Wyckoff to develop, 

construct, own, operate, maintain, and 

abandon a natural gas storage facility 

and other associated and appurtenant 

facilities capable of storing 6 BCF of 

working gas; (2) a blanket certificate 

pursuant to part 284, Subpart G, 

authorizing Wyckoff to provide storage 

services on behalf of others; (3) a 

blanket certificate pursuant to part 157, 

Subpart F, authorizing Wyckoff to 

develop, construct, acquire, own, 

operate, maintain, and abandon 

additional facilities following 

construction of the facilities for which 

authorization is being sought under part 

157, Subpart A; and (4) authorization to 

provide storage services at market-based 

rates. This filing is available for review 

at the Commission in the Public 

Reference Room or may be viewed on 

the Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

assistance, contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or call 

toll-free, (866) 208–3676, or for TTY, 

(202) 502–8659. 

Wyckoff states that it does not have 

market power in any relevant product or 

geographic market for storage services, 

and has submitted a market power study 

with its application, in support of its 

position that it lacks market power. 

Pursuant to its request for market-based 

rates, Wyckoff requests that the 

Commission waive (1) the requirement 

of 18 CFR 157.14 with respect to 

Exhibits K, L, N, and O of the 

application; (2) the accounting and 

reporting requirements of 18 CFR part 

201 and 18 CFR 260.2; and the 

requirement to file the rate information 

required by 18 CFR 157.6(b)(8). 

The storage facilities which Wyckoff 

seeks to construct and operate will be 

located in Steuben County, New York. 

The storage facilities will consist of two 

depleted natural gas reservoirs and two 

pipelines, totaling 11.5 miles, to 

interconnect the facilities with the 

existing pipeline systems of Tennessee 

Gas Pipeline, Dominion Transmission, 

Inc., and Columbia Gas Transmission 

Company. The proposed storage facility 

has a maximum gas volume of 10 BCF, 

of which 6 BCF is working gas, a 

maximum deliverability of 400 MMCF/

d, and maximum injection capability of 

250 MMCf/d. The facility requires the 

construction of 6 new injection/

withdrawal wells, the re-completion of 

3 existing wells, 9,470 horsepower 

compression. Wyckoff will offer firm 

and interruptible storage services on an 

open access and non-discriminatory 

basis. 

Any questions regarding this 

application should be directed to 

Edmund A. Knolle, Executive Vice 

President, Wyckoff Gas Storage 

Company, LLC, 1776 Yorktown, 

Houston, Texas, 77056, (713) 961–3204. 

There are two ways to become 

involved in the Commission’s review of 

this project. First, any person wishing to 

obtain legal status by becoming a party 

to the proceedings for this project 

should, on or before the comment date 

stated below file with the Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426, 

a motion to intervene in accordance 

with the requirements of the 

Commission’s Rules of Practice and 

Procedure (18 CFR 385.214 or 385.211) 

and the Regulations under the NGA (18 

CFR 157.10). A person obtaining party 

status will be placed on the service list 

maintained by the Secretary of the 

Commission and will receive copies of 

all documents filed by the applicant and 

by all other parties. A party must submit 

14 copies of filings made in the 

proceeding. with the Commission and 

must mail a copy to the applicant and 

to every other party. Only parties to the 

770 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

proceeding can ask for court review of 

Commission orders in the proceeding. 

However, a person does not have to 

intervene in order to have comments 

considered. The second way to 

participate is by filing with the 

Secretary of the Commission, as soon as 

possible, an original and two copies of 

comments in support of or in opposition 

to this project. The Commission will 

consider these comments in 

determining the appropriate action to be 

taken, but the filing of a comment alone 

will not serve to make the filer a party 

to the proceeding. The Commission’s 

rules require that persons filing 

comments in opposition to the project 

provide copies of their protests only to 

the party or parties directly involved in 

the protest. 

Persons who wish to comment only 

on the environmental review of this 

project should submit an original and 

two copies of their comments to the 

Secretary of the Commission. 

Environmental commenters will be 

placed on the Commission’s 

environmental mailing list, will receive 

copies of the environmental documents, 

and will be notified of meetings 

associated with the Commission’s 

environmental review process. 

Environmental commenters will not be 

required to serve copies of filed 

documents on all other parties. 

However, the non-party commenters 

will not receive copies of all documents 

filed by other parties or issued by the 

Commission (except for the mailing of 

environmental documents issued by the 

Commission) and will not have the right 

to seek court review of the 

Commission’s final order. 

The Commission may issue a 

preliminary determination on nonenvironmental issues prior to the 

completion of its review of the 

environmental aspects of the project. 

This preliminary determination 

typically considers such issues as the 

need for the project and its economic 

effect on existing customers of the 

applicant, on other pipelines in the area, 

and on landowners and communities. 

For example, the Commission considers 

the extent to which the applicant may 

need to exercise eminent domain to 

obtain rights-of-way for the proposed 

project and balances that against the 

non-environmental benefits to be 

provided by the project. Therefore, if a 

person has comments on community 

and landowner impacts from this 

proposal, it is important either to file 

comments or to intervene as early in the 

process as possible. 

Protests and interventions may be 

filed electronically via the Internet in 

lieu of paper; see 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. The Commission 

strongly encourages electronic filings. 

If the Commission decides to set the 

application for a formal hearing before 

an Administrative Law Judge, the 

Commission will issue another notice 

describing that process. At the end of 

the Commission’s review process, a 

final Commission order approving or 

denying a certificate will be issued. 

Comment Date: January 23, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–295 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. RP03–217–000] 

Wyoming Interstate Company, Ltd.; 

Notice of Tariff Filing 

December 31, 2002. 

Take notice that on December 23, 

2002, Wyoming Interstate Company, 

Ltd. (WIC) tendered for filing as part of 

its FERC Gas Tariff, Second Revised 

Volume No. 2, Fourth Revised Sheet No. 

62, to become effective February 1, 

2003. 

WIC states that the tariff sheet is being 

filed to remove the five-year term 

matching cap from the right-of-firstrefusal provisions of WIC’s Tariff 

consistent with the Commission’s Order 

on Remand. 

Any person desiring to be heard or to 

protest said filing should file a motion 

to intervene or a protest with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Sections 

385.214 or 385.211 of the Commission’s 

Rules and Regulations. All such motions 

or protests must be filed in accordance 

with Section 154.210 of the 

Commission’s Regulations. Protests will 

be considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceedings. 

Any person wishing to become a party 

must file a motion to intervene. This 

filing is available for review at the 

Commission in the Public Reference 

Room or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

Assistance, please contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site under the 

‘‘e-Filing’’ link. Intervention Date:

January 6, 2003.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–246 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

[Docket No. ER03–182–001, et al.] 

Phoenix Energy Associates, L.L.C., et 

al.; Electric Rate and Corporate Filings 

December 30, 2002. 

The following filings have been made 

with the Commission. The filings are 

listed in ascending order within each 

docket classification. 

1. Phoenix Energy Associates, L.L.C. 

[Docket No. ER03–182–001] 

Take notice that on December 23, 

2002, Phoenix Energy Associates, L.L.C. 

tendered for filing with the Federal 

Energy Regulatory Commission 

(Commission) in response to a 

deficiency letter from the Commission, 

an amendment to its Rate Schedule, a 

contact number for the corporation and 

a waiver of the effective date for the 

Rate Schedule. 

Comment Date: January 13, 2003. 

2. XL Weather & Energy Inc. 

[Docket No. ER03–330–000] 

Take notice that on December 23, 

2002, XL Weather & Energy Inc. (XL 

Weather) submitted for filing a revised 

market-based rate schedule (Rate 

Schedule) reflecting its name change 

from Element Re Capital Products Inc. 

XL Weather requests a waiver of the 60-

day prior notice requirement to allow its 

revised Rate Schedule to become 

effective as of December 11, 2002 

Comment Date: January 13, 2003. 

3. PJM Interconnection, L.L.C. 

[Docket No. ER03–331–000] 

Take notice that on December 24, 

2002, PJM Interconnection, L.L.C. (PJM), 

submitted for filing amendments to the 

Appendix of Attachment K of the PJM 

Open Access Transmission Tariff and 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 771

Schedule 1 of the Amended and 

Restated Operating Agreement to 

modify the provisions relating to the 

determination of eligibility to receive 

Operating Reserves credits during 

Maximum Generation Emergency 

conditions. 

PJM states that copies of this filing 

were served upon all PJM members and 

each state electric utility regulatory 

commission in the PJM region. 

Comment Date: January 14, 2003. 

4. PJM Interconnection, L.L.C. 

[Docket No. ER03–332–000] 

Take notice that on December 24, 

2002, PJM Interconnection, L.L.C. (PJM), 

submitted for filing amendments to the 

governance provisions of the PJM 

Operating Agreement to: (1) Add two 

new members to the PJM Board of 

Managers (Board); (2) establish a 

Nominating Committee to choose 

candidates for Board vacancies; and (3) 

permit election of Board members and 

the Chair and Vice Chair of the 

Members Committee by a simple 

majority of voting sectors. 

PJM requests an effective date of 

December 25 for the amendments. PJM 

also states that copies of this filing were 

served upon all PJM members and each 

state electric utility regulatory 

commission in the PJM region. 

Comment Date: January 14, 2003. 

5. Southern California Edison Company 

[Docket No. ER03–333–000] 

Take notice that on December 24, 

2002, Southern California Edison 

Company (SCE) tendered for filing the 

Amended and Restated Service 

Agreement For Wholesale Distribution 

Service (Agreement) between SCE and 

SCE QF Resources. SCE respectfully 

requests an effective date of December 

25, 2002 for the revisions. 

The Agreement serves to provide the 

terms and conditions under which SCE 

provides Distribution Service under 

SCE’s FERC Electric Tariff, Original 

Volume No. 5. 

SCE states that copies of this filing 

were served upon the Public Utilities 

Commission of the State of California 

and SCE QF Resources. 

Comment Date: January 14, 2003. 

6. American Transmission Company 

LLC 

[Docket No. ER03–334–000] 

Take notice that on December 24, 

2002, American Transmission Company 

LLC (ATCLLC) tendered for filing a 

Generation-Transmission 

Interconnection Agreement between 

ATCLLC and Madison Gas and Electric 

Company. 

ATCLLC requests an effective date of 

November 24, 2002. 

Comment Date: January 14, 2003. 

7. Ameren Services Company 

[Docket No. ER03–335–000] 

Take notice that on December 24, 

2002, Ameren Services Company (ASC) 

tendered for filing an executed Service 

Agreement for Firm Point-to-Point 

Services between ASC and Duke Energy 

Trading and Marketing, L.L.C. ASC 

asserts that the purpose of the 

Agreement is to permit ASC to provide 

transmission service to Duke Energy 

Trading and Marketing, L.L.C. pursuant 

to Ameren’s Open Access Transmission 

Tariff. 

Comment Date: January 14, 2003. 

8. Ameren Services Company 

[Docket No. ER03–336–000] 

Take notice that on December 24, 

2002, Ameren Services Company (ASC) 

tendered for filing an unexecuted 

Service Agreement for Firm Point-toPoint Services between ASC and 

Ameren Energy. ASC asserts that the 

purpose of the Agreement is to permit 

ASC to provide transmission service to 

Ameren Energy pursuant to Ameren’s 

Open Access Transmission Tariff. 

Comment Date: January 14, 2003. 

9. Bangor Hydro-Electric Company 

[Docket No. ER03–337–000] 

Take notice that on December 23, 

2002 Bangor Hydro-Electric Company 

(Bangor Hydro) submitted for filing, 

pursuant to section 205 of the Federal 

Power Act, an executed Entitlement and 

Firm Energy Agreement between Bangor 

Hydro and Constellation Power Source, 

Inc. (CPS). 

Bangor Hydro states that copies of this 

filing were served upon CPS, 

Constellation Power Source Maine, LLC, 

the Maine Public Utilities Commission, 

and the Maine Public Advocate. 

Comment Date: January 13, 2003. 

10. Southern California Edison 

Company 

[Docket No. ER03–338–000] 

Take notice that on December 23, 

2002, Southern California Edison 

Company (SCE) tendered for filing with 

the Federal Energy Regulatory 

Commission (Commission) revisions to 

its Transmission Owner Tariff (TO 

Tariff), FERC Electric Tariff, Substitute 

First Revised Original Volume No. 6, to 

reflect (1) the annual update of the 

Transmission Revenue Balancing 

Account Adjustment and the 

Transmission Access Charge Balancing 

Account Adjustment; (2) the inclusion 

in the TO Tariff of rates for transmission 

service applicable to certain specified 

existing transmission contracts; (3) the 

Commission’s Opinion No. 458-A in 

Docket No. ER97–2355–002; and (4) 

SCE’s revised interconnection 

procedures which were accepted by the 

Commission’s June 4, 2002 order in 

SCE’s Docket Nos. EL00–95–025 and 

EL00–98–024. 

SCE states that copies of this filing 

were served upon the Public Utilities 

Commission of the State of California, 

the California Independent System 

Operator, the service list in Docket No. 

ER97–2355–002, the Cities of Azusa, 

Banning, Colton, Riverside, California, 

the Department of Water and Power of 

the City of Los Angeles, California, and 

all Scheduling Coordinators certified by 

the California Independent System 

Operator. 

Comment Date: January 13, 2003. 

11. San Diego Gas & Electric Company 

[Docket No. ER03–339–000] 

Take notice that on December 23, 

2002, San Diego Gas & Electric 

Company (SDG&E) tendered for filing 

with the Federal Energy Regulatory 

Commission (Commission) Original 

Volume No. 7 to its Transmission 

Owner Tariff, superseding Volume No. 

6 in its entirety. Volume No. 7 

incorporates changes resulting from 

prior Commission orders that accepted 

for filing SDG&E’s revised generator 

interconnection procedures, revised 

Reliability Must Run rates, and 

Supplemental Transmission Surcharge 

Rates for upgrades to its Imperial 

Valley-La Rosita transmission line and 

the costs of increased security for its 

transmission system. Along with these 

approved changes, SDG&E has 

eliminated certain rate schedules and 

added a new schedule with the approval 

of the California Public Utilities 

Commission, eliminated references to 

the California Power Exchange, 

eliminated Ancillary Services it no 

longer offers since divestiture of its 

generation assets, and updated the 

contact information for regulatory 

filings. 

SDG&E requests that the Commission 

waive the sixty-day notice requirement 

and establish an effective date of 

December 31, 2002 for Volume No. 7. 

SDG&E states that copies of the filing 

have been served on the California 

Public Utilities Commission and the 

California Independent System Operator 

Corporation. 

Comment Date: January 13, 2003. 

12. Calpine PowerAmerica—OR, LLC, 

Calpine Power America—CA, LLC 

772 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

[Docket Nos. ER03–341–000 and ER03–342–

000] 

Take notice that on December 26, 

2002, Calpine PowerAmerica—CA, LLC 

tendered for filing, under section’205 of 

the Federal Power Act (FPA), a request 

for authorization to make wholesale 

sales of electric energy, capacity, 

replacement reserves, and ancillary 

services at market-based rates, to 

reassign transmission capacity, and to 

resell firm transmission rights. 

Comment Date: January 16, 2003. 

13. Aquila, Inc. 

[Docket No. ER03–344–000] 

Take notice that on December 27, 

2002, Aquila, Inc. (Aquila), filed with 

the Federal Energy Regulatory 

Commission (Commission), pursuant to 

Section 205 of the Federal Power Act, 

16 U.S.C. 824d, and part 35 of the 

Commission Regulations, 18 CFR part 

35, an Interconnection Agreement 

between Aquila, Inc. d/b/a WestPlains 

Energy-Kansas and Russell Municipal 

Power and Light dated as of December 

9, 2002. The Interconnection Agreement 

is filed as Service Agreement No. 104 to 

Aquila FERC Electric Tariff, Third 

Revised Volume No. 26. 

Comment Date: January 17, 2003. 

14. New England Power Pool 

[Docket No. ER03–345–000] Take notice that 

on December 27, 2002, the New England 

Power Pool (NEPOOL) Participants 

Committee submitted changes to Appendix E 

to Market Rule 1 (Appendix E), entitled 

‘‘Load Response Program.’’ Appendix E has 

been revised to change the basis for 

allocating to Participants the costs of the 

NEPOOL Load Response Program from Load 

Obligation to Network Load. NEPOOL has 

requested that the proposed changes become 

effective February 25, 2003 for transactions 

on and after the applicable effective dates set 

forth in Market Rule 1 and Appendix E (the 

SMD Effective Date and the effective date for 

the Day-Ahead Demand Response Program). 

The NEPOOL Participants Committee 

states that copies of these materials were 

sent to the NEPOOL Participants and 

the New England state governors and 

regulatory commissions. 

Comment Date: January 17, 2003. 

Standard Paragraph 

Any person desiring to intervene or to 

protest this filing should file with the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426, in accordance with Rules 211 

and 214 of the Commission’s Rules of 

Practice and Procedure (18 CFR 385.211 

and 385.214). Protests will be 

considered by the Commission in 

determining the appropriate action to be 

taken, but will not serve to make 

protestants parties to the proceeding. 

Any person wishing to become a party 

must file a motion to intervene. All such 

motions or protests should be filed on 

or before the comment date, and, to the 

extent applicable, must be served on the 

applicant and on any other person 

designated on the official service list. 

This filing is available for review at the 

Commission or may be viewed on the 

Commission’s Web site at http://

www.ferc.gov , using the ‘‘FERRIS’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

filed to access the document. For 

assistance, contact FERC Online 

Support at 

FERCOnlineSupport@ferc.gov or tollfree at (866)208–3676, or for TTY, 

contact (202)502–8659. Protests and 

interventions may be filed electronically 

via the Internet in lieu of paper; see 18 

CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. The 

Commission strongly encourages 

electronic filings.

Linwood A. Watson, Jr., 

Deputy Secretary.

[FR Doc. 03–296 Filed 1–3–03; 8:45 am] 

BILLING CODE 6717–01–P

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7435–9] 

Availability of FY 01 Grant 

Performance Reports for State of North 

Carolina and Memphis-Shelby County, 

Tennessee

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Notice of availability of grantee 

performance evaluation reports. 

SUMMARY: EPA’s grant regulations (40 

CFR 35.150) require the Agency to 

evaluate the performance of agencies 

which receive grants. EPA’s regulations 

for regional consistency (40 CFR 56.7) 

require that the Agency notify the 

public of the availability of the reports 

of such evaluations. EPA performed 

end-of-year evaluations of the state air 

pollution control program at North 

Carolina Department of Environment 

and Natural Resources, and the local 

program at Memphis-Shelby County 

Health Department, Tennessee. These 

evaluations were conducted to assess 

the agencies’ performance under the 

grants awarded by EPA under authority 

of section 105 of the Clean Air Act. EPA 

Region 4 has prepared reports for each 

agency identified above and these 

reports are now available for public 

inspection. Evaluations for the other 

seven states and 15 local governments 

which have air pollution control 

programs were published November 18, 

2002.

ADDRESSES: The reports may be 

examined at the EPA’s Region 4 office, 

61 Forsyth Street, SW, Atlanta, Georgia 

30303, in the Air, Pesticides, and Toxics 

Management Division.

FOR FURTHER INFORMATION CONTACT:

Rayna Brown (404) 562–9093. She may 

be contacted at the above Region 4 

address.

Dated: December 23, 2002. 

Russell L. Wright, Jr., 

Assistant Regional Administrator, Office of 

Policy and Management, Region 4.

[FR Doc. 03–284 Filed 1–6–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7436–4] 

Preliminary Findings of Informal 

Review of State of Michigan’s 

Approved Clean Water Act Section 404 

Permit Program

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Notice and request for 

comments. 

SUMMARY: This document announces 

EPA’s preliminary finding that, at this 

time, formal program withdrawal 

proceedings should not be initiated for 

Michigan’s approved Clean Water Act 

section 404 permit program.

DATES: Comments on this document 

must be received in writing by March 

10, 2003.

ADDRESSES: Written comments on 

today’s notice may be submitted to Jo 

Lynn Traub, Director, Water Division, 

Attn: Michigan Section 404 Program 

Review, U.S. Environmental Protection 

Agency, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. As an 

alternative, EPA will accept comments 

electronically. Comments should be sent 

to the following Internet Email Address: 

elston.sue@epa.gov.

FOR FURTHER INFORMATION CONTACT: Sue 

Elston, Watersheds and Wetlands 

Branch, at the EPA address noted above 

or by telephone at (312) 886–6115. The 

Report containing EPA’s preliminary 

findings is available via the Internet at 

the following location: http://

www.epa.gov/region5/water/wshednps/

pdf/mi_404_program_review.pdf. In 

addition, a hard copy of the information 

supporting today’s notice is available for 

review at EPA Region 5, 77 West 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 773

Jackson Boulevard, 16th Floor, Chicago, 

Illinois; Library of Michigan, 702 

Kalamazoo Street, Lansing, Michigan; 

Olson Library, Northern Michigan 

University, 1401 Presque Isle Avenue, 

Marquette, Michigan; Otsego County 

Library, 700 S. Otsego Avenue, Gaylord, 

Michigan; and at Brandner Library, 

Schoolcraft College, 18600 Haggerty 

Road, Livonia, Michigan. To arrange for 

access to the docket materials in 

Chicago, call (312) 886–6115, in Lansing 

call (517) 373–9489, in Marquette call 

(906) 227–2117, in Gaylord call (989) 

732–5841, and in Livonia call (734) 

462–4440.

SUPPLEMENTARY INFORMATION: On 

October 16, 1984, EPA approved the 

regulatory permitting program that the 

State of Michigan had submitted 

pursuant to the requirements and 

guidelines contained in subsections 

404(g) and 404(h) of the Clean Water 

Act. 33 U.S.C. 1344(g) and (h). (See 49 

FR 38947, October 2, 1984.) In that 

notice of approval, EPA noted that the 

Administrator was required to approve 

a program submitted by a state pursuant 

to subsection 404(g) of the CWA unless 

that program does not meet the 

requirements of subsection 404(h) of the 

CWA, and EPA then stated that it had 

determined that the program submitted 

by the State of Michigan met those 

statutory requirements. The components 

of the approved program are stated at 40 

CFR 233.70 . When EPA initially 

approved the program, Michigan did not 

have authority to carry out the program 

in Indian lands. EPA now concludes, as 

set forth more fully in the Report, that 

Michigan remains without authorization 

to carry out the program in Indian lands, 

which EPA defines to be the same as 

Indian Country as defined by statute (18 

U.S.C. 1151). 

The Michigan state agency authorized 

in 1984 to administer the approved 

section 404 program was the 

Department of Natural Resources. Later, 

the State of Michigan reorganized its 

agencies and transferred authority to 

administer the approved section 404 

program to the Department of 

Environmental Quality (MDEQ). EPA 

approved this transfer on November 14, 

1997 (62 FR 61173, November 14, 1997). 

The State of Michigan was the first state 

in the nation, and currently is one of 

only two states, to be authorized to 

administer a CWA section 404 permit 

program within its borders. 

Recently EPA decided to perform an 

informal review of Michigan’s approved 

section 404 program and the program’s 

administration by MDEQ. EPA so 

decided, among other reasons, because 

since 1984 there have been a number of 

changes to the relevant federal and state 

statutes and regulations, and because a 

body of State of Michigan judicial and 

administrative opinions relevant to 

permitting under the section 404 

program had developed. In addition, in 

recent years EPA has received a number 

of comments and complaints about 

Michigan’s administration of the 

approved section 404 program. Among 

these was the February 1997 submission 

by the Michigan Environmental Council 

and the Lone Tree Council which 

requested that EPA either ensure reform 

of Michigan’s section 404 program or 

withdraw approval of the section 404 

program. EPA responded that it was 

treating the February 1997 request as a 

petition to withdraw, and committed to 

performing an informal review of that 

petition’s allegations, as provided for by 

40 CFR 233.53(c)(1). See documents 

published at 62 FR 14846, March 28, 

1997, and 62 FR 61173, 61174, 

November 14, 1997. The federal 

regulations allow EPA to conduct an 

informal review of allegations made in 

a petition to withdraw a section 404 

program approval, 40 CFR 233.53(c). 

In deciding to informally review 

Michigan’s section 404 program, 

however, EPA decided to 

comprehensively review all aspects of 

Michigan’s administration of the section 

404 program—both with respect to 

permit processing and permit decision 

making and with respect to enforcement 

of the provisions of CWA section 404 

and section 404 permits issued by 

MDEQ—and to comprehensively review 

the adequacy of Michigan’s current legal 

authorities which establish and embody 

Michigan’s section 404 program. Thus, 

EPA did not limit itself to reviewing the 

few matters of concern mentioned in the 

petition submitted by the Michigan 

Environmental Council and the Lone 

Tree Council. 

The Regional Administrator of Region 

5, EPA, informed the Director of MDEQ 

of the commencement of the section 404 

program review in a letter of January 22, 

1998. 

To perform its program review, EPA 

requested that the State of Michigan 

provide an updated program description 

(40 CFR 233.11); a new Attorney 

General’s Statement confirming that 

state laws and regulations provide 

adequate authority to administer the 

section 404 program and addressing the 

other subjects mentioned at 40 CFR 

233.12; and a compilation of all current, 

relevant Michigan laws and regulations. 

The State of Michigan submitted these 

materials to EPA in June 1999, and 

submitted new and updated information 

to EPA between June 1999 and the date 

of this Notice.

As well as reviewing and analyzing 

the documents submitted by the State of 

Michigan, during its program review 

EPA reviewed hundreds of permitting 

files, enforcement files, and citizen 

complaint files that MDEQ generated 

between 1995 and 1999, visiting all 

thirteen MDEQ district offices and the 

central MDEQ office in Lansing, 

Michigan. EPA also conducted 

numerous interviews of MDEQ 

personnel in the field and central 

offices. Additionally, EPA reviewed 

most of MDEQ’s written decisions 

issued in contested permitting cases 

between January 1994 and early 1999. 

The contested case decisions represent 

final agency action by MDEQ in matters 

involving individual permits processed 

under the approved state program. Also 

as part of its program review, EPA 

consulted with offices of the U.S. Fish 

and Wildlife Service and the U.S. Army 

Corps of Engineers which interact with 

MDEQ during its administration of the 

program. Finally, during January and 

May of 1999 EPA held four availability 

sessions to receive comments from 

interested persons. 

EPA now has completed its review 

and analysis of all materials. EPA has 

preliminarily concluded that the review 

findings do not warrant a 

recommendation to the Administrator to 

initiate formal program withdrawal 

proceedings, but do warrant corrective 

action on the State’s part. In arriving at 

this conclusion, EPA analyzed whether 

the circumstances for program 

withdrawal which are set forth at 40 

CFR 233.53(b) exist and, with respect to 

those areas of concern to EPA, whether 

the State of Michigan has indicated its 

willingness to take timely corrective 

actions to address EPA’s concerns. In 

performing the program review, EPA 

also reviewed the criteria for initial 

section 404 program approval which are 

set forth in subsection 404(h) of the 

CWA. 

EPA has found both deficiencies and 

strengths in Michigan’s legal authorities 

establishing the approved section 404 

program and in the program’s 

administration by MDEQ. These 

strengths, deficiencies, and proposed 

corrective actions are identified in the 

document titled Results of the U.S. 

Environmental Protection Agency 

Region 5 Review of Michigan 

Department of Environmental Quality’s 

Section 404 Program, and other 

documents that are contained in the 

public docket that supports this Notice. 

To address the deficiencies, EPA will be 

requesting that the State of Michigan 

perform certain corrective actions; EPA 

already has consulted with the State of 

Michigan about the nature of those 

774 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

corrective actions. The corrective 

actions that EPA has identified to date 

are described in general terms elsewhere 

in this Notice and supporting 

documents, although those corrective 

actions may be modified based on future 

experience and the specifics of the 

corrective actions must still be defined 

and finalized. EPA expects that certain 

corrective actions may be implemented 

through regulatory action by MDEQ, but 

that other corrective actions will require 

action by the Michigan legislature. EPA 

and the State of Michigan also have 

agreed on a tentative schedule for 

implementing the identified corrective 

actions, although we expect that 

modifications to this schedule likely 

will occur in the future. If adequate 

corrective actions are not taken by the 

State of Michigan in a timely manner, 

EPA will reconsider whether formal 

withdrawal proceedings, as outlined in 

subsection 404(i) of the CWA and 40 

CFR 233.53(c), should be commenced. A 

summary of the most significant 

findings of the program review follows. 

Through its review of the State of 

Michigan’s legal authorities, EPA has 

determined that the State’s laws and 

regulations are, for the most part, 

consistent with section 404 of the Clean 

Water Act, but has identified 

deficiencies in a few specific areas, 

resulting in a preliminary conclusion by 

EPA that the State does not have legal 

authority fully consistent with section 

404 of the Clean Water Act and the 

State’s implementation of the section 

404 program is not entirely consistent 

with the requirements of 40 CFR part 

233. 

The scope of regulatory jurisdiction 

granted to MDEQ by Michigan law is 

one area of concern for EPA. In many 

Michigan counties MDEQ has no 

jurisdiction over a non-contiguous 

wetland even if that wetland is 

ecologically significant or large (unless 

MDEQ has individually determined that 

the wetland has essential natural 

resource value). EPA acknowledges that 

the extent of federal CWA jurisdiction 

over isolated wetlands recently was 

limited by the United States Supreme 

Court decision in Solid Waste Agency of 

Northern Cook County v. U.S. Army 

Corps of Engineers, 121 S.Ct. 675 (2001) 

(SWANCC), but the precise CWA 

jurisdictional limitation resulting from 

SWANCC remains unclear. For that 

reason EPA remains concerned that 

Michigan’s jurisdiction over noncontiguous wetlands is narrower than is 

federal CWA jurisdiction over isolated 

wetlands, even post-SWANCC. The 

State is proposing completion of a 

statewide wetland inventory, which 

upon completion in each county, will 

authorize MDEQ to assert jurisdiction 

over all non-contiguous wetlands in that 

county which are larger than five acres. 

Another area of concern is that 

Michigan law appears to exempt a wider 

range of activities than does the CWA 

under subsection 404(f) of the CWA, 

including exemptions for discharges 

occurring as part of certain agricultural 

activities, discharges related to drain 

creation and improvement, and 

discharges associated with iron and 

copper mining tailings basins. The State 

has agreed to seek statutory 

amendments and the promulgation of 

administrative rules to address these 

issues. 

EPA’s examination of Michigan law 

included review of MDEQ’s authorities 

and procedures for issuing permits. 

MDEQ issues section 404 and State 

permits for activities in waters of the 

United States under two different state 

statutes: Part 301 and Part 303 of the 

Natural Resources and Environmental 

Protection Act. EPA has several 

concerns with regard to MDEQ’s 

permitting authority. The first concern 

is that MDEQ may not have clear 

authority to require all permit 

conditions required under federal law, 

and may not have clear authority to 

revoke and modify issued permits in all 

situations provided for by federal law. 

The State has agreed to promulgation of 

administrative rules to resolve these 

concerns. EPA also considered the 

Michigan statutory provision which 

directs that a permit under Part 303 

shall issue within 90 days of a triggering 

event, and found this provision does not 

pose an impediment to MDEQ’s proper 

implementation of the section 404 

program. 

Michigan law also fails to require that 

MDEQ incorporate the section 404(b)(1) 

guidelines (or state environmental 

criteria which are equivalent to the 

section 404(b)(1) guidelines) into its 

permit decision making processes. The 

criteria in the section 404(b)(1) 

guidelines as to which MDEQ-issued 

permits are not explicitly required to 

meet include application of a proper 

feasible and prudent alternatives 

analysis, application of the correct water 

dependency test, a bar on issuing 

permits which will jeopardize federally 

threatened or endangered species or 

their critical habitats, and a bar on 

issuing permits which will result in 

significant degradation of waters of the 

United States. The State has already 

promulgated administrative rules that 

address many of these concerns, and has 

agreed to promulgate rules to address 

the remaining issues. 

EPA’s review of contested case 

decisions issued over the years by 

MDEQ’s Office of Administrative 

Hearings found that final agency 

decisions frequently have failed to 

interpret and apply Michigan law in a 

manner that is consistent with the 

federal requirements for administering a 

section 404 program; the result has been 

the issuance of permits—which 

constitute section 404 permits—for 

activities which have not been subjected 

to proper analyses for water 

dependency, satisfaction of the section 

404(b)(1) guidelines, and other federal 

criteria, thereby undermining the State’s 

ability to administer a program which 

meets the terms of section 404(h) of the 

CWA. For these reasons, EPA has found 

that certain changes must be made to 

some Michigan statutory provisions and 

administrative rules in order to make 

them more clearly consistent with 

federal law. MDEQ has acknowledged 

EPA’s concerns and has proposed what 

appear to be effective corrective actions 

to resolve these concerns. Some of these 

corrective actions already have been 

taken by MDEQ, while others are 

proposed for the future. 

With regard to MDEQ’s 

administration of the section 404 

program, the program review found that, 

in general, MDEQ is doing a good job. 

MDEQ is operating its regulatory 

program in a manner consistent with the 

State Program Regulations found at 40 

CFR part 233. The majority of permit 

files which EPA reviewed were found to 

contain the necessary documentation 

supporting the permit decision. The 

State’s general permit program was 

found to be consistent with the federal 

requirements for general permits. 

MDEQ’s permit application process was 

found to be consistent with the 

requirements in the federal regulations. 

MDEQ is including appropriate 

conditions in its permits to ensure 

compliance with the section 404(b)(1) 

guidelines and applicable water quality 

standards, and the duration of permits 

issued is consistent with federal 

requirements.

This program review did, however, 

identify several problems with MDEQ’s 

administration of its section 404 permit 

program. The program review identified 

a need for MDEQ, USFWS and EPA to 

develop a procedure regarding how the 

agencies will coordinate when a 

potential project may have some effect 

on a federally threatened or endangered 

species or critical habitat. 

The EPA has identified the need for 

MDEQ to modify its public notice 

procedures to make them consistent 

with 40 CFR 233.32. EPA found that 

MDEQ public notice procedures do not 

ensure that interested members of the 

public always have sufficient 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 775

opportunity to submit comments in 

response to public notices nor do the 

state’s public notice procedures include 

providing public notices by mail to all 

interested parties, as required by the 

regulations. In order to partially address 

this concern, the state has implemented 

an internet based public notice system 

that makes all public notices available 

on the MDEQ website. EPA and MDEQ 

will be discussing additional corrective 

actions that need to be taken to ensure 

that all interested persons receive timely 

public notices of projects requiring 

CWA section 404 permits. 

As part of our review of MDEQ’s 

enforcement efforts, citizen complaint 

files were reviewed in all of the MDEQ 

district offices. Based on the annual 

reports prepared by MDEQ, an average 

of 800 citizen complaints are 

investigated each year. The program 

review found that district offices make 

a concerted effort to address complaints. 

Generally, the review found complaints 

were routinely followed with site 

inspections, which usually were made 

within two weeks of receipt of the 

complaint. 

An opportunity for public 

participation in the State’s enforcement 

process is required by federal law, and 

MDEQ has agreed to implement 

procedures to comply with the 

requirements of 40 CFR 233.41(e)(2). 

This review concludes that MDEQ has 

maintained a satisfactory enforcement 

program. MDEQ has designed the 

enforcement program to identify unpermitted activities and initiates 

enforcement responses in a timely 

manner. Overall, Michigan’s 

enforcement program achieves 

appropriate injunctive relief through 

wetlands restoration and wetland 

mitigation and obtains adequate 

penalties. The review of MDEQ’s use of 

administrative consent agreements 

found that the agreements effectively 

resolved the violations at issue and 

resulted in additional environmental 

restoration and conservation of wetland. 

Although there is no legal 

requirement that EPA receive public 

comment regarding the preliminary 

determinations of its informal review of 

Michigan’s section 404 program, EPA 

has decided to accept such public 

comments for a period of sixty (60) days 

from the publication date of this notice. 

EPA seeks public comment on its 

preliminary determination that formal 

withdrawal proceedings not be 

commenced, as well as EPA’s detailed 

findings regarding MDEQ’s 

administration of the permitting and 

enforcement program and the adequacy 

of Michigan’s legal authorities. If public 

comments received by EPA indicate 

significant public interest in the holding 

of a public hearing, EPA may decide to 

hold such a hearing.

Dated: December 18, 2002. 

Bharat Mathur, 

Acting Regional Administrator, Region 5.

[FR Doc. 03–285 Filed 1–6–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7436–5] 

Issuance of a General Permit to the 

National Science Foundation for the 

Ocean Disposal of Man-Made Ice Piers 

From its Base at McMurdo Sound on 

Antarctica

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed permit.

SUMMARY: EPA is today proposing to 

issue a general permit under sections 

102(a) and 104(c) of the Marine 

Protection, Research, and Sanctuaries 

Act (MPRSA) to the National Science 

Foundation (NSF) for the disposal at sea 

of man-made ice piers from its base at 

McMurdo Sound on Antarctica. The 

NSF is the agency of the United States 

Government responsible for oversight of 

the United States Antarctic Program. 

The NSF currently operates three major 

bases in Antarctica: McMurdo Station 

on Ross Island, adjacent to McMurdo 

Sound; Palmer Station, near the western 

terminus of the Antarctic Peninsula; and 

Amundsen-Scott South Pole Station, at 

the geographic South Pole. McMurdo 

Station is the largest of the three 

stations, and serves as the primary 

logistics base for Antarctica. In order to 

unload supplies at McMurdo Station, 

ships dock at an ice pier at McMurdo 

Station; this man-made pier has a 

normal life span of three to five years. 

At the end of its useful life, all 

transportable equipment, materials, and 

debris are removed, the pier is cast loose 

from its moorings at the base and towed 

out to McMurdo Sound for disposal, 

where it melts naturally. Issuance of this 

general permit is necessary because the 

pier must be towed out to sea for 

disposal at the end of its useful life. 

This proposed general permit is 

intended to protect the marine 

environment by setting forth specific 

permit terms and conditions, including 

operating conditions during use of the 

pier and clean-up, with which the NSF 

must comply before the disposal of such 

ice piers would take place.

DATES: Written comments on this 

proposed general permit will be 

accepted until February 6, 2003. All 

comments must be received or 

postmarked by midnight of February 6, 

2003, or must be delivered by hand by 

the close of business of that date to the 

address specified below.

ADDRESSES: This proposed permit is 

identified as Docket No. OW–2002–

0048. Please send an original and three 

copies of your comments and enclosures 

(including references) to the ‘‘OW–

2002–0048, Comment Clerk’’, Water 

Docket (MC 4101T), U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

Hand deliveries should be delivered to: 

EPA Water Docket, 1301 Constitution 

Avenue, NW., Room B–135, 

Washington, DC 20004. Electronic mail 

comments will be accepted at the e-mail 

address, ow-docket@epamail.epa.gov, 

and must be received by close of 

business of the date specified above. 

Electronic comments must be submitted 

as an ASCII, WP 5.1, WP 6.1, or WP 8 

file, avoiding the use of special 

characters and any form of encryption. 

Electronic comments must be identified 

by Docket Number OW–2002–0048. 

Comments and data will also be 

accepted on discs in ASCII, WP 5.1, WP 

6.1, or WP 8 file format. Electronic 

comments on this notice may be filed 

online at many Federal Depository 

Libraries. To ensure that the Agency can 

read, understand, and therefore properly 

respond to comments, commenters 

should cite the paragraph(s) or sections 

in the proposed permit to which each 

comment refers. Commenters should 

use a separate paragraph for each issue 

discussed. Commenters should submit 

any references cited in their comments. 

Commenters who want the Agency to 

acknowledge receipt of their comments 

should include a self-addressed, 

stamped envelope. No comments 

submitted by facsimile transmission 

(fax) will be accepted. The record for 

this proposed permit has been 

established, as noted above, as Docket 

No. OW–2002–0048, and includes 

printed, paper versions of electronic 

comments. The record is available for 

inspection from 9 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays, at the Water Docket, 1301 

Constitution Avenue, NW., Room B–

135, Washington, DC 20004. For access 

to docket materials, call (202) 566–2426, 

to schedule an appointment.

FOR FURTHER INFORMATION CONTACT:

David Redford, Chief, Marine Pollution 

Control Branch, Oceans and Coastal 

Protection Division (4504T), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, N.W., 

776 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Washington, DC, 20460; telephone (202) 

566–1288.

SUPPLEMENTARY INFORMATION:

A. Background on McMurdo Station Ice 

Pier 

The NSF was established as an 

independent agency of the Executive 

Branch of the government in 1950. 

Following the International Geophysical 

Year in 1957–1958, President 

Eisenhower decided that the NSF 

should have full responsibility for the 

formulation, coordination, and 

management of the United States 

Antarctic Program (USAP). The NSF 

currently operates three major bases in 

Antarctica: McMurdo Station on Ross 

Island, adjacent to McMurdo Sound; 

Palmer Station, near the western 

terminus of the Antarctic Peninsula; and 

Amundsen-Scott South Pole Station, at 

the geographic South Pole. 

McMurdo Station, which is located on 

the southern tip of Hut Point Peninsula 

on Ross Island, is the largest of the three 

stations. This station is the logistics hub 

of the USAP, with a harbor, landing 

strips on both sea ice and shelf ice, and 

a helicopter pad. The majority of 

personnel and supplies destined for 

bases and field camps on Antarctica 

pass through McMurdo Station.

The approximately 85 buildings at the 

Station range in size from a small radio 

shack to large three-story structures. 

This year-round facility has a peak 

summer population of approximately 

1150 persons, and a winter population 

of 150 to 200. McMurdo Station is the 

most southerly port in the world that is 

accessible by ship. 

For most of the year, McMurdo 

Station is closed in by sea ice. However, 

in early January, a U.S. Coast Guard 

icebreaker opens a channel to the harbor 

at McMurdo Station, allowing a fuel 

tanker and a supply vessel to replenish 

the station. The tanker normally arrives 

in mid-January to unload AN–8 fuel (JP–

8 fuel with an icing inhibitor added), 

and unleaded gasoline. The AN–8 fuel 

is the primary fuel for power generation, 

heating sources, and aircraft; the 

gasoline is used for small portable 

equipment. In early February, the 

resupply vessel arrives and off-loads the 

annual provision of supplies for 

McMurdo Station and other U.S. 

Antarctic bases. After unloading its 

cargo, the supply vessel is backloaded 

with the previous year’s accumulation 

of wastes, which are returned to the 

United States for disposal and recycling. 

To permit the various vessels to dock 

and unload at McMurdo Station, 

construction of an ice pier is necessary. 

This ice pier, which is approximately 

800 feet long, 300 feet wide, and 22 feet 

thick, is constructed during the winter 

season in the following manner. 

Construction begins when the frozen 

ice pack in McMurdo Sound reaches 

approximately 0.6 m (2 ft) in thickness. 

Snow is bermed to a depth of about 0.6 

m (2 ft) on the ice pack, at the perimeter 

of what will be the ice pier. Heavy-duty 

pumps are then used to flood the ice 

pack inside the bermed snow with about 

10 cm (4 in) of seawater. This water 

freezes solid in about 24 hours, when 

the process is repeated with another 10 

cm of seawater. This process is repeated 

until the ice thickness of the pier 

reaches approximately 1.5 m (5 ft). 

When that thickness of the pier is 

achieved, several holes are drilled in the 

ice near the periphery of the ice pier, 

and lengths of 2′′ steel pipe are inserted 

vertically into the holes. The space 

surrounding the pipe-ice interface is 

flooded with water and allowed to 

freeze, fixing the pipes in the ice pier. 

Approximately 2,100 m (6,900 ft) of 1′′

steel cable is then woven around the 

steel pipes frozen in the ice, providing 

a horizontal reinforcement mat for the 

first layer of the ice pier. 

The entire process is repeated three 

more times, until the ice pier is 

approximately 6.7 m (22 ft) thick. 

However, the horizontal mat of steel 

cables is not employed in the last 

repetition of the process; thus, there are 

three layers of cable reinforcement in 

the completed ice pier. When the final 

layer is created and the pier is 

approximately 6.7 m (22 ft) thick, three 

or four wooden utility poles are 

vertically embedded approximately four 

feet deep in the ice pier to provide 

support for electrical cables for lighting, 

power for equipment, and telephone 

service to structures on the pier. These 

poles consist of natural, chemicallyuntreated wood. In addition, just before 

the pier is completed, several shorter 

utility poles are frozen into the proximal 

edge of the pier, to serve as bollards, to 

attach the pier to the mainland at 

McMurdo. When the construction of the 

ice portion of the pier is completed, a 

15–20 cm (6–8 in) thick layer of 2 cm 

(3⁄4 in) or smaller gravel is applied to 

cover the surface of the pier, to provide 

a non-slip working surface. 

In summary, the following types and 

approximate quantities of materials 

would normally be used in the 

construction of an ice pier at McMurdo 

Sound Station:

—1′′ steel cable: 6,300 m (21,000 ft). 

—2′′ steel pipe: 200 m (650 ft). 

—Wooden utility poles: 3 or 4, plus 

several bollards. 

—2 cm or smaller gravel: 4,200 m3

(5,000 yd 3).

At the end of each austral summer 

season, the pier is inspected, and as 

much of the gravel non-slip surface as 

possible is removed and stored for use 

the following season. If the pier is to be 

reused the next year, it is flooded with 

seawater during the winter to create a 

new surface for the following summer 

season. The pier has a normal viable life 

of three to five years; after that period, 

factors such as stress cracking and 

erosion no longer allow the pier to be 

used. The erosion of the seaward face of 

the ice pier is caused by such factors as 

wave action, contact of vessels with the 

pier face, and the discharge of coolant 

water from ships docked at the pier. 

When the pier has deteriorated to the 

point that it is not capable of being used 

the following season, the wooden poles 

are cut off just above the surface of the 

ice, the gravel is scraped off for use in 

the following season, all transportable 

equipment, materials, and debris are 

removed, and the pier is physically 

separated from its attachment to 

McMurdo Base at the end of the austral 

summer. It is then towed by a U.S. Coast 

Guard cutter into McMurdo Sound past 

the distal end of the open channel in the 

ice, as near to the Ross Sea currents as 

possible. The pier is set free in a 

direction that will allow it to flow with 

the Ross Sea currents, away from the 

open channel in the ice. The pier then 

floats free amidst the ice pack, where it 

mixes with the annual sea ice, and 

eventually disintegrates. 

Complete information is not available 

on the time required for melting and 

disintegration of an ice pier, or on the 

path an ice pier takes after its release. 

NSF scientists have estimated, however, 

that melting and disintegration will take 

place over several years, and that ice 

piers will drift from their release point 

in McMurdo Sound, into the Antarctic 

Sea, and eventually into the Southern 

Ocean, where they will presumably float 

with the currents of the Southern 

Ocean. These estimates are supported 

by tracking data collected on an ice pier 

disposed by NSF in February 1999 

under an emergency permit. One 

condition of that permit was that the 

pier be tracked by the use of emplaced 

pingers for a period of one year. 

Tracking records indicated that the pier 

traveled approximately 600 miles in a 

generally northerly direction into the 

Southern Ocean during the first six 

months, when it then became locked in 

ice. No further movement of the ice pier 

was detected in the second six months 

of the year-long tracking period. These 

tracking results confirm what NSF staff 

believed would happen to any released 

ice piers. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 777

B. Statutory and Regulatory 

Background 

1. Marine Protection, Research, and 

Sanctuaries Act (MPRSA) 

Section 102(a) of the MPRSA, 33 

U.S.C. 1412(a), requires that agencies or 

instrumentalities of the United States 

obtain a permit to transport any material 

from any location for the purpose of 

dumping into ocean waters. Section 

104(c) of the MPRSA, 33 U.S.C. 1414(c), 

and EPA regulations at 40 CFR 220.3(a) 

authorize the issuance of a general 

permit under the MPRSA for the 

dumping of materials which have a 

minimal adverse environmental impact, 

and are generally disposed of in small 

quantities. General permits currently 

exist for burial at sea for both cremated 

and non-cremated human remains, for 

vessels used by the United States Navy 

for the purposes of target practice and 

testing ordnance, and for vessels 

transported for the purpose of disposal. 

The proposed towing of ice piers by 

the NSF from McMurdo Station for 

disposal at sea constitutes 

transportation of material for the 

purpose of dumping in ocean waters, so 

it is subject to the MPRSA. The NSF has 

requested the issuance of a general 

ocean dumping permit for its ice piers.

2. Obligations Under International Law 

On October 2, 1996, President Clinton 

signed into law the Antarctic Science, 

Tourism, and Conservation Act of 1996, 

amending the Antarctic Conservation 

Act of 1978. This law is designed to 

implement the provisions of the 

Protocol on Environmental Protection to 

the Antarctic Treaty (‘‘the Protocol’’). 

The Protocol was signed by the U.S. on 

October 4, 1991, ratified on April 17, 

1997, and entered into force on January 

18, 1998. The Protocol builds on the 

Antarctic Treaty to extend its 

effectiveness as a mechanism for 

ensuring protection of the Antarctic 

environment. It designates Antarctica as 

a natural reserve, devoted to peace and 

science, and sets forth basic principles 

and detailed, mandatory rules 

applicable to human activities in 

Antarctica. It prohibits all activities 

relating to mineral resources in 

Antarctica, except for scientific 

research. It commits signatories to the 

Protocol (known as Parties) to 

environmental impact assessment 

procedures for proposed activities, both 

governmental and private. Among other 

things, it also requires Parties to protect 

Antarctic flora and fauna, and imposes 

strict limitations on disposal of wastes 

in Antarctica, and discharges of 

pollutants into Antarctic waters. 

Several sets of regulations exist that 

will assist in implementation of the 

Protocol. These include NSF regulations 

regarding environmental impact 

assessment of proposed Foundation 

actions in Antarctica (45 CFR part 641), 

NSF waste regulations for Antarctica (45 

CFR part 671), and EPA regulations 

regarding environmental impact 

assessment of non-governmental 

activities in Antarctica (40 CFR part 8). 

EPA wishes to clarify that its proposal 

to issue a general permit under the 

MPRSA does not indicate whether the 

proposed activity is in compliance with 

other relevant obligations under the 

Protocol and implementing legislation. 

Accordingly, the responsible United 

States authority must make separate 

determinations with respect to other 

relevant obligations, and the Agency 

will coordinate with the responsible 

authority, as appropriate, in the 

Agency’s consideration of the issuance 

of a general permit under the MPRSA. 

In this regard, the Agency notes that 

the NSF has completed a USAP Final 

Environmental Impact Statement (June 

1980), a USAP Final Supplemental 

Environmental Impact Statement 

(October 1991), and an Initial 

Environmental Evaluation (May 1992), 

all of which address in some aspects the 

construction, operation, and disposal of 

ice piers at McMurdo Station in 

Antarctica. All of these documents are 

available for review at the Office of 

Polar Programs of the NSF, 4201 Wilson 

Boulevard, Arlington, VA 22230 

(Contact: Joyce Jatko, telephone: (703) 

292–8030). The documents did not 

identify any potential environmental 

impacts from the disposal of ice piers, 

other than the minor navigational 

hazard that would be equivalent to that 

posed by an ice floe or a small iceberg. 

The Agency considered the analyses 

contained in the three documents cited 

above in developing this proposed 

general permit. 

C. Potential Effects of Ice Pier Disposal 

Because the natural creation and 

disintegration of icebergs occurs 

constantly in the Antarctic 

environment, the primary ice 

component of the NSF piers is not of 

environmental concern. However, the 

ice piers also contain approximately 

21,000 feet of 1′′ steel cable and 650 feet 

of 2′′ steel pipe between the ice layers, 

that eventually will fall, as the pier 

disintegrates, to the bottom of McMurdo 

Sound, the Antarctic Sea, or the 

Southern Ocean. The steel cable and 

pipe will sink permanently to the 

bottom, and over considerable time, will 

dissolve through oxidative processes, 

unless they fall into very deep anaerobic 

waters, where they would not dissolve. 

Because there are approximately 

2,100 m (6,900 ft) of cable frozen in each 

of the three layers of the ice pier, it is 

possible that during the melting process 

there may be loops of cable suspended 

from the bottom of the ice pier. These 

loops will remain for brief periods of 

time before the cable in each layer is 

released from the bottom of the pier due 

to melting. The entire length of 2,100 m 

(6,900 ft) of cable would then descend 

rapidly to the ocean floor. 

The Agency has considered the 

possibility of these loops of cable 

entangling organisms in the marine 

environment. The only animals that 

could potentially become entangled in 

the suspended loops of cable are large 

whales of the Antarctic Sea or the 

Southern Ocean. However, these 

animals are known to have 

sophisticated natural sonar (sound 

navigation and ranging) systems, are 

able to detect and precisely identify 

objects at considerable distances with 

those systems, and normally will avoid 

large objects such as icebergs. In 

addition, because in excess of 80 

percent of icebergs (and the ice pier) is 

submerged beneath the surface, there is 

no reason to believe any cetaceans will 

approach an ice pier, by either coming 

near it on the surface to breathe, or by 

swimming beneath it. Thus, the 

possibility of entanglement of large 

animals by suspended loops of cable 

from the ice pier is regarded as very 

minimal. 

Additionally, the Agency and the NSF 

have discussed the possibility of seals 

becoming ensnared in any loops of cable 

hanging from the ice pier. Although 

seals are known to routinely haul out on 

ice floes to rest and to breed, EPA does 

not believe there is any danger from any 

cables embedded in the edges of the ice 

pier to Antarctic seal populations in 

their passage from the ocean to the ice 

surface, because any loops of cable will 

be visible and easily avoided. 

There is no danger to any marine 

avian species from the release of the ice 

piers. Penguins, if they are in the area, 

can easily hop onto, and off, the edge of 

the ice pier, if necessary. Further, there 

is no permanent penguin population in 

the area of McMurdo Station on a yearround basis. Any penguins in the area 

arrive at their usual breeding rookeries 

in late October of each year. Their eggs 

are hatched in November, the chicks are 

fledged no later than late December of 

each year, and all penguins, except for 

a very few stragglers, are gone from the 

McMurdo Station area by late January 

every year. On those years when the ice 

pier must be cut loose, the detachment 

778 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

from McMurdo Station occurs in late 

February. Thus, there are no penguins 

in the area at that time, since the birds 

will have already gone out to sea again. 

Further, both the National Marine 

Fisheries Service and the Fish and 

Wildlife Service have agreed that the 

disposal of ice piers from McMurdo 

Station will not have any effect on 

endangered or threatened species, nor is 

the action likely to adversely affect any 

critical habitats. 

In addition, the time that the loops of 

cable are suspended from the bottom of 

the ice pier would be expected to be 

relatively brief. Once a substantial 

portion of the cable in each layer is 

released from the ice by melting 

processes, the weight of the suspended 

cable will act to detach the remainder of 

the layer of cable from the pier. As 

discussed above, the entire length of 

cable would then fall rapidly to the 

ocean bottom. 

Although the wooden utility poles 

and the bollards are cut off at the level 

of the ice surface before the pier is 

towed for dumping, the six or seven 

stump ends of the poles, approximately 

four feet long, remain frozen in the pier. 

(The NSF requires that the longer, 

exposed lengths of the utility poles be 

returned for recycling back to the 

United States; they are never disposed 

of in the ocean). When eventually 

released from the pier during the 

disintegration process, the stump ends 

of the poles could float for several years, 

providing substrate for attachment of 

sessile organisms. Eventually, however, 

the poles will be destroyed by biological 

processes. Navigational hazards from 

the poles are unlikely, because of their 

small size and limited number.

Of potentially greater environmental 

concern are any operational discharges, 

leaks, or spills that may have 

contaminated the surface of the pier 

over the period of its existence. 

Examples of such possible releases 

include AN–8 (jet fuel formulated for 

cold environment use by heavy diesel 

engines and aircraft) or gasoline during 

the annual unloading process from the 

resupply oil tanker; spills of material 

due to leaks or cracks in containers or 

drums during the annual offloading 

from the supply vessel; leaks of AN–8, 

gasoline, engine lubricating oil, 

hydraulic fluid, or ethylene glycol 

(antifreeze) from equipment working on 

the pier; or spills of liquids or chemicals 

being stored on, or moved across, the 

pier. These discharges, leaks, and spills 

could result in contamination of parts of 

the pier with chemical compounds of 

concern to the marine environment. 

To assess this potential further, in 

February 1993 the NSF analyzed eleven 

ice samples taken from the ice pier at 

McMurdo Station. The samples were 

collected in the following manner. The 

central portion of the pier was first 

divided into 21 equal area quadrats, 

each approximately 100′ × 100′. The 

center of each plot was then identified, 

and four additional sample locations 

were identified in an equidistant ‘‘X’’

pattern from the center sample point. 

One sample was collected from each of 

the five points in each plot, and the five 

sub-samples were then composited into 

a single sample for each plot. 

Composited samples were analyzed for 

alternating plots throughout the grid 

pattern, i.e., the composited sample for 

every other plot was analyzed, for a total 

of eleven analyses. The samples were 

analyzed for two compounds: ethylene 

glycol (antifreeze) and total extractable 

hydrocarbons (TEH). Ethylene glycol 

was selected because of the possibility 

of leaks from engine blocks; TEH was 

selected because of the need for a broad 

spectrum analytical procedure, and 

because the presence of TEH would 

represent any possible extractable 

petroleum discharges onto the surface of 

the ice pier. Ethylene glycol was not 

detected in any of the eleven samples, 

at a detection limit of 16 mg/kg; TEH 

was not detected in ten of the eleven 

samples, at a detection limit of 3 mg/kg. 

Only one sample, collected beneath two 

55-gallon fuel drums used to provide 

heat for a warming hut on the ice pier, 

showed a concentration of 70 mg/kg. 

This sample was collected directly 

underneath fuel drums where dripping 

had occurred during drum exchange 

operations. 

Subsequently, the NSF issued a 

directive that at all locations where fuel 

drums for building heating systems, or 

fuel transfer stations are found, such 

locations shall be underlain with 

secondary containment methods, to 

facilitate capture of leaks or spills. 

Secondary containment methods 

include large metal pans or 

impermeable liners placed beneath the 

potential contaminant source. Drip pans 

were installed under the fuel drums at 

the warming hut on the ice pier. 

In February 1994, the approximately 

800′ by 300′ surface of the ice pier was 

again divided into 21 quadrats for 

further examination of locations of 

contamination. NSF personnel 

examined the entire surface of the pier, 

after the non-slip gravel surface had 

been removed, and any points on the 

pier showing signs of contamination 

from leaks or spills were marked and 

noted. Five samples were taken from 

each of the 21 quadrats; the samples 

were composited and analyzed for total 

petroleum hydrocarbons (TPH). TPH 

analysis, which identifies a narrower 

range of analytes than the broader TEH 

analytical procedure, was used because 

previous analyses demonstrated that 

only analytes from the narrower range 

are present. TPH has a detection limit of 

10 mg/kg; for all samples except one, 

TPH was undetected. That single 

sample had a TPH concentration of 50 

mg/kg. Analysis of that single sample 

was unable to specifically determine the 

chemical composition of the 

contaminants; vehicle engine fuel or 

hydraulic fluids were identified as the 

most likely possibilities. 

The NSF has a spill prevention, 

control, and countermeasures (SPCC) 

plan for all of the stations and bases 

under NSF jurisdiction in Antarctica. 

The plan, revised in September 1994, 

and currently being updated, includes a 

section addressing fuel storage and 

transfer systems for the ice pier at 

McMurdo Station. The SPCC plan 

identifies the annual unloading of 

petroleum products from the supply 

tanker as having the greatest potential 

for accidental discharge of 

contaminants. Previously, four-inch 

diameter hoses made up in 50-foot 

lengths were used to unload fuel from 

the tanker to the tank farms on the 

mainland at McMurdo Station. 

However, to reduce the risk of a 

potential fuel spill during the tanker 

unloading operation, new six-inch 

diameter hoses made up in 660-foot 

lengths replaced the older hoses in 

1993. The new hoses significantly 

reduced the number of hose connections 

(and potential leaks) on the ice pier. For 

further protection, the connecting point 

from the tanker to the transfer hose was 

underlain by large drip pans. 

In addition, the SPCC plan identifies 

the annual unloading of drummed 

lubricants, solvents, and hazardous 

materials from the cargo freighter, and 

the subsequent loading of the freighter 

with materials destined to be returned 

to New Zealand or the United States, as 

potential sources of accidental discharge 

or spills. As a result, to reduce the 

potential for discharges, the plan 

requires all materials received from, or 

loaded onto, the cargo vessel to be 

containerized in double-walled military 

vans. 

D. Discussion 

Today EPA is proposing to issue a 

new general permit to NSF and its 

agents for the ocean dumping of manmade ice piers from the NSF research 

station at McMurdo Sound, Antarctica, 

subject to specific conditions. Agents of 

the NSF are included in the permit 

because transportation for the purpose 

of dumping the pier may be by vessels 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 779

which are not under the direct 

ownership or operational control of the 

NSF, e.g., the U.S. Military Sealift 

Command, the U.S. Navy, or U.S. Coast 

Guard vessels. Further, the proposed 

general permit applies only to the ocean 

dumping of man-made ice piers from 

the NSF station at McMurdo Sound, 

Antarctica. The 1992 amendments to the 

MPRSA (Pub. L. 102–580) provide that 

permits under the MPRSA shall be 

issued for a period not to exceed seven 

years (section 104(a), 33 U.S.C. 1414(a)); 

consequently, the term of this proposed 

permit is limited to a maximum of seven 

years. 

The proposed general permit 

establishes several specific conditions 

that must be met during the life of, and 

prior to the ocean dumping of, the ice 

pier. In addition, it requires the NSF to 

report by June 30 of every year to the 

Director of the Oceans and Coastal 

Protection Division, in EPA’s Office of 

Water, on any spills, discharges, or 

clean-up procedures on the ice pier, and 

on any ocean dumping of ice piers from 

McMurdo Station conducted under this 

general permit. 

With the institution of new protective 

measures, such as longer length hoses 

for unloading petroleum products from 

the annual supply tanker, and new 

precautions taken in the handling and 

return to bases outside Antarctica of 

used or contaminated chemicals, 

solvents, and hazardous materials, the 

chance of a spill or a discharge of these 

materials is low. There is considerable 

vehicular traffic on the ice pier during 

the austral summer season, and the 

possibility of engine block leaks or 

discharges from these vehicles cannot 

be totally avoided. However, the NSF 

has informed the Agency that vehicles 

are parked on the pier for only brief 

periods of time, ranging from minutes to 

less than an hour, and that no vehicles 

are ever parked on the pier overnight. 

The proposed general permit requires 

that the NSF have an SPCC plan in 

place, consistent with the requirements 

of 40 CFR 112.3, for the ice pier that 

addresses: 

(1) The unloading of petroleum 

products from supply tankers to the 

storage tanks at McMurdo Station; 

(2) The unloading of drummed 

chemicals, petroleum products, and 

material (cargo) from cargo freighters to 

supply depots at McMurdo Station; and 

(3) The loading of materials to 

freighters destined to be returned to 

bases outside Antarctica. 

The proposed permit requires that the 

SPCC plan include methods to 

minimize the accidental release or 

discharge of any products to the ice 

pier. In addition, the proposed general 

permit requires that the following cleanup and reporting procedures must be 

followed by NSF in the event of a spill 

or discharge on the pier: 

(1) All spills or discharges must be 

cleaned up within two hours of the spill 

or discharge, or as soon as possible 

thereafter. 

(2) If a spill or discharge occurs, 

clean-up procedures must be completed 

to a level below any visible evidence of 

the spill or discharge. 

(3) As part of normal permit 

monitoring requirements, an official 

record of the following information 

shall be kept by NSF: 

(a) The date and time of all spills or 

discharges, the location of the spill or 

discharge, the approximate volume of 

the spill or discharge, clean-up 

procedures employed, and the results; 

(b) The number of wooden poles 

remaining in the pier at the time of 

release from McMurdo Station, and 

their approximate length;

(c) The approximate length of the 

steel cables remaining in the pier at the 

time of its release; 

(d) Any other substances remaining 

on the pier at the time of its release; and 

(e) The date of detachment of the pier 

from McMurdo Station, and the 

geographic coordinates (latitude and 

longitude) of the point of final release of 

the pier in McMurdo Sound. 

(4) A copy of this record shall be 

submitted to the Director of the Oceans 

and Coastal Protection Division, in the 

EPA’s Office of Water, by June 30 of 

every year as part of the annual 

reporting requirements. 

The conditions specified in the 

proposed permit are intended to protect 

the Antarctic environment against 

release of contaminants from the 

McMurdo Station ice pier following its 

ocean dumping and subsequent melting. 

As noted above, section 104(c) of the 

MPRSA, 33 U.S.C. 1414(c), and EPA 

regulations at 40 CFR 220.3(a) authorize 

the issuance of general permits for the 

dumping of materials which have 

minimal adverse environmental 

impacts. 

In light of the testing and analyses 

described above, and the conditions 

which are stipulated in the proposed 

permit for the disposal of ice piers, it is 

the determination of the Agency that 

only minimal adverse environmental 

impacts would result from the dumping 

of ice piers from the NSF base at 

McMurdo Station in Antarctica. 

Furthermore, the NSF is directed, as 

a condition of this permit, to utilize a 

methodology to track any ice piers 

released from McMurdo Station for a 

period of one year from the date of 

release of the pier. Such methodologies 

may include the use of satellite-tracked 

pingers placed on the ice pier, or any 

other methodology that will allow data 

to be collected on the course, speed, and 

location of the ice pier. The results of 

these tracking efforts are to be included 

in the reports that the NSF is required 

to submit to the Agency. The period of 

one year was chosen by the Agency for 

several reasons: first, batteries for pinger 

tracking operations beyond a period of 

one year become considerably heavier 

and bulkier (and a greater source of 

pollution to the marine environment 

when the ice piers eventually melt); and 

further, one year’s measurements should 

provide substantial evidence concerning 

the track of ice piers in the dissolution 

process. 

The NSF shall submit tracking reports 

to the Agency for all releases of ice piers 

from McMurdo Station under this 

permit. If tracking results demonstrate 

that all such ice piers released have 

generally followed the same path and 

time duration for the one year following 

release, the Agency will consider 

whether further tracking efforts and 

tracking reports shall be required from 

the NSF under any future versions of 

this permit. 

Considering that any contaminants 

remaining on the surface of the piers are 

expected to be extremely minimal, and 

further, that the area over which the 

melting and disintegration of the piers 

occurs is immense, the potential for 

damage to the environment from ocean 

dumping of any McMurdo Station ice 

piers is minimal. In addition, the 

possibility of entanglement of large 

organisms in suspended loops of cable 

from the melting ice piers has been 

determined by the Agency to be very 

minimal; further discussion of this issue 

can be found in ‘‘C. Potential Effects of 

Ice Pier Disposal,’’ above. 

Further, it should be noted that the 

issuance of an ocean dumping permit to 

the NSF does not in any way relieve the 

NSF of meeting any of its obligations 

under the Antarctic Protocol, the 

Antarctic Conservation Act, or the 

implementing regulations.

Statutory and Executive Order Reviews 

A. Paperwork Reduction Act 

The Paperwork Reduction Act, 44 

U.S.C. 3501 et seq., is intended to 

minimize the reporting and recordkeeping burden on the regulated 

community, as well as to minimize the 

cost of Federal information collection 

and dissemination. In general, the Act 

requires that information requests and 

record-keeping requirements affecting 

ten or more non-Federal respondents be 

approved by the Office of Management 

780 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

and Budget. Since this proposed general 

permit affects only a single Federal 

agency’s record-keeping and reporting 

requirements, it is not subject to the 

requirements of the Paperwork 

Reduction Act. 

B. Endangered Species Act 

The Endangered Species Act (ESA) 

imposes duties on Federal agencies 

regarding endangered species of fish, 

wildlife, or plants and habitat of such 

species that have been designated as 

critical. Section 7(a)(2) of the ESA and 

its implementing regulations (50 CFR 

part 402) require EPA to ensure, in 

consultation with the Secretary of 

Interior or Commerce, that any action 

authorized, funded, or carried out by 

EPA in the United States or upon the 

high seas, is not likely to jeopardize the 

continued existence of any endangered 

or threatened species, or adversely affect 

their critical habitat. 

In compliance with section 7 of the 

ESA, an endangered species list for the 

affected area of ocean dumping of ice 

piers from the NSF facility at McMurdo 

Station was requested by EPA and 

received from both the Fish and 

Wildlife Service (F&WS) of the 

Department of the Interior and the 

National Marine Fisheries Service 

(NMFS) of the Department of 

Commerce. No endangered, threatened, 

or candidate species are reported to 

potentially occur in the affected area. 

EPA has discussed this matter with 

both the F&WS and the NMFS pursuant 

to section 7 of the ESA, and the agencies 

have agreed that the ocean dumping of 

ice piers by the NSF or its agents from 

McMurdo Station in Antarctica will 

have no effect on endangered or 

threatened species. EPA will consider 

any comments offered by either the 

F&WS or the NMFS on this issue before 

promulgating a final general permit on 

the ocean dumping of ice piers.

Dated: January 2, 2003. 

Suzanne E. Schwartz, 

Director, Oceans and Coastal Protection 

Division.

The proposed permit is as follows:

Disposal of Ice Piers From McMurdo 

Station, Antarctica 

The United States National Science 

Foundation and its agents are hereby 

granted a general permit under sections 

102(a) and 104(c) of the Marine 

Protection, Research, and Sanctuaries 

Act, 33 U.S.C. 1412(a) and 1414(c), to 

transport ice piers from the McMurdo 

Sound, Antarctica, research station for 

the purpose of ocean dumping, subject 

to the following conditions: 

(a) The NSF shall have a spill 

prevention, control, and 

countermeasures (SPCC) plan in place, 

consistent with the requirements of 40 

CFR 112.3, for the McMurdo Station ice 

pier. The SPCC plan shall address 

procedures for loading and unloading 

the following materials, and shall 

include methods to minimize the 

accidental release or discharge of any of 

the following materials to the ice pier: 

(1) Petroleum products unloaded from 

supply tankers to the storage tanks at 

McMurdo Station; 

(2) Drummed chemicals, petroleum 

products, and materiel unloaded from 

cargo freighters to supply depots at 

McMurdo Station; and 

(3) Materials loaded to freighters 

destined to be returned to bases outside 

Antarctica. 

(b) If a spill or discharge occurs on an 

ice pier, clean-up procedures must be 

completed by NSF or its contractors to 

a level below any visible evidence of the 

spill or discharge. All spills or 

discharges on an ice pier must be 

cleaned up within two hours of the spill 

or discharge, or as soon as possible 

thereafter. 

(c) As part of normal monitoring 

requirements, a record of the following 

information shall be kept by NSF: 

(1) The date and time of all spills or 

discharges, the location of the spill or 

discharge, a description of the material 

that was spilled or discharged, the 

approximate volume of the spill or 

discharge, clean-up procedures 

employed, and the results; 

(2) The number of wooden poles 

remaining in the pier at the time of its 

release from McMurdo Station, and 

their approximate length; 

(3) The approximate length of the 

steel cables remaining in the pier at the 

time of its release from McMurdo 

Station; 

(4) Any other substances remaining 

on the pier at the time of its release from 

McMurdo Station; and 

(5) The date of detachment of the pier 

from McMurdo Station, and the 

geographic coordinates (latitude and 

longitude) of the point of final release of 

the pier in McMurdo Sound or the 

Antarctic Sea. 

(d) The non-embedded ends of all 

wooden utility poles and bollards will 

be cut off from the ice pier prior to 

disposal, and shall not be disposed of in 

the ocean. 

(e) Prior to the ocean dumping of any 

ice piers, the following actions shall be 

taken by NSF: 

(1) Other than the matter physically 

embedded in the ice pier (i.e., the ends 

of light poles or bollards frozen in the 

pier, and the strengthening cables), all 

other objects (including the nonembedded portions of bollards used for 

maintaining a connection between the 

pier and the mainland, the nonembedded portions of poles used for 

lighting, power, or telephone 

connections, and any removable 

equipment, debris, or objects of 

anthropogenic origin), shall be removed 

from the pier prior to dumping. 

(2) The gravel non-slip surface of the 

pier shall be removed to the maximum 

extent possible, and stored on the 

mainland for subsequent use. 

(3) A methodology to track any ice 

piers released from McMurdo Station 

shall be established and utilized for a 

period of one year from the date of 

release of the ice pier. The results of 

these tracking efforts are to be included 

in the annual reports that the NSF is 

required to submit to EPA. 

(f) The NSF shall submit a report by 

June 30 of every year to the Director of 

the Oceans and Coastal Protection 

Division, in EPA’s Office of Water, on 

(1) Any spills, discharges, or clean-up 

procedures on the ice pier at McMurdo 

Station, (2) any ocean dumping of ice 

piers from McMurdo Station, and (3) 

any tracking efforts of ice piers released 

from McMurdo Station under this 

general permit for the year preceding 

the date of the annual report. 

(g) For the purpose of this permit, the 

term ‘‘ice pier(s)’’ means those manmade ice structures containing 

embedded steel cable, and any 

remaining gravel frozen into the surface 

of the pier, that are constructed at 

McMurdo Station, Antarctica, for the 

purpose of off-loading the annual 

provision of materiel and supplies for 

the base at McMurdo Station and other 

U.S. Antarctic bases, and for loading the 

previous year’s accumulation of wastes, 

which are returned to the United States. 

(h) This permit shall be valid until 

[add date—seven years from the date of 

issuance]. 

[FR Doc. 03–335 Filed 1–6–03; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL HOUSING FINANCE BOARD

[No. 2002–N–15] 

Notice of Annual Adjustment of the 

Cap on Average Total Assets That 

Defines Community Financial 

Institutions, and Notice of Annual 

Adjustment of the Limits on Annual 

Compensation for Federal Home Loan 

Bank Directors, and Notice of Annual 

Adjustment of the Maximum Dollar 

Limits on Certain Allocations by a 

Bank of its Annual Required Affordable 

Housing Program Contributions

AGENCY: Federal Housing Finance 

Board.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 781

1All adjusted limits referred to in this notice have 

been rounded to some dollar level. However, the 

calculations of new limits are based on cumulative 

CP–U changes applied to the limits as they first 

appeared in Finance Board regulations, and hence 

are not distorted over time by rounding.

ACTION: Notice.

SUMMARY: Notice is hereby given that 

the Federal Housing Finance Board 

(Finance Board) has adjusted the cap on 

average total assets that defines a 

‘‘Community Financial Institution’’

(CFI) based on the annual percentage 

increase in the Consumer Price Index 

for all urban consumers (CPI–U), as 

published by the Department of Labor 

(DOL), pursuant to the requirements of 

section 2(13)(B) of the Federal Home 

Loan Bank Act (Bank Act) requirements 

of the Finance Board’s regulations. 

Notice is hereby given that the Finance 

Board has made similar adjustments to 

the limits on annual compensation for 

the Federal Home Loan Bank (Bank) 

directors, based on the CPI–U, as 

published by the DOL, pursuant to the 

requirements of section 7(i)(2)(B) of the 

Bank Act and requirements of the 

Finance Board’s regulations. In 

addition, notice is hereby given that the 

Finance Board has made similar 

adjustments to the maximum dollar 

limits on certain allocations by a Bank 

of its annual required Affordable 

Housing Program (AHP) contributions, 

pursuant to the requirements of the 

Finance Board’s regulations.

FOR FURTHER INFORMATION CONTACT:

Scott L. Smith, Associate Director, 

Economic and Financial Analysis, 

Office of Supervision, (202) 408–2991, 

or Kirsten L. Landeryou, Economic and 

Financial Analysis, Office of 

Supervision, (202) 408–2552. Staff also 

can be reached by regular mail at the 

Federal Housing Finance Board, 1777 F 

Street, NW., Washington, DC 20006.

SUPPLEMENTARY INFORMATION: Section 

2(13)(B) of the Bank Act (12 U.S.C. 

1422(13)(B)), and § 900.1 of the Finance 

Board’s regulations (12 CFR 900.1) 

require the Finance Board, beginning in 

2001, to adjust annually the cap on 

average total assets (CFI Asset Cap) set 

forth in section 2(13)(A)(ii) of the Bank 

Act (12 U.S.C. 1422(13)(A)(ii)) and 

§ 900.1 of the Finance Board’s 

regulations that defines a CFI, based on 

the annual percentage increase, if any, 

in the CP–U, as published by the DOL. 

Section 7(i)(2)(B) of the Bank Act (12 

U.S.C. 1427(i)(2)(B)) and § 918.3(a)(1) of 

the Finance Board’s regulations (12 CFR 

918.3(a)(1)), require the Finance Board, 

beginning January 1, 2001, to make 

similar annual adjustments to the 

annual compensation limits set forth in 

section 7(i)(2)(A) of the Bank Act (12 

U.S.C. 1427(i)(2)(A)) and § 918.3(a)(1), 

for members of the boards of directors 

of the Banks. Section 951.3(a)(1)(iii) of 

the Finance Board’s regulations (12 CFR 

951.3(a)(1)(iii)) requires the Finance 

Board, beginning in 2003, to make 

similar annual adjustments to the 

maximum dollar limits set forth in 

§ 951.3(a)(1)(i), on the amounts that a 

Bank may set aside annually from its 

annual required AHP contributions for 

the current year and the subsequent 

year, towards homeownership set-aside 

programs. In addition, § 951.3(a)(1)(iii) 

of the Finance Board’s regulations (12 

CFR 951.3(a)(1)(iii)) requires the 

Finance Board, beginning in 2003, to 

make similar annual adjustments to the 

maximum dollar limits set forth in 

§ 951.3(a)(1)(ii), on the amounts that a 

Bank may set aside annually from its 

annual required AHP contributions for 

the current year and the subsequent 

year, towards an additional first-time 

homebuyer set-aside program. Section 

951.3(a)(2) of the Finance Board’s 

regulations (12 CFR 951.3(a)(2)), 

requires the Finance Board, beginning 

in 2002, to make a similar annual 

adjustment to the maximum dollar limit 

set forth in § 951.3(a)(2), on the amount 

that a Bank may allocate from its annual 

required AHP contribution for the 

subsequent year to the current year’s 

competitive application program. 

For purposes of the CFI Asset Cap, the 

Finance Board is required to publish 

notice by Federal Register of the CP–Uadjusted Cap. See 12 CFR 900.1. For 

purposes of the Banks’ board of 

directors annual compensation limits, 

the Finance Board is required to publish 

notice, by Federal Register, distribution 

of a memorandum or otherwise, of the 

CP–U-adjusted limits on such 

compensation. See 12 CFR 918.3(a)(1). 

For purposes of the maximum dollar 

limits on Banks’ allocations from annual 

required AHP contributions, the 

Finance Board is required to publish 

notice, by Federal Register, distribution 

of a memorandum or otherwise, of the 

CP–U-adjusted maximum dollar limits. 

The annual adjustments of the 

existing CFI Asset Cap, annual Bank 

director compensation limits and 

maximum dollar limits on Bank 

allocations from annual required AHP 

contributions, effective January 1 of a 

particular calendar year, reflect the 

percentage by which the CP–U 

published for November of the 

preceding calendar year exceeds the 

CP–U published for November of the 

year before the preceding calendar year 

(if at all). For example, the adjustments 

of the limits effective January 1, 2003 

are based on the percentage increase in 

the CP–U from November 2001 to 

November 2002. The CFI Asset Cap is 

rounded to the nearest million dollars, 

the annual compensation limits are 

rounded to the nearest dollar and the 

limits on allocations from AHP 

contributions are rounded to the nearest 

$100,000.1

The Finance Board has determined 

that it is appropriate to use data from 

November rather than waiting for the 

December data to become available so 

that the Banks can be notified of the 

adjusted CFI Asset Cap, annual Bank 

director compensation limits and AHP 

maximum dollar allocation limits as 

close to the January 1 effective date as 

possible. Other Federal agencies do not 

rely on December data, which is 

published in mid-January, when 

calculating annual inflation adjustments 

and, as a result, are able to announce 

their adjustments prior to the effective 

date of January 1.

The DOL encourages the use of CPI–

U data that has not been seasonally 

adjusted in ‘‘escalation agreements’’

because seasonal factors are updated 

annually and seasonally adjusted data 

are subject to revision for up to five 

years following the original release. 

Unadjusted data are not routinely 

subject to revision, and previously 

published unadjusted data are only 

corrected when significant calculation 

errors are discovered. Accordingly, the 

Finance Board is using data that has not 

been seasonally adjusted to calculate the 

new CFI Asset Cap, annual Bank 

director compensation limits and AHP 

maximum dollar allocation limits. 

The unadjusted CPI–U increased 2.2 

percent between November of 2001 and 

November of 2002. Based on this data, 

pursuant to the requirements of § 900.1, 

the Finance Board has adjusted the CFI 

Asset Cap from the 2002 limit of $527 

million to $538 million, effective 

January 1, 2003. The Finance Board 

arrived at the adjusted limit of $538 

million by rounding to the nearest 

million. 

Pursuant to § 918.3(a)(1), based on the 

2.2 percent increase in the unadjusted 

CPI–U, the Finance Board has adjusted 

the annual compensation limits for the 

members of the boards of directors of 

the Banks as follows, effective January 

1, 2003: for a Chairperson—$26,921; for 

a Vice-Chairperson—$21,537; for any 

other member of a Bank’s board of 

directors—$16,152. The Finance Board 

arrived at the adjusted annual 

compensation limits by rounding to the 

nearest dollar. 

Pursuant to § 951.3(a)(1)(iii), based on 

the 2.2 percent increase in the 

unadjusted CPI–U, the Finance Board 

has adjusted the maximum dollar limits 

782 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

on the amounts that a Bank may set 

aside from its annual required AHP 

contributions for the current year and 

the subsequent year, toward 

homeownership set-aside programs, 

from the 2002 limit of $3.0 million to 

$3.1 million, effective January 1, 2003. 

The Finance Board arrived at the 

adjusted limit of $3.1 million by 

rounding to the nearest $100,000. 

Pursuant to § 951.3(a)(1)(iii), the 

Finance Board also applied the 2.2 

percent increase in the unadjusted CPI–

U to the 2002 maximum dollar limit on 

the amount that a Bank may set aside 

from its annual required AHP 

contributions, for the current year and 

the subsequent year, towards an 

additional first-time homebuyer setaside program. Rounding the resulting 

number to the nearest $100,000, the 

maximum dollar limit remains at the 

2002 level of $1.5 million, effective 

January 1, 2003. In addition, pursuant to 

§ 951.3(a)(2), based on the 2.2 percent 

increase in the unadjusted CPI–U, the 

Finance Board has adjusted the 

maximum dollar limit on the amount 

that a Bank may allocate from its annual 

required AHP contribution for the 

subsequent year to the current year’s 

competitive application program, from 

the 2002 limit of $3.0 million to $3.1 

million, effective January 1, 2003. The 

Finance Board arrived at the adjusted 

limit of $3.1 million by rounding to the 

nearest $100,000.

Dated: December 31, 2002.

Federal Housing Finance Board. 

John T. Korsmo, 

Chairman.

[FR Doc. 03–196 Filed 1–6–03; 8:45 am] 

BILLING CODE 6725–01–P

FEDERAL RESERVE SYSTEM

Sunshine Act Meeting

AGENCY HOLDING THE MEETING: Board of 

Governors of the Federal Reserve 

System.

TIME AND DATE: 11 a.m., Monday, 

January 13, 2003.

PLACE: Marriner S. Eccles Federal 

Reserve Board Building, 20th and C 

Streets, NW., Washington, DC 20551.

STATUS: Closed.

MATTERS TO BE CONSIDERED:

1. Personnel actions (appointments, 

promotions, assignments, 

reassignments, and salary actions) 

involving individual Federal Reserve 

System employees. 

2. Any items carried forward from a 

previously announced meeting.

CONTACT PERSON FOR MORE INFORMATION:

Michelle A. Smith, Assistant to the 

Board; (202) 452–2955.

SUPPLEMENTARY INFORMATION: You may 

call (202) 452–3206 beginning at 

approximately 5 p.m. two business days 

before the meeting for a recorded 

announcement of bank and bank 

holding company applications 

scheduled for the meeting; or you may 

contact the Board’s Web site at http://

www.federalreserve.gov for an electronic 

announcement that not only lists 

applications, but also indicates 

procedural and other information about 

the meeting.

Dated: January 3, 2003. 

Robert deV. Frierson, 

Deputy Secretary of the Board.

[FR Doc. 03–354 Filed 1–3–03; 2:17pm] 

BILLING CODE 6210–01–P

OFFICE OF GOVERNMENT ETHICS

Proposed Collection; Comment 

Request for Unmodified SF 278 

Executive Branch Personnel Public 

Financial Disclosure Report

AGENCY: Office of Government Ethics 

(OGE).

ACTION: Notice.

SUMMARY: After this first round notice 

and public comment period, OGE plans 

to submit the Standard Form (SF) 278 

for extension of approval (up to three 

years) by Office of Management and 

Budget 

(OMB) under the Paperwork 

Reduction Act. The SF 278 is henceforth 

to be accompanied by agency 

notification to filers of the adjustment of 

the gifts/travel reimbursements 

reporting thresholds and, when final, 

the revisions to the Privacy Act 

Statement. Both revisions will not be 

incorporated into the form itself at this 

time, since OGE plans a more thorough 

revision of the form in the next year or 

two.

DATES: Comments on this proposed 

extension should be received by March 

24, 2003.

ADDRESSES: Comments should be sent to 

Mary T. Donovan, Office of 

Administration and Information 

Management, Office of Government 

Ethics, Suite 500, 1201 New York 

Avenue, NW., Washington, DC 20005–

3917. Comments may also be sent 

electronically to OGE’s Internet E-mail 

address at usoge@oge.gov. For E-mail 

messages, the subject line should 

include the following reference—

‘‘Paperwork comment on the SF 278.’’

FOR FURTHER INFORMATION CONTACT: Ms. 

Donovan at the Office of Government 

Ethics; telephone: 202–208–8000, ext. 

1185; FAX: 202–208–8038. A copy of a 

blank SF 278 may be obtained, without 

charge, by contacting Ms. Donovan. 

Also, a copy of a blank SF 278 is 

available through the Forms, 

Publications & Other Ethics Documents 

section of OGE’s Web site at http://

www.usoge.gov.

SUPPLEMENTARY INFORMATION: The Office 

of Government Ethics is planning to 

submit, after this notice and comment 

period, the unmodified Standard Form 

278 Executive Branch Personnel Public 

Financial Disclosure Report (OMB 

control number 3209–0001) for 

extension of approval for (up to) three 

years by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

chapter 35). The current paperwork 

approval for the SF 278 is scheduled to 

expire at the end of March 2003. Since, 

for now, no modification to this 

standard form is being proposed, OGE 

will not seek any General Services 

Administration (GSA) standard forms 

clearance for this extension. 

The Office of Government Ethics, as 

the supervising ethics office for the 

executive branch of the Federal 

Government under the Ethics in 

Government Act (the Ethics Act), is the 

sponsoring agency for the Standard 

Form 278. In accordance with section 

102 of the Ethics Act, 5 U.S.C. app. 

section 102, and OGE’s implementing 

financial disclosure regulations at 5 CFR 

part 2634, the SF 278 collects pertinent 

financial information from certain 

officers and high-level employees in the 

executive branch for conflicts of interest 

review and public disclosure. The 

financial information collected under 

the statute and regulations relate to: 

assets and income; transactions; gifts, 

reimbursements and travel expenses; 

liabilities; agreements or arrangements; 

outside positions; and compensation 

over $5,000 paid by a source—all 

subject to various reporting thresholds 

and exclusions. 

The Office of Government Ethics 

notes two changes (discussed below) 

affecting the content of SF 278s. The 

first change concerns the recent 

adjustments in the gifts/reimbursements 

reporting thresholds. The second change 

involves the routine use language 

contained in the Privacy Act Statement 

of the form that will be revised in 2003. 

For now, OGE is proposing no revisions 

to the SF 278, but rather asks that 

executive branch departments and 

agencies inform SF 278 filers, through 

cover memorandum or otherwise, of 

these two changes when the existing 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 783

March 2000 edition of SF 278 report 

forms are provided for completion. In 

addition, information regarding these 

changes is being posted on OGE’s Web 

site.

Effective January 1, 2002, GSA raised 

‘‘minimal value’’ under the Foreign 

Gifts and Decorations Act, 5 U.S.C. 

7342, to $285 or less for the three-year 

period 2002–2004. See 67 FR 56495–

56496 (September 4, 2002). As a result, 

OGE has advised agencies and revised 

its financial disclosure regulations to 

reflect the increase in the thresholds for 

SF 278 reporting of gifts and travel 

reimbursements received from any one 

source to ‘‘more than $285’’ for the 

aggregation level for reporting and to 

‘‘$114 or less’’ for the de minimis 

aggregation exception threshold. These 

Ethics Act reporting thresholds are tied 

to any adjustment in foreign gifts 

minimal value over $250 (see 5 U.S.C. 

app. section 102(a)(2)(A) & (B)). See 

OGE’s September 27, 2002 

memorandum to designated agency 

ethics officials (DO–02–021) and 67 FR 

61761–61762 (October 2, 2002). Both 

the GSA and OGE rulemakings and 

OGE’s memorandum are posted on the 

OGE Web site. 

In addition, OGE is in the process of 

updating the OGE/GOVT–1 system of 

records notice (covering SF 278 Public 

Financial Disclosure Reports and other 

name-retrieved ethics program records). 

As a result, the Privacy Act Statement, 

which includes paraphrases of the 

routine uses on page 11 of the 

instructions on the SF 278, will be 

affected. A summary of the anticipated 

changes relevant to that SF 278 

statement has been prepared for 

inclusion with the paperwork clearance 

submission to OMB. Once the new 

language in OGE’s forthcoming Privacy 

Act notice is finalized (anticipated 

completion date is spring 2003), OGE 

will advise departments and agencies of 

the Privacy Act Statement changes (with 

notice to OMB at that time) without 

further paperwork clearance. 

During the last session of Congress, a 

bill (S. 1811) was introduced to amend 

the Ethics in Government Act of 1978 (5 

U.S.C. app.) to streamline the financial 

disclosure process for executive branch 

employees. The bill was not enacted, 

but may be introduced again in the 

current session of Congress. If the bill is 

enacted, the public financial disclosure 

requirements will change, and the SF 

278 will have to be revised accordingly. 

At that time, OGE would seek 

paperwork renewal from OMB and 

standard form clearance from GSA for 

the revised SF 278. 

For now, OGE will continue to make 

the unmodified SF 278 available to 

departments and agencies and their 

reporting employees through the Forms, 

Publications & Other Ethics Documents 

section of OGE’s Web site. This allows 

employees two different fillable options 

for preparing their report on a computer 

(in addition to a downloadable blank 

form), although a printout and manual 

signature of the form are still required 

unless specifically approved otherwise 

by OGE. 

The SF 278 is completed by 

candidates, nominees, new entrants, 

incumbents and terminees of certain 

high-level positions in the executive 

branch of the Federal Government. The 

Office of Government Ethics, along with 

the agencies concerned, conducts the 

review of the SF 278 reports of 

Presidential nominees subject to Senate 

confirmation. This group of nominee 

reports forms, together with those of 

terminees from such positions who may 

file after leaving the Government, forms 

the basis for OGE’s paperwork estimates 

in this notice. 

In light of OGE’s experience over the 

past three years (1999–2001), the 

estimate of the total number, on average, 

of such nominees’ SF 278 forms 

expected to be filed annually at OGE by 

members of the public (as opposed to 

current Federal employees) is 449. (The 

2002 figures are not yet available.) This 

estimated number is based primarily on 

the forms processed at OGE by private 

citizen Presidential nominees to 

positions subject to Senate confirmation 

(and their private representatives—

lawyers, accountants, brokers and 

bankers) and those who file termination 

reports from such positions after their 

Government service ends, as well as 

Presidential and Vice Presidential 

candidates who are private citizens. The 

OGE estimate covers the next three 

years, 2003–2005 including a significant 

increase in reports anticipated with the 

fall 2004 Presidential election and 

following transition. The prior 

paperwork burden estimate was 260 

forms per year. The estimated average 

amount of time to complete the report 

form, including review of the 

instructions and gathering of needed 

information, remains the same at three 

hours. Thus, the overall estimated 

annual public burden for the SF 278 for 

the private citizen/representative 

nominee and terminee report forms 

processed at the Office of Government 

Ethics is being adjusted to 1,347 (from 

780) hours. 

Moreover, OGE estimates, based on 

the agency ethics program questionnaire 

responses for 1999–2001 (the 2002 

figures are not available), that some 

21,200 SF 278 report forms are filed 

annually at departments and agencies 

throughout the executive branch. Most 

of those executive branch filers are 

current Federal employees at the time 

they file, but certain candidates for 

President and Vice President, nominees, 

new entrants and terminees complete 

the form either before or after their 

Government service. The percentage of 

private citizen filers branchwide is 

estimated at no more than 5% to 10%, 

or some 1,060 to 2,120 per year at most. 

Public comment is invited on each 

aspect of the SF 278 Public Financial 

Disclosure Report as set forth in this 

notice, including specifically views on 

the need for and practical utility of this 

collection of information, the accuracy 

of OGE’s burden estimate, the potential 

for enhancement of quality, utility and 

clarity of the information collected, and 

the minimization of burden (including 

the use of information technology). 

Any comments received in response 

to this notice will be summarized for, 

and may be included with, OGE’s 

request for extension of OMB paperwork 

approval for this information collection. 

Comments will also become a matter of 

public record.

Approved: December 30, 2002. 

Amy L. Comstock, 

Director, Office of Government Ethics.

[FR Doc. 03–287 Filed 1–6–03; 8:45 am] 

BILLING CODE 6345–02–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Agency for Healthcare Research and 

Quality 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request

AGENCY: Agency for Healthcare Research 

and Quality, HHS.

ACTION: Notice.

SUMMARY: This notice announces the 

intention of the Agency for Healthcare 

Research and Quality (AHRQ) to request 

the Office of Management and Budget 

(OMB) to allow the proposed 

information collection project: ‘‘Needs 

Assessment of Primary Care PracticeBased Research Networks (PBRNs)’’. In 

accordance with the Paperwork 

Reduction Act of 1995, Public Law 104–

13 (44 U.S.C. 3506(c)(2)(A)), AHRQ 

invites the public to comment on this 

proposed information collection.

DATES: Comments on this notice must be 

received by March 10, 2003.

ADDRESSES: Written comments should 

be submitted to: Cynthia D. McMichael, 

Reports Clearance Officer, AHRQ, 2101 

784 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

East Jefferson Street, Suite 500, 

Rockville, MD 20852–4908. Copies of 

the proposed collection plans, data 

collection instruments, and specific 

details on the estimated burden can be 

obtained from the AHRQ Reports 

Clearance Officer.

FOR FURTHER INFORMATION CONTACT:

Cynthia D. McMichael, AHRQ Reports 

Clearance Officer, (301) 594–3132.

SUPPLEMENTARY INFORMATION:

Proposed Project 

‘‘Needs Assessment of Primary Care 

Practice-Based Research Networks 

(PBRNs)’’

The project is being conducted in 

response to an AHRQ RFP entitled 

‘‘Resource Center for Primary Care 

Practice-Based Research Networks 

(PBRNs)’’ (issued under Contract 290–

02–0008). The Healthcare Research and 

Quality Act of 1999, amending section 

911(b) of Title IX of the Public Health 

Service Act (42 U.S.C. 299 et seq.), 

states that AHRQ will ‘‘employ research 

strategies and mechanisms that will link 

research directly with clinical practice 

in geographically diverse locations 

* * * including provider-based 

research network’’. 

In order to assist AHRQ in meeting 

this goal, AHRQ created an RFP that 

specifically requires a resource center to 

‘‘access the specific needs, if any, of 

each PBRN awarded (by AHRQ)’’ by 

determining ‘‘the stage of development 

of networks funded under the PBRN 

initiatives [AHRQ RFA–HS–02–003] 

and the specific resource needs of each 

network.’’

The PBRNs are groups of primary care 

practices working together with 

academic researchers to address 

community-based health care research 

questions and to translate research 

findings into practice to improve health 

care. AHRQ funded 36 PBRNs in 

September, 2002, as well as a Resource 

Center intended to provide technical 

assistance and support to the PMRNs in 

their efforts to design and implement 

research projects. It is expected that an 

additional 24 PBRNs will be funded in 

2003. In the proposed activities, the 

PBRN Resource Center will collect data 

directly from each PBRN and their 

affiliated practices. The collection is a 

needs assessment of each of the AHRQ 

funded PBRNs. The collection will 

identify how the Resource Center can 

best support these networks through the 

development and use of information 

technology, and by linking the PBRNs 

with appropriate technical experts. 

The in-depth needs assessment of 

each PBRN will use written and web 

surveys and telephone interviews. Each 

needs assessment will ascertain the 

current capabilities of an individual 

PBRN in several respects, including: 

• The ability to design and 

implement appropriately rigorous and 

complex research plans, including their 

access to key resources such as 

validated instruments and competence 

conducting advanced data analysis; 

• The technical capacity for 

conducting data management tasks such 

as aggregating research data across 

networks, developing data files, and 

warehousing data; 

• The ability to use information 

technology to foster effective 

communication with affiliated practices 

and with other research networks; 

• The ability to address HHS 

priorities such as research involving 

populations of diverse race or ethnicity, 

socioeconomic status, age, gender and 

geography as well as preparedness for 

bioterrorism and other emerging public 

health threats; 

• The ability to engage the network’s 

practicing clinicians and community 

represenatives in the design, conduct 

and dissemination of research studies; 

• The ability to design and 

implement data collection instruments 

in clinical settings; 

• The mechanisms for supporting 

AHRQ’s central goal of assuring new 

research findings are translated into 

everyday practice; and 

• Their capacity for long-term 

sustainability. 

To obtain the necessary information, 

surveys and interviews will be 

conducted with PBRN staff and staff 

members in each network’s 

participating practices. 

Method of Collection 

Due to the relatively small number of 

organizations in the respondent 

universe of AHRQ funded PBRNs, and 

the expected diversity of needs, we will 

survey all of the AHRQ funded PBRNs 

(including those to be funded in 2003). 

The method of data collection for the 

needs assessments consists of webbased and paper-based surveys and 

telephone interviews. We expect to 

involve multiple individuals from each 

PBRN in the data collection, including 

the PBRN administrator, information 

technology personnel, and the PBRN’s 

lead clinician as well as individuals 

with similar roles at the affiliated 

practice level. 

All individuals or networks unable to 

complete the survey via the Web will be 

sent a paper-based survey to complete 

and return by mail. The Resource Center 

will data enter any surveys completed 

by hand so that these responses can be 

included in the analyses. Nonrespondents will receive a telephone 

reminder and, if necessary, will be sent 

an additional survey.

ESTIMATED ANNUAL RESPONDENT BURDEN

Data collection effort Number of respondents 

Estimated time 

per respondent in 

hours 

Estimated total 

burden hours 

Average hourly 

wage rate 

Estimated annual 

cost to the

Government 

Needs assessment ..................... 180 (maximum of three 

individuals from each 

of 60 PBRNs).

1 180 *40.26 $7,246.80

Needs assessment ..................... 720 (maximum of two individuals at member 

practices PBRNs)***.

0.5 360 **45.77 16,477.20 

Total .................................... 900 .................................. 0.6 540

Footnotes: 

* Based on the mean of the average wages for manager in medicine and health, physicians, and computer systems analyst/scientist, National 

Compensation Survey: Occupational Wages in the United States, 2000, ‘‘U.S. Department of Labor, Bureau of Labor Statistics, September 

2001’’. 

** Based on the mean of the average wages for manager in medicine and health and physicians, ‘‘National Compensation Survey: Occupational Wages in the United States, 2000’’, ‘‘U.S. Department of Labor, Bureau of Labor Statistics, September 2001’’. 

*** This estimate assumes that variation exists in the number of member practices that comprise each PBRN. Consequently, we will survey two 

individuals (the lead clinician and the administrator) at each of three member practices in 20 PBRNs; in 20 PBRNs we will survey two individuals 

at each of six member practices; and in 20 PBRNs we will survey two individuals at each of nine member practices. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 785

Estimated Annual Costs to the Federal 

Government 

The total cost to the government for 

activities directly related to this data 

collection is $432,451.00. 

Request for Comments 

In accordance with the above cited 

legislation, comments on the AHRQ 

information collection proposal are 

requested with regard to any of the 

following: (a) Whether the proposed 

collection of information is necessary 

for the proper performance of functions 

of AHRQ, including whether the 

information will have practical utility; 

(b) the accuracy of AHRQ’s estimate of 

the burden (including hours and costs) 

of the proposed collection of 

information; (c) ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and (d) 

ways to minimize the burden of the 

collection of information on 

respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

Comments submitted in response to 

this notice will be summarized and 

included in the request for OMB 

approval of the proposed information 

collection. All comments will become a 

matter of public record.

Dated: December 30, 2002. 

Carolyn M. Clancy, 

Acting Director.

[FR Doc. 03–289 Filed 1–6–03; 8:45 am] 

BILLING CODE 4160–90–M

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Agency for Healthcare Research and 

Quality 

Notice of Meetings 

In accordance with section 10(d) of 

the Federal Advisory Committee Act as 

amended (5 U.S.C., Appendix 2), the 

Agency for Healthcare Research and 

Quality (AHRQ) announces meetings of 

scientific peer review groups. The 

subcommittees listed below are part of 

the Agency’s Health Services Research 

Initial Review Group Committee. 

The subcommittee meetings will be 

closed to the public in accordance with 

the Federal Advisory Committee Act, 

section 10(d) of 5 U.S.C., Appendix 2 

and 5 U.S.C. 552b(c)(6). Grant 

applications are to be reviewed and 

discussed at these meetings. These 

discussions are likely to involve 

information concerning individuals 

associated with the applications, 

including assessments of their personal 

qualifications to conduct their proposed 

projects. This information is exempt 

from mandatory disclosure under the 

above-cited statutes.

1. Name of Subcommittee: Health Care 

Research Training. 

Date: January 23–24, 2003 (Open from 8 

a.m. to 8:15 a.m. on January 23 and closed 

for remainder of the meeting). 

Place: AHRQ, 6010 Executive Boulevard, 

4th Floor Conference Center, Rockville, 

Maryland 20852.

2. Name of Subcommittee: Health Care 

Technology and Decision Sciences. 

Date: February 6–7, 2003 (Open from 8 

a.m. to 8:15 a.m. on February 6 and closed 

for remainder of the meeting). 

Place: AHRQ, 6010 Executive Boulevard, 

4th Floor Conference Center, Rockville, 

Maryland 20852.

3. Name of Subcommittee: Health Research 

Dissemination and Implementation. 

Date: February 10–11, 2003 (Open from 8 

a.m. to 8:15 a.m. on February 10 and closed 

for remainder of the meeting). 

Place: AHRQ, 6010 Executive Boulevard, 

4th Floor Conference Center, Rockville, 

Maryland 20852.

4. Name of Subcommittee: Health Systems 

Research. 

Date: February 24–25, 2003 (Open for 6 

p.m. to 6:15 p.m. on February 24 and closed 

for remainder of the meeting). 

Place: Doubletree Hotel, 1750 Rockville 

Pike, Conference Room TBD, Rockville, 

Maryland 20852 (For February 24 Meeting). 

AHRQ, 6010 Executive Boulevard, 4th Floor 

Conference Center, Rockville, Maryland 

20852 (For February 25 Meeting).

5. Name of Subcommittee: Health Care 

Quality and Effectiveness Research. 

Place: February 26–27, 2003 (Open from 7 

p.m. to 7:15 p.m. on February 26 and closed 

for remainder of the meeting). 

Place: Doubletree Hotel, 1750 Rockville 

Pike, Conference Room TBD, Rockville, 

Maryland 20852 (For February 26 Meeting). 

AHRQ, 6010 Executive Boulevard, 4th Floor 

Conference Center, Rockville, Maryland 

20852 (For February 27 Meeting).

Contact Person: Anyone wishing to obtain 

a roster of members, agenda or minutes of the 

nonconfidential portions of the meetings 

should contact Mrs. Bonnie Campbell, 

Committee Management Officer, Office of 

Research Review, Education and Policy, 

AHRQ, 2101 East Jefferson Street, Suite 400, 

Rockville, Maryland 20852, Telephone (301) 

594–1846. 

Agenda items for these meetings are 

subject to change as priorities dictate.

Dated: December 27, 2002. 

Carolyn M. Clancey, 

Acting Director.

[FR Doc. 03–288 Filed 1–6–03; 8:45 am] 

BILLING CODE 4160–90–M

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

[30DAY–17–03] 

Agency Forms Undergoing Paperwork 

Reduction Act Review 

The Centers for Disease Control and 

Prevention (CDC) publishes a list of 

information collection requests under 

review by the Office of Management and 

Budget (OMB) in compliance with the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35). To request a copy of these 

requests, call the CDC Reports Clearance 

Officer at (404) 498–1210. Send written 

comments to CDC, Desk Officer, Human 

Resources and Housing Branch, New 

Executive Office Building, Room 10235, 

Washington, DC 20503. Written 

comments should be received within 30 

days of this notice. 

Proposed Project: The National Birth 

Defects Prevention Study (OMB 0920–

0010)—Extension—National Center on 

Birth Defects and Developmental 

Disabilities (NCBDDD), Centers for 

Disease Control and Prevention (CDC) 

has been monitoring the occurrence of 

serious birth defects and genetic 

diseases in Atlanta since 1967 through 

the Metropolitan Atlanta Congenital 

Defects Program (MACDP). The MACDP 

is a population-based surveillance 

system for birth defects in the five 

counties of Metropolitan Atlanta. Its 

primary purpose is to describe the 

spatial and temporal patterns of birth 

defects occurrence and serve as an early 

warning system for new teratogens. 

From 1993 to 1996, NCBDDD conducted 

the Birth Defects Risk Factor 

Surveillance (BDRFS) study, a casecontrol study of risk factors for selected 

birth defects. Infants with birth defects 

were identified through MACDP and 

maternal interviews, and clinical/

laboratory tests were conducted on 

approximately 300 cases and 100 

controls per year. Controls were selected 

from among normal births in the same 

population. In 1997 the BDRFS became 

the National Birth Defects Prevention 

Study (NBDPS). The major components 

of the study did not change. 

The NBDPS is a case-control study of 

major birth defects that includes cases 

identified from existing birth defect 

surveillance registries in ten states 

(including metropolitan Atlanta). 

Control infants are randomly selected 

from birth certificates or birth hospital 

records. Mothers of case and control 

infants are interviewed using a 

computer-assisted telephone interview. 

Parents are asked to collect cheek cells 

786 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

from themselves and their infants for 

DNA testing. Information gathered from 

both the interviews and the DNA 

specimens will be used to study 

independent genetic and environmental 

factors as well as gene-environment 

interactions for a broad range of 

carefully classified birth defects.

This request is submitted to obtain 

approval for current NBDPS activities 

for three more years with one change 

indicated below: 

The CDC NBDPS currently 

remunerates participants for the biologic 

sample collection portion of the study. 

The cheek cell kits include $20.00 as an 

incentive to complete them and send 

them back. Overall, only 50% of 

participants completing the interview 

send in a completed cheek cell kit. 

While some subjects have stated that 

they do not wish to provide buccal 

samples due to their concerns about 

genetic testing, many subjects state that 

it is time consuming and difficult to 

remember to complete the kit and mail 

it back. An additional $20.00 incentive 

will be added that is linked to the return 

of the cheek cell kits. It is appropriate 

to have a higher level of compensation 

for those who spend the additional time 

to complete the cheek cell collection 

and return the kit than for those who 

only receive the kit and invest no time 

in further participation. This would 

make a total of $60.00 compensation 

($20.00 for the completing of the 

interview, $20.00 for receiving the 

cheek cell kit and $20.00 for returning 

the kit) for subjects who choose to 

complete the entire study including the 

return of the cheek cell samples for 

herself and the baby or for just herself 

if the baby is deceased. While samples 

are requested from the father, the third 

incentive would not be dependent on 

the cooperation of the father since this 

may pose a hardship to those mothers 

who are not in regular contact with the 

father. Given the time and 

inconvenience required for the entire 

study (interview and cheek cell), a total 

of $60.00 is an appropriate level of 

compensation. The additional $20.00 

money order is expected to increase the 

number of kits that are completed and 

returned and will be included in the 

thank you letter that each participant 

receives upon completion of the study. 

The estimated annualized burden is 

1600 hours.

Survey No. of

respondents 

No. of

responses/respondent 

Avg. burden/

response

(in hrs.) 

NBDPS Case/Control Interview ................................................................................................... 400 1 1 

Cheek Cell Collection (mother/father/infant) ............................................................................... 1,200 2 20/60 

Completion of Entire Study .......................................................................................................... 400 1 1 

Dated: December 31, 2002. 

Nancy E. Cheal, 

Acting Associate Director for Policy, Planning 

and Evaluation, Centers for Disease Control 

and Prevention.

[FR Doc. 03–227 Filed 1–6–03; 8:45 am] 

BILLING CODE 4163–18–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

[30DAY–14–03] 

Agency Forms Undergoing Paperwork 

Reduction Act Review 

The Centers for Disease Control and 

Prevention (CDC) publishes a list of 

information collection requests under 

review by the Office of Management and 

Budget (OMB) in compliance with the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35). To request a copy of these 

requests, call the CDC Reports Clearance 

Officer at (404) 498–1210. Send written 

comments to CDC, Desk Officer, Human 

Resources and Housing Branch, New 

Executive Office Building, Room 10235, 

Washington, DC 20503. Written 

comments should be received within 30 

days of this notice. 

Proposed Project: Cholera and Other 

Vibrio Illness Surveillance Report (OMB 

0920–0322)—Extension—National 

Center for Infectious Diseases (NCID), 

Centers for Disease Control and 

Prevention (CDC). Vibrio species are 

naturally occurring marine bacteria and 

an important cause of seafoodborne and 

wound associated illnesses. Certain 

Vibrio species (e.g., V. cholera, V. 

parahemolyticus) cause dehydrating 

diarrheal illnesses. In addition to 

endemic cholera in the United States, 

illnesses caused by epidemic strains of 

cholera are reported among travelers 

returning from southern Asia and Latin 

America. 

The data collected in this surveillance 

provides important information on the 

public health impact of vibriosis in the 

Gulf Coast States. FDA, which has 

regulatory responsibility for the safety of 

seafood, has requested these data to 

identify interventions that may reduce 

the burden of seafoodborne vibriosis. 

The data are also of interest to public 

and industry groups such as the 

Interstate Shellfish Sanitation 

Conference and the National Fisheries 

Institute. 

The annual burden hours are 

estimated to be 50.

Respondents No. of

respondents 

No. of

responses/

respondent 

Average

burden/

response

(in hours) 

Local Health Dept Staff ............................................................................................................... 90 1 20/60 

Health Care Facility Staff ............................................................................................................. 45 1 20/60 

Physicians .................................................................................................................................... 15 1 20/60 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 787

Dated: December 31, 2002. 

Nancy E. Cheal, 

Acting Associate Director for Policy, Planning 

and Evaluation, Centers for Disease Control 

and Prevention (CDC).

[FR Doc. 03–228 Filed 1–6–03; 8:45 am] 

BILLING CODE 4163–18–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Health Resources and Services 

Administration 

Statement of Organization, Functions 

and Delegations of Authority 

This notice amends Part R of the 

Statement of Organization Functions 

and Delegations of Authority of the 

Department of Health and Human 

Services (DHHS), Health Resources and 

Services Administration (HRSA) (60 FR 

56605 as amended November 6, 1995; as 

last amended at 67 FR 46519, July 15, 

2002). 

This notice establishes a centralized 

Division of Grants Management 

Operations (DGMO) within the Office of 

Management and Program Support 

(OMPS), removes the grants 

management functions in the Bureau of 

Primary Health Care, the Bureau of 

Health Professions, the Maternal Child 

Health Bureau and the HIV/AIDS 

Bureaus and moves them to a newly 

established Division of Grants 

Management Operations within the 

OMPS; establishes a centralized 

Division of Independent Review within 

the OMPS; abolishes the Office of Peer 

Review in the Bureau of Health 

Professions; abolishes the Division of 

Grants and Procurement Management 

within the OMPS; establishes a Division 

of Procurement Management within 

OMPS; moves the HRSA Small and 

Disadvantaged Business function from 

the Office of Equal Opportunity and 

Civil Rights to the newly established 

Division of Procurement Management 

within OMPS; moves the Office of 

International Health Affairs to the Office 

of the Administrator; establishes a 

Division of Border Health within the 

Office of International Health Affairs; 

establishes the Office of Financial 

Policy and Oversight (OFPO); changes 

the name of and revises the functional 

statement of the Office of Field 

Operations which becomes the Office of 

Performance Review; revises the 

functional statement for the Office of 

Planning and Evaluation; and revises 

the functional statements for the Bureau 

of Primary Health Care, the Bureau of 

Health Professions, the Maternal Child 

Health Bureau, the HIV/AIDS Bureau, 

and the Office of Special Programs to 

reflect the above changes. 

Section RA–00, Mission 

The Health Resources and Services 

Administration (HRSA) directs national 

health programs which improve the 

health of the Nation by assuring quality 

health care to underserved, vulnerable 

and special-need populations and by 

promoting appropriate health 

professions workforce capacity and 

practice, particularly in primary care 

and public health. 

Section RA–10, Organization 

The Office of the Administrator is 

headed by the Administrator, Health 

Resources and Services Administration 

(OA) who reports directly to the 

Secretary. The OA includes the 

following components: 

(1) Immediate Office of the 

Administrator (RA); 

(2) Office of Equal Opportunity and 

Civil Rights (RA2); 

(3) Office of Planning and Evaluation 

(RA5); 

(4) Office of Communications (RA6); 

(5) Office of Minority Health (RA9); 

(6) Office of Legislation (RAE);

(7) Office of Financial Policy and 

Oversight (RAJ) and; 

(8) Office of International Health 

Affairs (RAH) 

1. In the Office of the Administrator 

establish the Office of Financial Policy 

and Oversight as follows: 

Office of Financial Policy and Oversight 

(RAJ) 

Provides national leadership in the 

administration and assurance of the 

financial integrity of HRSA’s programs. 

Provides oversight over all HRSA 

activities to ensure that HRSA’s 

resources are being properly used and 

protected. Specifically, OFPO: (1) 

Serves as the Administrator’s principal 

source for grants policy and financial 

integrity of HRSA programs; (2) 

exercises oversight over the Agency’s 

business processes related to assistance 

programs; and (3) facilitates plans, 

directs and coordinates the 

administration of HRSA grant policies. 

2. Establish the Division of Financial 

Integrity in the Office of Financial 

Policy and Oversight as follows: 

Division of Financial Integrity (RAJ1) 

(1) Serves as the Agency’s focal point 

for coordinating financial audits of 

grantees; (2) coordinates the external 

financial assessment of HRSA grantees 

and the resolution of any audit findings; 

(3) conducts the pre- and post-award 

review of grant applicants’ and grantees’

accounting systems; (4) conducts ad hoc 

studies and reviews related to the 

financial integrity of the HRSA business 

processes related to assistance 

programs; (5) serves as the agency’s 

liaison with the Office of Inspector 

General for issues related to grants; (6) 

manages and maintains the Agency’s 

hot line for reporting fraudulent fiscal 

activities; and (7) establishes an 

assessment model for grantee oversight. 

3. Establish the Division of Grants 

Policy in the Office of Financial Policy 

and Oversight as follows: 

Division of Grants Policy (RAJ2) 

(1) Advises on grants policy issues 

and assists in the identification and 

resolution of grants policy issues and 

problems; (2) analyzes, develops and 

implements the Agency’s grants policy; 

(3) coordinates the review of 

Departmental grants policies and 

ensures that Agency policies and 

procedures are revised to reflect 

appropriate changes; (4) conducts 

review of the limited competition 

process; (5) monitors and reviews the 

Agency’s program application guidance; 

(6) serves as the grants liaison for the 

Agency’s electronic systems and 

processes; (7) coordinates the 

development of standardized 

documents and processes for the 

Agency related to grants; (8) reviews 

Agency programs for proper 

interpretation and timely 

implementation and application of 

grants management policies; and (9) 

serves as the coordinator for General 

Accounting Office and OIG studies on 

HRSA Programs.

4. Delete the functional statement for 

the Office of Planning and Evaluation 

(RA5) in its entirety and replace as 

follows: 

Office of Planning and Evaluation (RA5) 

The OPE (1) Serves as the 

Administrator’s primary staff unit for 

coordinating the agency’s strategic, 

evaluation and research planning 

processes; (2) oversees communication 

and maintains liaison between the 

Administrator, other OPDIVs, higher 

levels of the Department and other 

Departments on all matters involving 

analysis of program policy undertaken 

in the Agency; (3) prepares policy 

analysis papers and other planning 

documents as required in the 

Administration’s strategic planning 

process; (4) analyzes budgetary data 

with regard to planning guidelines; (5) 

collaborates in the development of 

budgets, performance plans, and 

performance reports required under the 

Government Performance and Results 

Act (GPRA); (6) coordinates activity 

related to the prevention agenda and 

788 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Healthy People activities; (7) analyzes 

and coordinates the information needs 

of the Agency; and (8) serves as the focal 

point for the advancement of managed 

care systems for safety net providers 

serving at-risk populations. 

5. Delete in its entirety the functional 

statement for the Office of International 

Health Affairs in the OMPS and 

establish the Office of International 

Health Affairs (RAH) in the Office of the 

Administrator as follows: 

Office of International Health Affairs 

(RAH) 

The Office of International Health 

Affairs serves as a focal point within the 

Health Resources and Services 

Administration (HRSA) for leadership, 

coordination, and advancement of 

international health activities relating to 

health care services for vulnerable and 

at-risk populations and for training 

programs for health professionals. The 

Office carries out the following 

functions in coordination with the 

Department and State Department to the 

extent authorized by laws within the 

authority of HRSA. Specifically, the 

OIHA: (1) Provides leadership within 

HRSA for the support for international 

health in coordinating policy 

development with other Departmental 

agencies; (2) provides technical and 

other support to HRSA components as 

they interface with Departmental 

international health activities; (3) 

develops working relationships with 

private sector providers and HRSA 

grantees to assure mutual areas of 

cooperation, maximization of expertise 

and coordination as it relates to 

international health; (4) advises the 

HRSA Administrator on strategies to 

maximize the participation of the 

Agency and its components in 

international health programs and 

activities; (5) works with foundations, 

private agencies and other Federal, 

State, and local agencies for the effective 

development of policies and resources 

relating to health care for vulnerable 

populations world-wide; and (6) 

coordinates international travel and 

visitor programs within the jurisdiction 

of HRSA. 

6. Establish the Division of Border 

Health within the Office of International 

Health Affairs as follows: 

Division of Border Health (RAH1) 

Provides leadership and direction to 

coordinate the Agency’s assets in border 

regions. Specifically, DBH: (1) Assures 

that the Agency’s engagement with 

regions of the border is strategic, 

performance based, builds partnerships 

and alliances, and maximizes utilization 

of Agency assets; (2) assures agencywide coordination by establishing 

border health program policies and 

procedures including tracking 

mechanisms; (3) conducts management 

and evaluation studies to improve the 

health delivery system on the border; (4) 

serves as the secretariat and chair for the 

Agency’s Border Health Workgroup; (5) 

plans, directs, and coordinates the 

Agency’s border health activities; and 

(6) plans, coordinates and facilitates the 

agency agreements activities with 

border health issues. 

7. Delete the functional statement for 

the Office of Equal Opportunity and 

Civil Rights (RA2) in its entirety and 

replace as follows: 

Office of Equal Opportunity and Civil 

Rights (RA2) 

Directs, coordinates, develops, and 

administers HRSA’s equal opportunity 

and civil rights activities. Specifically: 

(1) Provides advice, counsel, and 

recommendations to HRSA personnel, 

including regional divisions, on equal 

opportunity and civil rights and 

represents HRSA in all equal 

employment opportunity (EEO) areas; 

(2) administers affirmative action 

programs designed to ensure equality of 

opportunity in employment; (3) 

manages the Civil Service complaints 

system and prepares final HRSA 

decisions; (4) manages the complaints 

system for Public Health Service (PHS) 

Commissioned Corps personnel under 

the provisions of PHS Personnel 

Instruction 6 and issues proposed 

dispositions; (5) develops and directs 

implementation of the requirements of 

Section 504 of the Rehabilitation Act of 

1973, Title VI of the Civil Rights Act of 

1964, the Age Discrimination Act of 

1975 and the Americans With 

Disabilities Act, as they apply to 

recipients of HRSA funds; (6) provides 

technical assistance and guidance to 

HRSA on developing education and 

training programs regarding equal 

opportunity and civil rights; (7) 

approves settlement agreements and 

attorney fees; and (8) applies all 

applicable laws, guidelines, rules and 

regulations in accordance with those of 

the DHHS Office of Equal Employment 

Opportunity and Civil Rights. 

8. Revise the functional statement of 

the Office of Management and Program 

Support as follows: 

Office of Management and Program 

Support (RS) 

Provides agency-wide leadership, 

program direction, and coordination to 

all phases of management. Specifically, 

OMPS: (1) Provides management 

expertise and staff advice and support to 

the Administrator in program and 

policy formulation and execution; (2) 

plans, directs, and coordinates the 

Agency’s activities in the areas of 

administrative management, financial 

management, human resources 

management, including labor relations, 

debt management, procurement 

management, real and personal property 

accountability and management, 

alternative dispute resolution and 

administrative services; (3) directs and 

coordinates the development of policy 

and regulations; (4) oversees the 

development of annual operating 

objectives and coordinates HRSA work 

planning and appraisals; (5) plans, 

directs and carries out the independent 

review of grant applications for all of 

HRSA’s programs; (6) plans, directs and 

carries out the grants officer functions 

for all of HRSA’s programs; (7) directs 

and coordinates the Agency’s 

organization, functions and delegations 

of authority programs; and (8) 

administers the Agency’s Executive 

Secretariat and committee management 

functions.

9. In the Office of Management and 

Program Support delete the functional 

statement for the Division Grants and 

Procurement Management and establish 

the Division of Grants Management 

Operations as follows: 

Division of Grants Management 

Operations (RSA) 

(1) Exercises the sole responsibility 

within HRSA for all aspects of Grant 

and Cooperative Agreement receipt and 

award processes; (2) participates in the 

planning, development, and 

implementation of policies and 

procedures for grants and other federal 

financial assistance mechanisms; (3) 

provides assistance and technical 

consultation to program offices in the 

development and interpretation of laws, 

regulations, policies, and guidelines 

relative to the Agency’s grant and 

cooperative agreement programs; (4) 

develops standard operating procedures, 

methods and materials for the 

administration of the Agency’s grants 

programs; (5) establishes standards and 

guides for grants management 

operations; (6) reviews grantee financial 

status reports and prepares reports and 

analyses on the grantee’s use of funds; 

(7) provides technical assistance to 

applicants and grantees on financial and 

administrative aspects of grant projects; 

(8) provides data and analyses as 

necessary for budget planning, hearings, 

operational planning and management 

decisions; and (9) participates in the 

development of program guidance and 

instructions for grant competitions. 

10. Establish the Division of 

Procurement Management in the Office 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 789

of Management and Program Support as 

follows: 

Division of Procurement Management 

(RS4) 

Provides leadership in the planning, 

development, and implementation of 

policies and procedures for contracts. 

Specifically, DPM: (1) Exercises the sole 

responsibility within HRSA for the 

award and management of contracts; (2) 

provides advice and consultation of 

interpretation and application of the 

Department of Health and Human 

Services policies and procedures 

governing contracts management; (3) 

develops operating procedures and 

policies for the Agency’s contracts 

programs; (4) establishes standards and 

guides for and evaluates contracts 

operations throughout the Agency; (5) 

coordinates the Agency’s positions and 

actions with respect to the audit of 

contracts; (6) maintains liaison directly 

with or through Agency Bureaus or 

Offices with contractors, other 

organizations, and various components 

of the Department; and (7) provides 

leadership, guidance, and advice on the 

promotion of the activities in HRSA 

relating to procurement and material 

management governed by the Small 

Business Act of 1958, Executive Order 

11625, and other statutes and national 

policy directives for augmenting the role 

of private industry, and small and 

minority businesses as sources of 

supply to the Government and 

Government contractors.

11. Establish the Division of 

Independent Review within the Office 

of Management and Program Support as 

follows: 

Division of Independent Review (RS9) 

(1) Plans, directs and carries out 

HRSA’s independent review of 

applications for grants and cooperative 

agreement funding, and assures that the 

process is fair, open, and competitive; 

(2) develops, implements and maintains 

policies and procedures necessary to 

carry out the Agency’s independent 

review/peer review processes; (3) 

provides technical assistance to 

Independent Reviewers ensuring that 

reviewers are aware of and comply with 

the appropriate administrative policies 

and regulations; (4) provides technical 

advice and guidance to the Agency 

regarding the independent review 

processes; (5) coordinates and assures 

the development of program policies 

and rules relating to the HRSA’s 

extramural grant activities; and (6) 

provides HRSA Offices and Bureaus 

with the final disposition of all 

reviewed applications. 

12. Change the name of the Office of 

Field Operations and the names of its 

Field Offices and revise its functions as 

follows: 

Office of Performance Review (RE) 

Section RF–00, Mission 

The Mission of the Office of 

Performance Review (OPR) is to 

improve access to quality health care 

and reduce health disparities by 

effectively reviewing and enhancing the 

performance of HRSA-supported 

programs within communities and 

States. 

Section RF–10, Organization 

The OPR is comprised of a 

Headquarters unit and ten regional 

operating divisions. The Associate 

Administrator, who reports directly to 

the HRSA Administrator, heads the 

OPR. A Division Director, who reports 

directly to the Associate Administrator, 

heads each of the ten OPR regional 

operating divisions. The OPR is 

organized as follows:

1. Headquarters (RE) 

2. Regional Divisions (RF) 

a. Boston Regional Division (RF12) 

serves Connecticut, Maine, 

Massachusetts, New Hampshire, 

Rhode Island and Vermont.

b. New York Regional Division (RF13) 

serves New Jersey, New York, 

Puerto Rico and the United States 

Virgin Islands. 

c. Philadelphia Regional Division 

(RF11) serves Delaware, Maryland, 

Pennsylvania, Virginia, West 

Virginia and the District of 

Columbia. 

d. Atlanta Regional Division (RF21) 

serves Alabama, Florida, Georgia, 

Kentucky, Mississippi, North 

Carolina, South Carolina and 

Tennessee. 

e. Chicago Regional Division (RF 31) 

serves Illinois, Indiana, Michigan, 

Minnesota, Ohio and Wisconsin. 

f. Dallas Regional Division (RF 41) 

serves Arkansas, Louisiana, New 

Mexico, Oklahoma and Texas. 

g. Kansas City Regional Division 

(RF32) serves Iowa, Kansas, 

Missouri and Nebraska. 

h. Denver Regional Division (RF42) 

serves Colorado, Montana, North 

Dakota, South Dakota, Utah and 

Wyoming. 

i. San Francisco Regional Division 

(RF51) serves Arizona, California, 

Hawaii, Nevada, American Samoa, 

Commonwealth of the Northern 

Mariana Islands, Federated States of 

Micronesia, Guam, Republic of the 

Marshall Islands and the Republic 

of Palau. 

j. Seattle Regional Division (RF52) 

serves Alaska, Idaho, Oregon and 

Washington. 

Section RF–20, Function 

Serves as the Agency’s focal point for 

reviewing and enhancing the 

performance of HRSA-supported 

programs within communities and 

States. Specifically, OPR: (1) Tracks 

regional and State trends in public 

health, health care and health policy, 

analyzing the impact on HRSAsupported programs; (2) conducts 

grantee performance reviews, providing 

programmatic and business 

management assessments, 

recommendations, on-site technical 

assistance and best practice 

identification; (3) performs State and 

community strategic partnership 

reviews, examining the collective 

effectiveness of HRSA-supported 

programs and facilitating collaboration 

in addressing priority health needs; (4) 

provides recommendations and input 

on HRSA and selected Departmental 

program designs, policies and 

initiatives; and (5) exercises line 

management authority related to the 

general administrative and management 

functions of OPR. 

13. Revise the functional statement for 

the Maternal and Child Health Bureau 

(RM) as follows: 

Maternal and Child Health Bureau (RM) 

Provides national leadership and 

policy direction for the Maternal and 

Child Health Bureau programs. These 

programs are designed to improve the 

health of women of childbearing age, 

infants, children, adolescents, and their 

families, of children with special health 

needs, and of persons with hemophilia. 

Specifically, MCHB: (1) Coordinates the 

planning, development, implementation 

and evaluation of the programs and 

activities of the Bureau; (2) facilitates 

effective, collaborative relationships 

with other health and related programs; 

(3) establishes a program mission, goals, 

objectives and policy with broad 

Administration guidelines; (4) serves as 

the focal point for managing the Bureauwide strategic planning operation as it 

relates to long and short range 

programmatic goals and objectives for 

the Bureau; (5) arranges and provides 

technical assistance to assure that the 

grantees meet program expectations; (6) 

serves as principal contact to the 

Agency, the Department, Office of 

Management and Budget (OMB), and 

the White House on matters concerning 

the health status of America’s mothers 

and children; and (7) provides 

information and reports on the Bureau’s 

programs to public, health, education 

790 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

and related professional associations, 

the Congress, other Federal agencies, 

OMB, and the White House. 

14. In the Maternal and Child Health 

Bureau Office of Operations and 

Management delete the grants function 

and revise the Office of Operations and 

Management (RM1) as follows: 

Office of Operations and Management 

(RM1) 

Plans, directs, coordinates, and 

evaluates Bureau-wide administrative 

and management activities; coordinates 

and monitors program and 

administrative policy implementation 

and maintains close liaison with 

officials of the Agency, and the Office of 

the Secretary on matters relating to 

these activities. Specifically, OOM: (1) 

Serves as the Associate Administrator’s 

and Bureau’s principal source for 

management and administrative advice 

and assistance; (2) provides or serves as 

liaison for program support services 

and; (3) provides leadership on 

intergovernmental activities of the 

Bureau which requires central 

administrative direction or 

intergovernmental activities of the 

Bureau, which require central direction 

of cross-cutting administrative issues 

affecting program activities; (4) 

participates in the development of 

strategic plans, regulatory activities, 

policy papers, and legislative proposals 

relating to MCH programs; (5) plans, 

coordinates and facilitates the Bureau’s 

agency agreements activities; (6) 

coordinates human resource activities 

for the Bureau; (7) provides guidance to 

the Bureau on financial management 

activities; (8) determines State 

allocations of MCH Block Grant funds 

based on formula and current census 

data; (9) provides organization and 

management analysis, develops policies 

and procedures for internal operation, 

and interprets and implements the 

Administration’s management policies, 

procedures and systems; (10) 

coordinates the Bureau’s program and 

administrative delegations of authority 

activities; (11) provides staff services in 

the operational planning and program 

analysis; (12) is responsible for 

paperwork management functions, 

including the development and 

maintenance of bureau manual 

issuances; (13) provides direction 

regarding new developments in office 

management activities; and (14) 

coordinates Bureau funds and resources 

for grants, contracts and cooperative 

agreements. 

15. In the Maternal and Child Health 

Bureau revise the functions of the 

Division of State and Community Health 

(RM6) as follows: 

Division of State and Community Health 

(RM6) 

In collaboration with MCHB Divisions 

and Offices, serves as the organizational 

focus for the administration of 

responsibilities related to the MCH 

Block Grant to States Program. 

Specifically, DSCH: (1) Provides 

national leadership, direction, 

coordination, and administrative 

oversight related to the development 

and management of the State MCH 

Block Grant annual reports; (2) based on 

reviews of State Block grant 

applications and annual reports 

submitted by States, develops, plans, 

manages and monitors a Bureau-wide 

program of technical assistance and 

consultation in collaboration with other 

Bureau Divisions and related health 

programs; (3) develops and manages a 

program for the collection, analysis and 

dissemination of National and State 

Information and data to various 

constituencies including the public, 

States, and Congress about the Block 

Grant to States Program; (4) coordinates 

within this Agency and with other 

Federal programs (particularly Title XIX 

of the Social Security Act) to extend and 

improve comprehensive, coordinated 

services in the Block Grant to States 

Program; (5) develops, plans, manages 

and monitors the abstinence only 

education grant program to the States; 

(6) develops, plans, manages and 

monitors the State Systems 

Development Initiative (SSDI) grant to 

the States program; (7) participates in 

activities related to the Special projects 

of Regional and National Significance 

(SPRANS) program to facilitate the 

dissemination of effective knowledge 

related to State MCH functions; (8) 

monitors interagency agreements of 

Federal assignees to State MCH 

programs; (9) participates in the 

development of strategic plans, 

regulatory activities, policy papers, 

legislative proposals and budget 

submissions relating to health services 

for women of childbearing age, infants, 

children, adolescents, children with 

special health care needs and their 

families; (10) responsible for the 

administration of funds and other 

resources for grants, contracts, and 

cooperative agreements; and (11) 

develops Program Application and 

Guidance documents.

16. Delete the functional statement for 

the HIV/AIDS Bureau (RV) in its 

entirety and replace as follows: 

HIV/AIDS Bureau (RV) 

Provides leadership and direction for 

the HIV/AIDS programs and activities of 

the Bureau and oversees its relationship 

with other national health programs. 

Specifically: (1) Coordinates the 

formulation of an overall strategy and 

policy for HRSA AIDS programs; (2) 

coordinates the internal functions of the 

Bureau and its relationships with other 

national health programs; (3) establishes 

AIDS program objectives, alternatives, 

and policy positions consistent with 

broad Administration guidelines; (4) 

provides direction and leadership for 

the Agency’s AIDS grants and contracts 

programs; (5) reviews AIDS related 

program activities to determine their 

consistency with established policies; 

(6) represents the Agency and the 

Department at AIDS related meetings, 

conferences and task forces; (7) serves as 

principal contact and advisor to the 

Department and other parties concerned 

with matters relating to planning and 

development of health delivery systems 

related to HIV/AIDS; (8) develops and 

administers operating policies and 

procedures for the Bureau; (9) directs 

and coordinates Bureau Executive 

Secretariat activities; (10) directs the 

Center for Quality; (11) serves in 

developing and coordinating Telehealth 

programs and in facilitating electronic 

dissemination of best practices in health 

care to health care professionals; (12) 

provides grantees/States with accurate 

and timely interpretations of the 

Bureau’s program expectations, 

requirements, guidances, and Federal 

legislation; and (13) arranges and 

provides technical assistance to assure 

that the grantees meet program 

expectations. 

17. In the HIV/AIDS Bureau delete the 

functional statement for the Office of 

Program Support (RV2) in its entirety 

and replace as follows: 

Office of Program Support (RV2) 

Plans, directs, coordinates and 

evaluates Bureau-wide administrative 

and management support activities. 

Specifically, OPS: (1) Serves as the 

Bureau’s principal source for 

management and administrative advices 

and assistance; (2) assists in the 

development and administration of 

policies and procedures which govern 

the review and final recommendation 

for funding to the Associate 

Administrator; (3) provides guidance to 

the Bureau on financial management 

activities; (4) coordinates personnel 

activities for the Bureau and advises on 

the allocation of the Bureau’s personnel 

resources; (5) provides organization and 

management analysis for the Bureau, 

develops policies and procedures for 

internal Bureau requirements, and 

interprets and implements, the 

Administration’s management policies 

and procedures; (6) coordinates the 

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Bureau’s delegations of authority 

activities; (7) manages the Bureau’s 

performance management systems; (8) 

provides or arranges for the provision of 

support services such as supply 

management, space management, 

manual issuances, forms, records, 

reports, and supports civil rights 

compliance activities; (9) provides 

direction regarding technological 

developments in office management 

activities; and (10) manages the 

Bureau’s executive secretariat functions.

18. In the HIV/AIDS Bureau delete the 

functional statement for the Office of 

Science and Epidemiology (RV4) in its 

entirety and replace as follows: 

Office of Science and Epidemiology 

(RV4) 

Serves as the Bureau’s principal 

source on HIV epidemiologic 

surveillance, program data collection 

and evaluation, medical and biometric 

research, and the development of new 

models of HIV care. The Office 

coordinates with all HRSA HIV/AIDS 

programs on the development and 

implementation of science and 

epidemiology activities. Specifically: (1) 

Develops and directs long and short 

range scientific activities; (2) plans, 

directs, coordinates and administers the 

Bureau’s annual program evaluation 

strategy; (3) designs and implements 

special scientific studies of the impact 

and outcomes of Bureau health care 

programs; (4) carries out data collection 

and analysis activities that document 

the clients and services of Bureau 

programs; (5) collects and maintains 

information on the costs and quality 

associated with the Bureau’s health care 

programs; (6) directs and manages the 

implementation and evaluation of 

priority models of care through the 

Special Programs of National 

Significance (Title XXVI, Part F of the 

PHS Act), including developing 

Program Application and Guidance 

documents; (7) formulates and 

interprets program-related policies; (8) 

coordinates the documentation of all 

science, evaluation, and new models of 

care products with HRSA HIV/AIDS 

programs; (9) coordinates technical 

assistance plans and activities with the 

Division of Training and Technical 

Assistance and manages program 

specific technical assistance; (10) plans 

and develops collaborative efforts in the 

scientific aspects of Bureau programs 

with other HHS components, Federal 

departments, universities, and other 

scientific organizations; (11) organizes, 

guides and coordinates the Bureau’s 

scientific planning and development 

activities in epidemiology, research, and 

demonstrations; (12) plans and 

coordinates Bureau participation in 

scientific organizations, including 

scientific clearance of presentations and 

articles for publications; (13) studies 

and analyzes trends in health care, 

including availability, access 

distribution, organization, and financing 

to determine if the Bureau activities 

address HIV/AIDS issues in an effective, 

efficient manner; and (14) coordinates 

and consults with State and local health 

departments, other components of the 

Department, other Federal agencies and/

or outside groups on the 

implementation of Office programs. 

19. In the HIV/AIDS Bureau delete the 

functional statement for the Division of 

Service Systems (RV5) in its entirety 

and replace as follows: 

Division of Service Systems (RV5) 

Administers Bureau programs and 

activities and manages funds and other 

resources related to the provision of 

coordinated comprehensive HIV health 

care and support services, including 

reimbursement for treatment with lifeprolonging drugs, for persons with HIV/

AIDS. Specifically: (1) Directs and 

manages the implementation of Parts A 

and B of Title XXVI of the PHS Act 

including Emergency Relief Grants 

(Title I), HIV CARE Grants (Title II), and 

State AIDS Drug Assistance programs; 

(2) provides program implementation 

proposals and plans, and the 

interpretation of legislation and 

regulations; (3) monitors HIV services 

planning and delivery program in States 

and Cities and provides administrative, 

strategic, and programmatic direction to 

grantees to encourage efficient, 

coordinated treatment of persons with 

HIV infection; (4) develops Program 

Application and Guidance documents; 

(5) develops requirements, guidance and 

monitors State and territorial programs 

for medical therapies established to 

ensure that these treatments are 

integrated into the system of health care 

services; (6) promotes the development 

of State treatment program formularies 

that include classes of drugs necessary 

for the proper treatment of people with 

HIV infection; (7) formulates and 

interprets program related policies; (8) 

coordinates technical assistance plans 

and activities with the Division of 

Training and Technical Assistance; and 

(9) coordinates and consults with State 

and local health departments, other 

components of the Department, other 

Federal agencies and/or outside groups 

on the implementation of Division 

programs. 

20. In the HIV/AIDS Bureau delete the 

functional statement for the Division of 

Training and Technical Assistance 

(RV7) in its entirety and replace as 

follows: 

Division of Training and Technical 

Assistance (RV7) 

Coordinates, designs, directs and 

administers HIV/AIDS-related planning, 

training, technical assistance and 

extramural authorities and activities 

within the Agency. Advises on training 

and education activities pertaining to 

the administration of the Bureau’s 

programs. Specifically: (1) Directs and 

manages the implementation of the 

AIDS Education and Training Centers 

(AETC) program of the CARE Act, Title 

XXVI, Part F of the PHS Act; (2) 

identifies technical assistance needs and 

develops technical assistance packages, 

conducts programs, meetings, and 

activities to meet such needs; (3) 

convenes consultation meetings with 

grantees, providers, representatives of 

professional and political organizations, 

and advocacy groups; (4) develops 

Program Application and Guidance 

documents for the AETC program; (5) 

develops and manages mechanisms and 

resources to address technical assistance 

needs and support Division/Bureau 

technical assistance plans and 

programs; (6) formulates and interprets 

program-related policies; (7) coordinates 

and manages the Bureau’s HIV-related 

managed care activities; (8) serves as the 

Bureau’s focal points for advising and 

coordinating with advisory committees 

and other external organizations on 

policies regarding health care delivery 

and HIV/AIDS prevention, treatment, 

education and technical assistance; (9) 

develops outreach activities to assure 

that target populations are aware of the 

benefits and availability of HRSA HIV/

AIDS programs; (10) provides program 

implementation proposals and plans, 

and the interpretation of legislation and 

regulations; and (11) coordinates and 

consults with State and local health 

departments, other components of the 

Department, other Federal agencies and/

or outside groups on the 

implementation of Division programs. 

21. Revise the functional statement for 

the Bureau of Health Professions (RP) as 

follows: 

Bureau of Health Professions (RP) 

Provides national leadership in 

coordinating, evaluating, and 

supporting the development and 

utilization of the Nation’s health 

personnel. Specifically: (1) Assesses the 

Nation’s health personnel supply and 

requirements and forecasts supply and 

requirements for future time periods 

under a variety of health resources 

utilization assumptions; (2) collects and 

analyzes data and disseminates 

792 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

information on the characteristics and 

capacities of the Nation’s health 

personnel production systems; (3) 

proposes new or modifications to 

existing Departmental policies and 

programs related to health personnel 

development and utilization; (4) 

develops, tests and demonstrates new 

and improved approaches to the 

development and utilization of health 

personnel within various patterns of 

health care delivery and financing 

systems; (5) provides financial support 

to institutions and individuals for 

health professions education programs; 

(6) administers Federal programs for 

targeted health personnel development 

and utilization; (7) provides leadership 

for promoting equity and diversity in 

access to health services and health 

careers for under-represented minority 

groups; (8) provides technical 

assistance, consultation and special 

financial assistance to national, State, 

and local agencies, organizations, and 

institutions for the development, 

production, utilization, and evaluation 

of health personnel; (9) provides 

grantees/States with accurate and timely 

interpretations of the Bureau’s program 

expectations, requirements, guidances, 

and Federal legislation; (10) coordinates 

with the programs of other agencies 

within the Department, and in other 

Federal Departments and agencies 

concerned with health personnel 

development and health care services; 

(11) provides liaison and coordinates 

with non-Federal organizations and 

agencies concerned with health 

personnel development and utilization; 

(12) serves as a focus for technical 

assistance activities in the internal 

aspects of health personnel 

development; (13) administers the 

National Practitioner Data Bank 

Program; (14) administers the 

Healthcare Integrity and Protection Data 

Bank Program; (15) administers the 

Ricky Ray Hemophilia Relief Fund 

Program; (16) provides direction and 

leadership to the Children’s Hospitals 

Graduate Medical Education (CHGME) 

Payment Program; (17) administers the 

National Health Service Corps Program 

which assures accessibility of health 

care in underserved areas; (18) plans the 

activities of the National Health 

Services Corps Advisory Council; (19) 

administers the Public Health Service 

Scholarship Training Program and the 

National Health Service Corps 

Scholarship Loan Repayment Program; 

(20) administers the designation of 

health professional shortage areas and 

medically-underserved populations; 

(21) administers the Community 

Scholarship Program; (22) administers 

the State Loan Repayment Program; (23) 

administers the Nursing Education Loan 

Repayment program; and (24) provides 

direction and leadership for the Federal 

Credentialing Program.

22. In the Bureau of Health 

Professions abolish the Office of Peer 

Review (RPG). 

23. In the Bureau of Health 

Professions revise the functions of the 

Office of Program Support (RP1) as 

follows: 

Office of Program Support (RP1) 

Plans, directs, coordinates and 

evaluates Bureau-wide administrative 

management activities. Maintains close 

liaison with officials of the Bureau, 

Agency, the Office of Public Health and 

Science, and the Office of the Secretary 

on management and support activities. 

Specifically: (1) Serves as the Bureau’s 

principal source for management and 

administrative advice and assistance; (2) 

provides advice, guidance and 

coordinates personnel activities for the 

Bureau; (3) directs and coordinates the 

allocation of personnel resources; (4) 

provides organization and management 

analysis, develops policies and 

procedures for internal operation and 

interprets and implements the Bureau’s 

management policies, procedures and 

systems; (5) develops and coordinates 

Bureau program and administrative 

delegations of authority activities; (6) 

provides guidance to the Bureau on 

financial management activities; (7) 

provides Bureau-wide support services 

such as supply management, equipment 

utilization, printing, property 

management, space management, 

records management and management 

reports; (8) manages the Bureau’s 

performance management systems; and 

(9) develops general guidance and 

criteria related to the Bureau’s grant 

programs. 

24. In the Bureau of Health 

Professions revise the functions of the 

Division of National Health Service 

Corps (RPH) as follows: 

Division of National Health Service 

Corps (RPH) 

Provides (1) strategic planning and 

overall program policy guidance and 

oversight to the National Health Service 

Corps (NHSC); (2) initiates national 

program and policy changes, including 

regulatory and statutory amendments to 

ensure NHSC consistency with evolving 

national health care policy; (3) supports 

the NHSC National Advisory Council 

(NAC); (4) provides national NHSC 

leadership, integration and coordination 

with HRSA and other Departmental 

programs serving or impacting the 

Nation’s underserved communities and 

populations; (5) coordinates NHSC 

policy on primary and other health care 

manpower issues, and works with a 

wide variety of national, regional, State 

and local constituencies in ensuring 

their effective implementation; (6) 

directs and administers the Public 

Health Service Scholarship Training 

Program, the NHSC Loan Repayment 

Program and the NHSC Scholarship 

Program; (7) develops and implements 

program plans and policies and 

operating and evaluation plans and 

procedures; (8) monitors obligatory 

service requirements and conditions of 

deferment for compliance; (9) provides 

guidance and technical assistance for 

educational institutions on the NHSC 

scholarship program; (10) maintains 

liaison with, and provides assistance to, 

program-related public and private 

professional organizations and 

institutions; (11) coordinates financial 

aspects of programs with educational 

institutions; (12) develops program data 

needs, formats and reporting 

requirements including collection, 

collation, analysis and dissemination of 

data; (13) participates in the 

development of forward plans, and 

budgets including recruitment, 

deferment and service monitoring 

systems; and (14) develops Program 

Application and Guidance documents.

25. Revise the functional statement for 

the Bureau of Primary Health Care (RC) 

as follows: 

Bureau of Primary Health Care (RC) 

Provides national leadership in 

developing, coordinating, evaluating, 

and assuring access to comprehensive 

preventive and primary health care 

services and improving the health status 

of the Nations’ underserved and 

vulnerable populations. Specifically, the 

Bureau: (1) Assesses the Nation’s health 

care needs of underserved populations; 

(2) assists communities in providing 

quality health care services, 

demonstrating new and improved 

approaches for providing access to 

healthcare; (3) administers the 

Consolidated Health Center Program; (4) 

develops comprehensive integrated 

systems of care for underserved 

communities and populations; (5) 

decreases health disparities through the 

targeting of resources to those 

populations at increased risk of negative 

health outcomes; (6) promotes the 

integration of primary care services with 

mental health and dental health 

services; (7) develops innovative 

strategies for serving special 

populations and difficult to serve subpopulations; (8) provides leadership for 

promoting equity, diversity, and 

cultural competency in access to health 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 793

care services for underserved 

populations; (9) coordinates with 

various other organizations involved in 

health care access and utilization, 

integrated systems of care, and 

improvement of health status for 

underserved populations; (10) supports 

the efforts of other organizations in their 

efforts to meet the needs of vulnerable, 

under-served, and special populations; 

(11) provides policy leadership, 

programmatic direction and 

consultation on activities related to 

community-based primary health care; 

(12) administers the Black Lung Clinics 

Program and the Native Hawaiian 

Health Systems Program; (13) provides 

leadership and direction for the 

National Hansen’s Disease Program; (14) 

administers a national health-care 

program in support of the Immigration 

and Naturalization Service; and (15) 

administers the Section 340B Drug 

Pricing Program. 

26. In the Office of Special Programs 

(RR), delete the functional statement in 

its entirety and replace as follows: 

Office of Special Programs (RR) 

Provides the overall leadership and 

direction for the procurement 

allocation, and transplantation of 

human organs and bone marrow; 

programmatic, financial and 

architectural/engineering support for 

construction/renovation programs; 

operation of the Vaccine Injury 

Compensation Program and the State 

Planning Grants Program. Specifically: 

(1) Administers the Organ Procurement 

and Transplantation Network and the 

Scientific Registry of Transplant 

Recipients to assure compliance with 

Federal regulations and policies; (2) 

administers the National Marrow Donor 

Program in matching volunteer 

unrelated marrow donors for transplants 

and studying the effectiveness of 

unrelated marrow donors for transplants 

and related treatment; (3) develops and 

maintains a national program of grants 

and contracts to organ procurement 

organizations and other entities to 

increase the availability of various 

organs to transplant candidates; (4) 

manages national programs for 

compliance with uncompensated care 

and other assurances; (5) directs and 

administers Section 242 hospital 

mortgage insurance program (via interagency agreement with HUD) and HHS 

direct and guaranteed construction loan 

repayment; (6) directs and administers 

the construction/renovation/equipping 

of health care and other facilities; (7) 

directs and administers the National 

Vaccine Injury Compensation Program; 

and (8) directs and administers the State 

Planning Grants Program. 

Delegation of Authority 

All delegations of authority which 

were in effect immediately prior to the 

effective date hereof have been 

continued in effect in them or their 

successors pending further redelegation. 

I hereby ratify and affirm all actions 

taken by any DHHS official which 

involved the exercise of these 

authorities prior to the effective date of 

this delegation. 

This reorganization is effective 

December 23, 2002.

Dated: December 23, 2002. 

Elizabeth M. Duke, 

Administrator.

[FR Doc. 03–294 Filed 1–6–03; 8:45 am] 

BILLING CODE 4165–15–P

JUDICIAL CONFERENCE OF THE 

UNITED STATES 

Meeting of the Judicial Conference 

Advisory Committee on Rules of Civil 

Procedure

AGENCY: Judicial Conference of the 

United States Advisory Committee on 

Rules of Civil Procedure.

ACTION: Notice of open meeting.

SUMMARY: The Advisory Committee on 

Rules of Civil Procedure will hold a 

two-day meeting. The meeting will be 

open to public observation but not 

participation.

DATES: January 25–26, 2003.

TIME: 8:30 a.m. to 5 p.m.

ADDRESSES: The Hermosa Inn, 5532 

North Palo Cristi Road, Scottsdale, 

Arizona.

FOR FURTHER INFORMATION CONTACT: John 

K. Rabiej, Chief, Rules Committee 

Support Office, Administrative Office of 

the United States Courts, Washington, 

DC 20544, telephone (202) 502–1820.

Dated: December 30, 2002. 

John K. Rabiej, 

Chief, Rules Committee Support Office.

[FR Doc. 03–265 Filed 1–6–03; 8:45 am] 

BILLING CODE 2210–55–M

DEPARTMENT OF LABOR

Office of the Secretary 

Submission for OMB Review; 

Comment Request 

October 22, 2002. 

The Department of Labor (DOL) has 

submitted the following public 

information collection request (ICR) to 

the Office of Management and Budget 

(OMB) for review and approval in 

accordance with the Paperwork 

Reduction Act of 1995 (Pub. L. 104–13, 

44 U.S.C. Chapter 35). A copy of this 

ICR, with applicable supporting 

documentation, may be obtained by 

calling the Department of Labor. To 

obtain documentation, contact Darrin 

King on 202–693–4129 or E-Mail: KingDarrin@dol.gov. 

Comments should be sent to Office of 

Information and Regulatory Affairs, 

Attn: OMB Desk Officer for ETA, Office 

of Management and Budget, Room 

10235, Washington, DC 20503 (202–

395–7316), within 30 days from the date 

of this publication in the Federal 

Register. 

The OMB is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: Employment and Training 

Administration (ETA). 

Type of Review: Extension of a 

currently approved collection. 

Title: Unemployment Insurance Trust 

Fund Activity. 

OMB Number: 1205–0154. 

Affected Public: State, Local, or Tribal 

Government. 

Type of Response: Reporting.

794 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Form Number of

respondents Frequency Annual responses 

Total annual 

responses 

Average

response time 

(hours) 

Burden hours 

ETA–2112 ........................... 53 Monthly ............................... 12 636 0.5 318 

ETA–8401 ........................... 53 Monthly ............................... 12 636 0.5 318 

ETA–8403 ........................... 53 On occasion ....................... 6 318 0.5 159 

ETA–8405 ........................... 53 Monthly ............................... 12 636 0.5 318 

ETA–8413 ........................... 53 Monthly ............................... 12 636 0.5 318 

ETA–8414 ........................... 53 Monthly ............................... 12 636 0.5 318 

Totals ........................... ........................ ............................................. ........................ 3,498 ........................ 1,749 

Total Annualized Capital/Startup 

Costs: $0. 

Total Annual Costs (operating/

maintaining systems or purchasing 

services): $0. 

Description: Section 303(a)(4) of the 

Social Security Act (SSA) and section 

3304(a)(3) of the Federal Unemployment 

Tax Act (FUTA) require that all money 

received in the unemployment fund of 

a state be paid immediately to the 

Secretary of Treasury to the credit of the 

Unemployment Trust Fund (UTF). 

Section 303(a)(5) of the SSA and 

section 3304(a)(4) of the FUTA require 

that all money withdrawn from the UTF 

be used solely for the payment of 

unemployment compensation, exclusive 

of the expenses of administration. 

Section 303(a)(6) of the SSA gives the 

Secretary of Labor the authority to 

require the reporting of information 

deemed necessary to assure state 

compliance with the provisions of the 

SSA. Accordingly, the Secretary of 

Labor requires the following reports: 

• ETA 2112: UI Financial 

Transactions Summary, Unemployment 

Fund. 

• ETA 8401: Monthly Analysis of 

Benefit Payment Account. 

• ETA 8405: Monthly Analysis of 

Clearing Account. 

• ETA 8413: Income—Expense 

Analysis UC Fund, Benefit Payment 

Account. 

• ETA 8414: Income—Expense 

Analysis UC Fund, Clearing Account. 

• ETA 8403: Summary of Financial 

Transactions—Title IX Fund.

Ira L. Mills, 

Departmental Clearance Officer.

[FR Doc. 03–278 Filed 1–6–03; 8:45 am] 

BILLING CODE 4510–30–P

DEPARTMENT OF LABOR

Office of the Secretary 

Submission for OMB Review; 

Comment Request 

December 30, 2002. 

The Department of Labor (DOL) has 

submitted the following public 

information collection request (ICR) to 

the Office of Management and Budget 

(OMB) for review and approval in 

accordance with the Paperwork 

Reduction Act of 1995 (Pub. L. 104–13, 

44 U.S.C. Chapter 35). A copy of this 

ICR, with applicable supporting 

documentation, may be obtained by 

calling the Department of Labor. To 

obtain documentation, contact Marlene 

Howze on 202–693–4158 or E-Mail: 

Howze-Marlene@dol.gov. 

Comments should be sent to Office of 

Information and Regulatory Affairs, 

Attn: OMB Desk Officer for ETA, Office 

of Management and Budget, Room 

10235, Washington, DC 20503 (202–

395–7316), within 30 days from the date 

of this publication in the Federal 

Register. 

The OMB is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: Employment Standards 

Administration (ESA). 

Type of Review: Extension of a 

currently approved collection. 

Title: Payment of Compensation 

Without Award. 

OMB Number: 1215–0022. 

Affected Public: Business or other forprofit. 

Type of Response: Reporting. 

Frequency: On Occasion. 

Number Of Respondents: 900. 

Number of Annual Responses: 26,100. 

Estimated Time Per Response: 15 

minutes. 

Total Burden Hours: 6,525. 

Total Annualized Capital/Startup 

Cost: $0. 

Total Annual Costs (operating/

maintaining systems or purchasing 

services): $10,440.00. 

Description: The Office of Workers’

Compensation Programs (OWCP) 

administers the Longshore and Harbor 

Workers’ Compensation Act. This Act 

provides benefits to workers injured in 

maritime employment on the navigable 

waters of the United States or in an 

adjoining area customarily used by an 

employer in loading, unloading, 

repairing, or building a vessel. The 

OWCP district offices use the 

information provided on Form LS–206 

to determine the payment status of a 

given case. If the information were not 

collected, the OWCP would have no 

way of determining whether 

compensation payments had been made 

by liable insurance carriers and selfinsured employers.

Ira L. Mills, 

Departmental Clearance Officer.

[FR Doc. 03–279 Filed 1–6–03; 8:45 am] 

BILLING CODE 4510–CF–M

DEPARTMENT OF LABOR

Occupational Safety and Health 

Administration 

National Advisory Committee on 

Ergonomics

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor.

ACTION: Establishment of the National 

Advisory Committee on Ergonomics 

(NACE); notice of meeting. 

SUMMARY: The National Advisory 

Committee on Ergonomics is being 

established and chartered for a two year 

term. This committee is part of the 

Secretary’s comprehensive approach for 

reducing ergonomics-related injuries 

and illnesses in the workplace. The 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 795

Secretary may ask NACE to advise her 

on such matters as ergonomic 

guidelines, research, and outreach and 

assistance. This notice announces the 

selection of 15 persons to serve as 

members of NACE and schedules the 

first NACE meeting. The public is 

encouraged to attend.

DATES: The Committee will meet in 

Washington, DC on Wednesday, January 

22, 2003 from 9 a.m. until 

approximately 5 p.m.

ADDRESSES: The Committee will meet at 

the Washington Court Hotel, 525 New 

Jersey Avenue, NW., Washington, DC 

20001; Telephone (202) 628–2100. 

Mail comments, views, or statements 

in response to this notice to MaryAnn 

Garrahan, Director, Office of Technical 

Programs and Coordination Activities, 

OSHA, U.S. Department of Labor, Room 

N–3655, 200 Constitution Avenue, NW., 

Washington, DC 20210. Phone: (202) 

693–2144; Fax: (202) 693–1644.

FOR FURTHER INFORMATION CONTACT:

Bonnie Friedman, OSHA, Office of 

Public Affairs, Room N–3647, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210; 

Telephone: (202) 693–1999.

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 4, 2002, the Secretary of 

Labor announced her intention to 

establish a National Advisory 

Committee on Ergonomics to advise her 

in the following areas: (1) Various 

industry or task-specific guidelines; (2) 

identification of gaps in research 

applying ergonomic principles to the 

workplace; (3) current and projected 

research needs; (4) methods of 

providing outreach and assistance that 

will communicate the value of 

ergonomics to employers and 

employees; and (5) ways to increase 

communication among stakeholders on 

the issue of ergonomics. On May 2, 

2002, OSHA published a notice in the 

Federal Register requesting 

nominations for membership on NACE 

(67 FR 22121). 

II. Establishment 

In accordance with the provisions of 

the Federal Advisory Committee Act 

(FACA), as amended (5 U.S.C. App. 2) 

and after consultation with the General 

Services Administration (GSA), the 

Secretary of Labor has determined that 

the establishment of the National 

Advisory Committee on Ergonomics 

(NACE) is in the public interest, to 

advise the Secretary as to the 

performance of Departmental duties 

under the Occupational Safety and 

Health Act of 1970 (OSH Act), 29 U.S.C. 

651 et seq. Notice is hereby given that 

NACE is established for a period of two 

years and that the charter has been filed 

in accordance with 41 CFR 102–3.70. 

III. Appointment of Committee 

Members 

Over two hundred nominations of 

highly qualified individuals were 

received in response to the Agency’s 

request for nominations. Ergonomics 

involves a wide range of complex 

issues. 

For that reason, the Secretary has 

selected the following individuals who 

have a wide range of experience 

concerning the issues to be examined by 

the Committee. The NACE members are:

Edward Bernacki, M.D., M.P.H., 

Associate Professor and Director, 

Johns Hopkins Univ. School of 

Medicine, Baltimore, Maryland. 

Lisa M Brooks, C.I.E., Health and Safety 

Program Manager for International 

Paper, Memphis, Tennessee. 

Paul A. Fontana, President/CEO for 

Work Rehabilitation, Inc., Lafayette, 

Louisiana. 

Willis J. Goldsmith,. Esq., Jones, Day, 

Reavis & Pogue, Washington, DC. 

Morton L Kasdan,. M.D., Clinical 

Professor of Surgery, University of 

Louisville, Louisville, Kentucky. 

Carter J. Kerk, Ph.D., Associate Professor 

in Industrial Engineering, South 

Dakota School of Mines & 

Technology, Rapid City, South 

Dakota. 

James L. Koskan, MS, CSP, Corporate 

Director of Risk Control, SUPERVALU 

INC., Minneapolis, Minnesota.

George P. LaPorte, Ergonomics Manager, 

NATLSCO Loss Control Services, 

Division of Kemper Insurance 

Companies, Lake Zurich, Illinois. 

Barbara McCabe, Program Manager, 

Operating Engineers National Hazmat 

Program, Operating Engineers, Beaver, 

West Virginia. 

J. Dan McCausland, Consultant and 

Director, Worker Safety and Human 

Resources, American Meat Institute, 

Madison, Wisconsin. 

Audrey Nelson, Ph.D., RN, Center 

Director for VHA Patient Safety 

Center of Inquiry, Suncoast 

Development Research Evaluation 

Research Center on Safe Patient 

Transitions, Tampa, Florida. 

Lida Orta-Anes, Ph.D., Associate 

Professor, Graduate School of Public 

Health, University of Puerto Rico, San 

Juan, Puerto Rico. 

Roxanne Rivera, President and CEO, 

PMR Construction Services, Inc., 

Albuquerque, New Mexico. 

W. Corey Thompson, National Safety 

and Health Specialist, American 

Postal Workers Union, Washington, 

DC. 

Richard Wyatt, Ph.D., Associate 

Director, Aon Ergonomic Services, 

Huntsville, Alabama.

These individuals represent a broad 

range of interests, knowledge, and 

experience in the field of ergonomics, 

and the breadth of membership will 

assure that the Committee will be fairly 

balanced in terms of the points of view 

represented and the functions to be 

performed. 

III. Meeting Agenda 

The first meeting of NACE on January 

22, 2003, will include an introduction of 

the Committee members and an 

overview and brief history of OSHA’s 

activities related to ergonomics. The 

meeting will also include a discussion 

of OSHA’s efforts to develop ergonomic 

guidelines, and presentations on 

enforcement, outreach, and research 

issues. 

IV. Public Participation 

Written data, views, or comments for 

consideration by NACE on the various 

agenda items listed above may be 

submitted, preferably with copies, to 

MaryAnn Garrahan at the address listed 

above. Submissions received by January 

14, 2003 will be provided to the 

committee members for consideration. 

Requests to make oral presentations to 

the Committee may be granted if time 

permits. Anyone wishing to make an 

oral presentation to the Committee 

should notify MaryAnn Garrahan at the 

address noted above. The request 

should state the amount of time desired, 

the capacity in which the person will 

appear, and a brief outline of the 

content of the presentation. 

Persons with disabilities requiring 

special accommodations should contact 

Veneta Chatman (telephone: (202) 693–

1912; FAX (202) 693–1635) by January 

14, 2003. 

A transcript of the meeting will be 

available for inspection and copying in 

the OSHA Technical Data Center, Room 

N–2625 (see address section above) 

telephone: (202) 693–2350.

Authority: This notice was prepared under 

the direction of John L. Henshaw, Assistant 

Secretary for Occupational Safety and Health. 

It is issued under the Federal Advisory 

Committee Act (FACA) (5 U.S.C. App. 2), 

GSA’s FACA Regulations (41 CFR part 102–

3), and DLMS 3 Chapter 1600.

Signed at Washington, DC, this 30th day of 

December 2002. 

John L. Henshaw, 

Assistant Secretary of Labor.

[FR Doc. 03–277 Filed 1–6–03; 8:45 am] 

BILLING CODE 4510–26–P

796 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 70–143] 

Nuclear Fuel Services, Inc. Notice of 

Receipt of Amendment Request and 

Opportunity To Request a Hearing 

I. Introduction 

The U.S. Nuclear Regulatory 

Commission (NRC) has received, by 

letter dated October 11, 2002, a request 

from Nuclear Fuel Services, Inc., to 

amend its NRC Special Nuclear 

Materials License SNM–124, to 

authorize (1) processing operations in 

the Blended Low-Enriched Uranium 

Preparation Facility (BPF) and (2) minor 

administrative changes. The staff hereby 

provides notice of the request and issues 

a notice of opportunity to request a 

hearing on the amendment application. 

The request is the second of three 

license amendment requests planned to 

support operations associated with 

downblending and conversion of highenriched uranium materials to lowenriched uranium oxides. NFS is 

currently manufacturing high-enriched 

nuclear reactor fuel at its facility in 

Erwin, Tennessee. NFS is constructing a 

new complex at the Erwin site to 

manufacture low-enriched nuclear 

reactor fuel. NFS is requesting this 

amendment to authorize operations at 

the BPF that will prepare low-enriched 

uranium solutions for use in the new 

complex. The BPF operations will be 

conducted within the existing facility 

because that facility is already 

authorized to handle high-enriched 

material. After the high-enriched 

material is downblended and converted 

to a low-enriched uranium solution, it 

will be transferred from the BPF to the 

new complex. 

The October 11, 2002, amendment 

application contains an Integrated 

Safety Analysis (ISA) Summary for two 

of the eleven BPF operations. By letter 

dated October 14, 2002, NFS provided 

an ISA Summary addressing the 

remaining nine operations in the BPF. 

NFS excluded nine operations from the 

amendment request because NRC 

Special Nuclear Materials License 

SNM–124 already authorizes these 

operations in another building and NFS 

is relocating them to the BPF. By letter 

dated October 10, 2002, NFS provided 

revisions to their Emergency Plan to 

incorporate BPF operations. These three 

submittals comprise the content of the 

license amendment application. NFS 

also submitted revisions to their 

Fundamental Nuclear Material Control 

(FNMC) Plan by letter dated May 24, 

2002, and revisions to their Physical 

Safeguards Plan by letter dated October 

10, 2002. The FNMC Plan and Physical 

Safeguards Plan are being reviewed 

independently. 

This application will be reviewed by 

the staff for conformance with 10 CFR 

parts 20, 70, 73, and 74, using NUREG–

1520, ‘‘Standard Review Plan for the 

Review of a License Application for a 

Fuel Cycle Facility’’ and other 

applicable agency regulations and 

guidance. If NRC approves the request, 

the approval will be documented in an 

amendment to NRC Special Nuclear 

Materials License SNM–124. However, 

before approving the request, NRC will 

need to make the findings required by 

the Atomic Energy Act of 1954, as 

amended, and NRC regulations. These 

findings will be documented in a Safety 

Evaluation Report and either an 

Environmental Assessment (EA) or an 

Environmental Impact Statement. 

An EA, dated June 28, 2002, was 

issued to support the first amendment 

request for this project and may be 

looked to for additional information.

II. Notice of Availability of Amendment 

Request 

The following documents are 

available for public inspection and 

copying at the NRC Public Document 

Room, U.S. Nuclear Regulatory 

Commission Headquarters, Room O–1–

F–21, 11555 Rockville Pike, Rockville, 

MD 20852, or through the ADAMS 

computer system at http://www.nrc.gov/

reading-rm/adams.html using the 

accession numbers listed below: 

A. NFS License Amendment Request 

Dated October 11, 2002 

1. Cover Letter and Attachment 1, 

Proposed Changes to License SNM–124 

(ADAMS accession number 

ML022960038). 

2. Attachment III, Non-Proprietary 

Version of ISA Summary, Part 1 of 2 

(ADAMS accession number 

ML022960069). 

3. Attachment III, Non-Proprietary 

Version of ISA Summary, Part 2 of 2 

(ADAMS accession number 

ML023400228). 

B. ISA Summary for BPF Processes 

Dated October 14, 2002 

1. Cover Letter (ADAMS accession 

number ML023080301). 

2. Attachment II, Non-Proprietary 

Version of ISA Summary, Part 1 of 2 

(ADAMS accession number 

ML023090025). 

4. Attachment II, Non-Proprietary 

Version of ISA Summary, Part 2 of 2 

(ADAMS accession number 

ML023090170). 

C. Environmental Assessment for First 

License Amendment Dated June 28, 

2002 (ADAMS Accession Number 

ML021790068). 

Attachments II and IV of the NFS 

license amendment request dated 

October 11, 2002, contain proprietary 

information and are being withheld 

from the public pursuant to 10 CFR 

2.790. Attachment I of the ISA Summary 

for BPF Processes dated October 14, 

2002, contains proprietary information 

and is being withheld from the public 

pursuant to 10 CFR 2.790. The Physical 

Safeguards Plan and the Fundamental 

Nuclear Material Control Plan are 

confidential restricted data, as defined 

in 10 CFR 25.5, and are not publicly 

available. In addition, the Emergency 

Plan Revisions are sensitive, homeland 

security information, and are not 

publicly available. 

III. Notice of Opportunity To Request a 

Hearing 

NRC also provides notice that this is 

a proceeding on an application for an 

amendment of a license falling within 

the scope of 10 CFR part 2, subpart L, 

‘‘Informal Hearing Procedures for 

Adjudications in Materials and Operator 

Licensing Proceedings.’’ Pursuant to 

§ 2.1205(a), any person whose interest 

may be affected by this proceeding may 

file a request for a hearing. In 

accordance with § 2.1205(d), a request 

for hearing must be filed within 30 days 

of the publication of this notice in the 

Federal Register. The request for a 

hearing must be filed with the Office of 

the Secretary, either: 

A. By delivery to the Rulemaking and 

Adjudications Staff of the Office of the 

Secretary at One White Flint North, 

11555 Rockville Pike, Rockville, MD 

20852–2738, between 7:45 a.m. and 4:15 

p.m., Federal workdays; or

B. By mail or telegram addressed to 

the Secretary, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555, 

Attention: Rulemaking and 

Adjudications Staff. Because of 

continuing disruptions in the delivery 

of mail to United States Government 

offices, it is requested that requests for 

hearing be transmitted to the Secretary 

of the Commission either by means of 

facsimile transmission to 301–415–

1101, or by e-mail to 

hearingdocket@nrc.gov.

In accordance with 10 CFR 2.1205(f), 

each request for a hearing must also be 

served, by delivering it personally or by 

mail, to: 

A. The applicant, Nuclear Fuel 

Services, 1205 Banner Hill Road, Erwin, 

Tennessee 37650–9718. A copy of the 

request for hearing should also be sent 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 797

to the attorney for the licensee, Daryl 

Shapiro, c/o Shaw Pittman, L.L.P., 2300 

N Street, NW., Washington, DC 20037; 

and 

B. The NRC staff, by delivery to the 

Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, One 

White Flint North, 11555 Rockville 

Pike, Rockville, MD 20852–2738, 

between 7:45 a.m. and 4:15 p.m., 

Federal workdays, or by mail addressed 

to the Office of the General Counsel, 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555. Because of 

continuing disruptions in the delivery 

of mail to United States Government 

offices, it is requested that requests for 

hearing be transmitted to the Office of 

the General Counsel either by means of 

facsimile transmission to 301–415–

3725, or by e-mail to 

OGCMailCenter@nrc.gov.

In addition to meeting other 

applicable requirements of 10 CFR part 

2 of the NRC’s regulations, a request for 

a hearing filed by a person other than 

an applicant must describe in detail: 

A. The interest of the requestor in the 

proceeding; 

1. How that interest may be affected 

by the results of the proceeding, 

including the reasons why the requestor 

should be permitted a hearing, with 

particular reference to the factors set out 

in § 2.1205(h); 

2. The requestor’s areas of concern 

about the licensing activity that is the 

subject matter of the proceeding; and 

3. The circumstances establishing that 

the request for a hearing is timely in 

accordance with § 2.1205(d). 

IV. Technical Contact 

For further information, contact Mary 

T. Adams, Fuel Cycle Facilities Branch, 

Division of Fuel Cycle Safety and 

Safeguards, Office of Nuclear Material 

Safety and Safeguards, U.S. Nuclear 

Regulatory Commission, Mail Stop T–8–

A–33, Washington, DC 20555. 

Telephone (301) 415–7249.

Dated at Rockville, Maryland, this 31st day 

of December, 2002.

For the U.S. Nuclear Regulatory 

Commission. 

Daniel M. Gillen, 

Chief, Fuel Cycle Facilities Branch, Division 

of Fuel Cycle Safety and Safeguards, Office 

of Nuclear Material Safety and Safeguards.

[FR Doc. 03–264 Filed 1–6–03; 8:45 am] 

BILLING CODE 7590–01–P

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 40–8027–MLA–5 ASLBP No. 

03–807–01–MLA] 

Sequoyah Fuels Corporation; 

Designation of Presiding Officer 

Pursuant to delegation by the 

Commission, see 37 FR 28,710 (Dec. 29, 

1972), and the Commission’s 

regulations, see 10 CFR 2.1201, 2.1207, 

notice is hereby given that (1) a single 

member of the Atomic Safety and 

Licensing Board Panel is designated as 

Presiding Officer to rule on petitions for 

leave to intervene and/or requests for 

hearing; and (2) upon making the 

requisite findings in accordance with 10 

CFR 2.1205(h), the Presiding Officer 

will conduct an adjudicatory hearing in 

the following proceeding:

Sequoyah Fuels Corporation, Gore, 

Oklahoma (Materials License Amendment).

The hearing will be conducted 

pursuant to 10 CFR part 2, Subpart L, 

of the Commission’s Regulations, 

‘‘Informal Hearing Procedures for 

Adjudications in Materials and Operator 

Licensing Proceedings.’’ This 

proceeding concerns requests for 

hearing submitted (1) on December 14, 

2002, by Citizens Action for Safe 

Energy, Inc.; (2) on December 16, 2002, 

by the State of Oklahoma; (3) on 

December 16 by the Cherokee Nation; 

and (4) by fifteen other Oklahoma 

residents during December 2002. The 

requests were filed in response to a 

notice of consideration of an 

amendment request from Sequoyah 

Fuels Corporation to possess byproduct 

material, as defined in Atomic Energy 

Act section 11e.(2), at its Gore, 

Oklahoma facility site. The notice and 

opportunity for a hearing were 

published in the Federal Register on 

November 14, 2002 (67 FR 69,048). 

The Presiding Officer in this 

proceeding is Administrative Judge 

Alan S. Rosenthal. Pursuant to the 

provisions of 10 CFR. 2.722, 2.1209, 

Administrative Judge Thomas D. 

Murphy has been appointed to assist the 

Presiding Officer in taking evidence and 

in preparing a suitable record for 

review. 

All correspondence, documents, and 

other materials shall be filed with 

Judges Rosenthal and Murphy in 

accordance with 10 CFR 2.1203. Their 

addresses are: 

Alan S. Rosenthal, Administrative 

Judge, Presiding Officer, Atomic Safety 

and Licensing Board Panel, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001. 

Thomas D. Murphy, Administrative 

Judge, Special Assistant, Atomic Safety 

and Licensing Board Panel, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001.

Issued at Rockville, Maryland, this 31st 

day of December 2002. 

G. Paul Bollwerk, III, 

Chief Administrative Judge, Atomic Safety 

and Licensing Board Panel.

[FR Doc. 03–263 Filed 1–6–03; 8:45 am] 

BILLING CODE 7590–01–P

NUCLEAR REGULATORY 

COMMISSION 

Sunshine Notice

AGENCY: Nuclear Regulatory 

Commission.

DATES: Weeks of January 6, 13, 20, 27, 

February 3, 10, 2003.

PLACE: Commissioners’ Conference 

Room, 11555 Rockville Pike, Rockville, 

Maryland.

STATUS: Public and Closed.

Matters To Be Considered: 

Week of January 6, 2003

There are no meetings scheduled for 

the Week of January 6, 2003. 

Week of January 13, 2003—Tentative 

Tuesday, January 14, 2003

10 a.m. Discussion of security Issues 

(Closed-Ex. 1). 

2 p.m. Briefing on NRC Lessons 

Learned: Davis-Besse Reactor Vessel 

Head (RVH) Degradation (Public 

Meeting) (Contact: Stacey Rosenberg, 

301–415–1733). 

This meeting will be webcast live at 

the Web address—http://www.nrc.gov

Week of January 20, 2003—Tentative 

Thursday, January 23, 2003

2 p.m. Briefing on Status of Office of 

Nuclear Material Safety and Safeguards 

(NMSS) Programs, Performance, and 

Plans—Materials Safety (Public 

Meeting) (Contact: Claudia Seelig, 301–

415–7243) 

This meeting will be webcast live at 

the Web address—http://www.nrc.gov

Week of January 27, 2003—Tentative 

There are no meetings scheduled for 

the Week of January 27, 2003. 

Week of February 3, 2003—Tentative 

Tuesday, February 4, 2003

10 a.m. Briefing on Status of Office 

of the Chief Information Officer (OCIO) 

Programs, Performance, and Plans 

(Public Meeting) (Contact: Jackie Silber, 

301–415–7330) 

798 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

1The most recent version of Title 10 of the Code 

of Federal Regulations, published January 1, 2002, 

inadvertently omitted the last sentence of 10 CFR 

2.714 (d) and paragraphs (d)(1) and (d)(2) regarding 

petitions to intervene and contentions. For the 

complete, corrected text of 10 CFR 2.714 (d), please 

see 67 FR 20884; April 29, 2002.

This meeting will be webcast live at 

the Web address—http://www.nrc.gov

Week of February 10, 2003—Tentative 

Monday, February 10, 2003

10 a.m. Briefing on Status of Office 

of Nuclear Reactor Regulation (NRR) 

Programs, Performance, and Plans 

(Public Meeting) (Contact: Michael Case, 

301–415–1275) 

This meeting will be webcast live at 

the web address—http://www.nrc.gov

Tuesday, February 11, 2003

10 a.m. Briefing on Status of Office 

of the Chief Financial Officer (OCFO) 

Programs, Performance, and plans 

(Public Meeting) (Contact: Lars 

Solander, 301–415–6080) 

This meeting will be webcast live at 

the Web address—http://www.nrc.gov

*The schedule for Commission meetings is 

subject to change on short notice. To verify 

the status of meetings call (recording)—(301) 

415–1292. Contact person for more 

information: David Louis Gamberoni (301) 

415–1651.

The NRC Commission Meeting 

Schedule can be found on the Internet 

at: http://www.nrc.gov/what-we-do/

policy-making/schedule.html

This notice is distributed by mail to 

several hundred subscribers; if you no 

longer wish to receive it, or would like 

to be added to the distribution, please 

contact the Office of the Secretary, 

Washington, DC 20555 (301–415–1969). 

In addition, distribution of this meeting 

notice over the Internet system is 

available. If you are interested in 

receiving this Commission meeting 

schedule electronically, please send an 

electronic message to dkw@nrc.gov.

Dated: January 2, 2003. 

David Louis Gamberoni, 

Technical Coordinator, Office of the 

Secretary.

[FR Doc. 03–320 Filed 1–3–03; 12:17 pm] 

BILLING CODE 7590–01–M

NUCLEAR REGULATORY 

COMMISSION 

Biweekly Notice: Applications and 

Amendments to Facility Operating 

Licenses Involving No Significant 

Hazards Considerations 

I. Background 

Pursuant to Public Law 97–415, the 

U.S. Nuclear Regulatory Commission 

(the Commission or NRC staff) is 

publishing this regular biweekly notice. 

Public Law 97–415 revised section 189 

of the Atomic Energy Act of 1954, as 

amended (the Act), to require the 

Commission to publish notice of any 

amendments issued, or proposed to be 

issued, under a new provision of section 

189 of the Act. This provision grants the 

Commission the authority to issue and 

make immediately effective any 

amendment to an operating license 

upon a determination by the 

Commission that such amendment 

involves no significant hazards 

consideration, notwithstanding the 

pendency before the Commission of a 

request for a hearing from any person. 

This biweekly notice includes all 

notices of amendments issued, or 

proposed to be issued from, December 

13, through December 26, 2002. The last 

biweekly notice was published on 

December 24, 2002 (67 FR 78515). 

Notice of Consideration of Issuance of 

Amendments to Facility Operating 

Licenses, Proposed No Significant 

Hazards Consideration Determination, 

and Opportunity for a Hearing 

The Commission has made a 

proposed determination that the 

following amendment requests involve 

no significant hazards consideration. 

Under the Commission’s regulations in 

10 CFR 50.92, this means that operation 

of the facility in accordance with the 

proposed amendment would not (1) 

involve a significant increase in the 

probability or consequences of an 

accident previously evaluated; or (2) 

create the possibility of a new or 

different kind of accident from any 

accident previously evaluated; or (3) 

involve a significant reduction in a 

margin of safety. The basis for this 

proposed determination for each 

amendment request is shown below. 

The Commission is seeking public 

comments on this proposed 

determination. Any comments received 

within 30 days after the date of 

publication of this notice will be 

considered in making any final 

determination. 

Normally, the Commission will not 

issue the amendment until the 

expiration of the 30-day notice period. 

However, should circumstances change 

during the notice period such that 

failure to act in a timely way would 

result, for example, in derating or 

shutdown of the facility, the 

Commission may issue the license 

amendment before the expiration of the 

30-day notice period, provided that its 

final determination is that the 

amendment involves no significant 

hazards consideration. The final 

determination will consider all public 

and State comments received before 

action is taken. Should the Commission 

take this action, it will publish in the 

Federal Register a notice of issuance 

and provide for opportunity for a 

hearing after issuance. The Commission 

expects that the need to take this action 

will occur very infrequently. 

Written comments may be submitted 

by mail to the Chief, Rules and 

Directives Branch, Division of 

Administrative Services, Office of 

Administration, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555–

0001, and should cite the publication 

date and page number of this Federal 

Register notice. Written comments may 

also be delivered to Room 6D22, Two 

White Flint North, 11545 Rockville 

Pike, Rockville, Maryland, from 7:30 

a.m. to 4:15 p.m. Federal workdays. 

Copies of written comments received 

may be examined at the Commission’s 

Public Document Room (PDR), located 

at One White Flint North, 11555 

Rockville Pike (first floor), Rockville, 

Maryland. The filing of requests for a 

hearing and petitions for leave to 

intervene is discussed below. 

By February 6, 2003, the licensee may 

file a request for a hearing with respect 

to issuance of the amendment to the 

subject facility operating license and 

any person whose interest may be 

affected by this proceeding and who 

wishes to participate as a party in the 

proceeding must file a written request 

for a hearing and a petition for leave to 

intervene. Requests for a hearing and a 

petition for leave to intervene shall be 

filed in accordance with the 

Commission’s ‘‘Rules of Practice for 

Domestic Licensing Proceedings’’ in 10 

CFR Part 2. Interested persons should 

consult a current copy of 10 CFR 2.714,1

which is available at the Commission’s 

PDR, located at One White Flint North, 

11555 Rockville Pike (first floor), 

Rockville, Maryland. Publicly available 

records will be accessible from the 

Agencywide Documents Access and 

Management System’s (ADAMS) Public 

Electronic Reading Room on the Internet 

at the NRC web site, http://

www.nrc.gov/reading-rm/doccollections/cfr/. If a request for a hearing 

or petition for leave to intervene is filed 

by the above date, the Commission or an 

Atomic Safety and Licensing Board, 

designated by the Commission or by the 

Chairman of the Atomic Safety and 

Licensing Board Panel, will rule on the 

request and/or petition; and the 

Secretary or the designated Atomic 

Safety and Licensing Board will issue a 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 799

notice of a hearing or an appropriate 

order.

As required by 10 CFR 2.714, a 

petition for leave to intervene shall set 

forth with particularity the interest of 

the petitioner in the proceeding, and 

how that interest may be affected by the 

results of the proceeding. The petition 

should specifically explain the reasons 

why intervention should be permitted 

with particular reference to the 

following factors: (1) The nature of the 

petitioner’s right under the Act to be 

made a party to the proceeding; (2) the 

nature and extent of the petitioner’s 

property, financial, or other interest in 

the proceeding; and (3) the possible 

effect of any order which may be 

entered in the proceeding on the 

petitioner’s interest. The petition should 

also identify the specific aspect(s) of the 

subject matter of the proceeding as to 

which petitioner wishes to intervene. 

Any person who has filed a petition for 

leave to intervene or who has been 

admitted as a party may amend the 

petition without requesting leave of the 

Board up to 15 days prior to the first 

prehearing conference scheduled in the 

proceeding, but such an amended 

petition must satisfy the specificity 

requirements described above. 

Not later than 15 days prior to the first 

prehearing conference scheduled in the 

proceeding, a petitioner shall file a 

supplement to the petition to intervene 

which must include a list of the 

contentions which are sought to be 

litigated in the matter. Each contention 

must consist of a specific statement of 

the issue of law or fact to be raised or 

controverted. In addition, the petitioner 

shall provide a brief explanation of the 

bases of the contention and a concise 

statement of the alleged facts or expert 

opinion which support the contention 

and on which the petitioner intends to 

rely in proving the contention at the 

hearing. The petitioner must also 

provide references to those specific 

sources and documents of which the 

petitioner is aware and on which the 

petitioner intends to rely to establish 

those facts or expert opinion. Petitioner 

must provide sufficient information to 

show that a genuine dispute exists with 

the applicant on a material issue of law 

or fact. Contentions shall be limited to 

matters within the scope of the 

amendment under consideration. The 

contention must be one which, if 

proven, would entitle the petitioner to 

relief. A petitioner who fails to file such 

a supplement which satisfies these 

requirements with respect to at least one 

contention will not be permitted to 

participate as a party.

Those permitted to intervene become 

parties to the proceeding, subject to any 

limitations in the order granting leave to 

intervene, and have the opportunity to 

participate fully in the conduct of the 

hearing, including the opportunity to 

present evidence and cross-examine 

witnesses. 

If a hearing is requested, the 

Commission will make a final 

determination on the issue of no 

significant hazards consideration. The 

final determination will serve to decide 

when the hearing is held. 

If the final determination is that the 

amendment request involves no 

significant hazards consideration, the 

Commission may issue the amendment 

and make it immediately effective, 

notwithstanding the request for a 

hearing. Any hearing held would take 

place after issuance of the amendment. 

If the final determination is that the 

amendment request involves a 

significant hazards consideration, any 

hearing held would take place before 

the issuance of any amendment. 

A request for a hearing or a petition 

for leave to intervene must be filed with 

the Secretary of the Commission, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, Attention: 

Rulemaking and Adjudications Staff, or 

may be delivered to the Commission’s 

PDR, located at One White Flint North, 

11555 Rockville Pike (first floor), 

Rockville, Maryland, by the above date. 

Because of continuing disruptions in 

delivery of mail to United States 

Government offices, it is requested that 

petitions for leave to intervene and 

requests for hearing be transmitted to 

the Secretary of the Commission either 

by means of facsimile transmission to 

301–415–1101 or by e-mail to 

hearingdocket@nrc.gov. A copy of the 

request for hearing and petition for 

leave to intervene should also be sent to 

the Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, and 

because of continuing disruptions in 

delivery of mail to United States 

Government offices, it is requested that 

copies be transmitted either by means of 

facsimile transmission to 301–415–3725 

or by e-mail to OGCMailCenter@nrc.gov.

A copy of the request for hearing and 

petition for leave to intervene should 

also be sent to the attorney for the 

licensee. 

Nontimely filings of petitions for 

leave to intervene, amended petitions, 

supplemental petitions and/or requests 

for a hearing will not be entertained 

absent a determination by the 

Commission, the presiding officer or the 

Atomic Safety and Licensing Board that 

the petition and/or request should be 

granted based upon a balancing of 

factors specified in 10 CFR 

2.714(a)(1)(i)–(v) and 2.714(d). 

For further details with respect to this 

action, see the application for 

amendment which is available for 

public inspection at the Commission’s 

PDR, located at One White Flint North, 

11555 Rockville Pike (first floor), 

Rockville, Maryland. Publicly available 

records will be accessible from the 

Agencywide Documents Access and 

Management System’s (ADAMS) Public 

Electronic Reading Room on the Internet 

at the NRC web site, http://

www.nrc.gov/reading-rm/adams.html. If 

you do not have access to ADAMS or if 

there are problems in accessing the 

documents located in ADAMS, contact 

the NRC PDR Reference staff at 1–800–

397–4209, 304–415–4737 or by e-mail to 

pdr@nrc.gov.

Carolina Power & Light Company, 

Docket Nos. 50–325 and 50–324, 

Brunswick Steam Electric Plant, Units 1 

and 2, Brunswick County, North 

Carolina 

Date of amendment request:

November 13, 2002, as supplemented 

November 20, 2002 

Description of amendment request:

The proposed amendments delete 

requirements from the technical 

specifications (TS) and other elements 

of the licensing bases to maintain a PostAccident Sampling System (PASS). 

Licensees were generally required to 

implement PASS upgrades as described 

in NUREG–0737, ‘‘Clarification of TMI 

[Three Mile Island] Action Plan 

Requirements,’’ and Regulatory Guide 

1.97, ‘‘Instrumentation for Light-WaterCooled Nuclear Power Plants to Assess 

Plant and Environs Conditions During 

and Following an Accident.’’

Implementation of these upgrades was 

an outcome of the lessons learned from 

the accident that occurred at TMI Unit 

2. Requirements related to PASS were 

imposed by Order for many facilities 

and were added to or included in the TS 

for nuclear power reactors currently 

licensed to operate. Lessons learned and 

improvements implemented over the 

last 20 years have shown that the 

information obtained from PASS can be 

readily obtained through other means or 

is of little use in the assessment and 

mitigation of accident conditions. 

The changes are based on NRCapproved Technical Specification Task 

Force (TSTF) Standard Technical 

Specification Change Traveler, TSTF–

413, ‘‘Elimination of Requirements for a 

Post-Accident Sampling System 

(PASS).’’ The NRC staff issued a notice 

of opportunity for comment in the 

Federal Register on December 27, 2001 

(66 FR 66949), on possible amendments 

800 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

concerning TSTF–413, including a 

model safety evaluation and model no 

significant hazards consideration 

(NSHC) determination, using the 

consolidated line item improvement 

process. The NRC staff subsequently 

issued a notice of availability of the 

models for referencing in license 

amendment applications in the Federal 

Register on March 20, 2002 (67 FR 

13027). The licensee affirmed the 

applicability of the following NSHC 

determination in its application dated 

November 13, 2002. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), an 

analysis of the issue of no significant 

hazards consideration is presented 

below:

Criterion 1—The Proposed Change Does 

Not Involve a Significant Increase in the 

Probability or Consequences of an Accident 

Previously Evaluated. 

The PASS was originally designed to 

perform many sampling and analysis 

functions. These functions were designed 

and intended to be used in post accident 

situations and were put into place as a result 

of the TMI–2 accident. The specific intent of 

the PASS was to provide a system that has 

the capability to obtain and analyze samples 

of plant fluids containing potentially high 

levels of radioactivity, without exceeding 

plant personnel radiation exposure limits. 

Analytical results of these samples would be 

used largely for verification purposes in 

aiding the plant staff in assessing the extent 

of core damage and subsequent offsite 

radiological dose projections. The system 

was not intended to and does not serve a 

function for preventing accidents and its 

elimination would not affect the probability 

of accidents previously evaluated. 

In the 20 years since the TMI–2 accident 

and the consequential promulgation of post 

accident sampling requirements, operating 

experience has demonstrated that a PASS 

provides little actual benefit to post accident 

mitigation. Past experience has indicated that 

there exists in-plant instrumentation and 

methodologies available in lieu of a PASS for 

collecting and assimilating information 

needed to assess core damage following an 

accident. Furthermore, the implementation of 

Severe Accident Management Guidance 

(SAMG) emphasizes accident management 

strategies based on in-plant instruments. 

These strategies provide guidance to the 

plant staff for mitigation and recovery from 

a severe accident. Based on current severe 

accident management strategies and 

guidelines, it is determined that the PASS 

provides little benefit to the plant staff in 

coping with an accident. 

The regulatory requirements for the PASS 

can be eliminated without degrading the 

plant emergency response. The emergency 

response, in this sense, refers to the 

methodologies used in ascertaining the 

condition of the reactor core, mitigating the 

consequences of an accident, assessing and 

projecting offsite releases of radioactivity, 

and establishing protective action 

recommendations to be communicated to 

offsite authorities. The elimination of the 

PASS will not prevent an accident 

management strategy that meets the initial 

intent of the post-TMI–2 accident guidance 

through the use of the SAMGs, the 

emergency plan (EP), the emergency 

operating procedures (EOP), and site survey 

monitoring that support modification of 

emergency plan protective action 

recommendations (PARs). 

Therefore, the elimination of PASS 

requirements from Technical Specifications 

(TS) (and other elements of the licensing 

bases) does not involve a significant increase 

in the consequences of any accident 

previously evaluated.

Criterion 2—The Proposed Change Does 

Not Create the Possibility of a New or 

Different Kind of Accident from any 

Previously Evaluated. 

The elimination of PASS related 

requirements will not result in any failure 

mode not previously analyzed. The PASS 

was intended to allow for verification of the 

extent of reactor core damage and also to 

provide an input to offsite dose projection 

calculations. The PASS is not considered an 

accident precursor, nor does its existence or 

elimination have any adverse impact on the 

pre-accident state of the reactor core or post 

accident confinement of radioisotopes within 

the containment building. 

Therefore, this change does not create the 

possibility of a new or different kind of 

accident from any previously evaluated. 

Criterion 3—The Proposed Change Does 

Not Involve a Significant Reduction in the 

Margin of Safety. 

The elimination of the PASS, in light of 

existing plant equipment, instrumentation, 

procedures, and programs that provide 

effective mitigation of and recovery from 

reactor accidents, results in a neutral impact 

to the margin of safety. Methodologies that 

are not reliant on PASS are designed to 

provide rapid assessment of current reactor 

core conditions and the direction of 

degradation while effectively responding to 

the event in order to mitigate the 

consequences of the accident. The use of a 

PASS is redundant and does not provide 

quick recognition of core events or rapid 

response to events in progress. The intent of 

the requirements established as a result of the 

TMI–2 accident can be adequately met 

without reliance on a PASS. 

Therefore, this change does not involve a 

significant reduction in the margin of safety.

The NRC staff proposes to determine 

that the amendment request involves no 

significant hazards consideration. 

Attorney for licensee: William D. 

Johnson, Vice President and Corporate 

Secretary, Carolina Power & Light 

Company, Post Office Box 1551, 

Raleigh, North Carolina 27602. 

NRC Section Chief: Allen G. Howe. 

Duke Energy Corporation, Docket Nos. 

50–369 and 50–370, McGuire Nuclear 

Station, Units 1 and 2, Located in 

Mecklenburg County, North Carolina 

Date of amendment request:

December 2, 2002. 

Description of amendment request:

The proposed amendments would 

revise the Technical Specifications (TS) 

for Administrative Controls in Section 

5.0 concerning Responsibility, Unit 

Staff, Unit Staff Qualifications, and 

Controls of the High Radiation Area. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

As required by 10 CFR 50.91(a)(1), this 

analysis is provided to demonstrate that the 

proposed license amendment does not 

involve a significant hazard. 

Conformance of the proposed amendment 

to the standards for a determination of no 

significant hazards, as defined in 10 CFR 

50.92, is shown in the following: 

(1) Does the proposed license amendment 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated? 

No. Implementation of this amendment 

would not involve a significant increase in 

the probability or consequences of an 

accident previously evaluated. Approval of 

this amendment will have no effect on 

accident probabilities or consequences since 

the changes are purely administrative in 

nature. 

(2) Does the proposed change create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

No. Implementation of this amendment 

will not create the possibility of a new or 

different kind of accident from any accident 

previously evaluated. No new accident 

causal mechanisms are created as a result of 

NRC approval of this amendment request. No 

physical changes are being made to the plant. 

Therefore, the introduction of any new 

accident scenarios does not exist. The 

amendment does not impact any plant 

systems that are accident initiators nor does 

it adversely impact any accident mitigating 

system. This amendment is purely 

administrative in nature. 

(3) Does the proposed change involve a 

significant reduction in margin of safety? 

No. Implementation of this amendment 

will not involve a significant reduction in a 

margin of safety. Margin of safety is related 

to the confidence in the ability of the fission 

product barriers to perform their design 

functions during and following an accident 

situation. These barriers include the fuel 

cladding, the reactor coolant system, and the 

containment system. The performance of 

these fission product barriers will not be 

impacted by implementation of this 

amendment. System[s] and components are 

not affected and therefore are capable of 

performing as designed. This amendment is 

purely administrative nature, it will have no 

effect on any safety margins. 

Conclusion. 

Based on the preceding analysis, it is 

concluded that the proposed license 

amendment does not involve a Significant 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 801

Hazards Consideration Finding as defined in 

10 CFR 50.92.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Ms. Lisa F. 

Vaughn, Legal Department (PB05E), 

Duke Energy Corporation, 422 South 

Church Street, Charlotte, North Carolina 

28201–1006. 

NRC Section Chief: John A. Nakoski. 

Duke Energy Corporation, Docket Nos. 

50–369 and 50–370, McGuire Nuclear 

Station, Units 1 and 2, Located in 

Mecklenburg County, North Carolina 

Date of amendment request:

December 12, 2002. 

Description of amendment request:

The proposed amendments would 

revise the Technical Specifications (TS) 

for TS Table 3.3.2–1 Footnote (c) to 

correct an editorial error, TS 3.4.3 is 

revised to update the Reactor Coolant 

System Pressure-Temperature limits for 

use up to 34 Effective Full Power Years 

(EFPY) and TS 3.4.12 is revised to 

update the Low Temperature OverPressure limits for use up to 34 EFPY. 

Associated changes are also proposed 

for the TS Bases. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

Duke has evaluated whether or not a 

significant hazards consideration is involved 

with the proposed amendments by focusing 

on the three standards set forth in 10 CFR 

50.92, ‘‘issuance of amendment,’’ as 

discussed below: 

1. Does the proposed change involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated? 

Response: No. 

The proposed changes to the reactor 

coolant system (RCS) pressure and 

temperature (P–T) limits and low 

temperature overpressure protection (LTOP) 

limits are developed utilizing the 

methodology of American Society of 

Mechanical Engineers (ASME) Section XI, 

Appendix G, in conjunction with the 

methodology of ASME Code Case N–641. 

Usage of these methodologies provides 

compliance with the underlying intent of 10 

CFR [Part] 50 Appendix G and provides 

operational limits established to prevent nonductile failure of the reactor vessel. The Loss 

of Coolant Accident analysis and other 

accident analyses in the Updated Final Safety 

Analysis Report (UFSAR) do not assume 

failure of the reactor vessel. The P–T and 

LTOP limits are not initiators or contributors 

to accident analyses addressed in the 

UFSAR. The proposed changes do not alter 

any assumption previously made in the 

radiological consequence evaluations nor 

affect the mitigation of the radiological 

consequences of an accident previously 

evaluated. Therefore, the proposed changes 

do not involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

2. Does the proposed change create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

Response: No. 

The changes to RCS P–T limits and LTOP 

limits are proposed to prevent non-ductile 

failure of the reactor vessel. The proposed 

changes do not modify the RCS pressure 

boundary, nor make any physical changes to 

the facility. The proposed changes do not 

introduce any new mode of system operation 

or failure mechanism. Therefore, the 

proposed changes do not create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

3. Does the proposed change involve a 

significant reduction in a margin of safety? 

Response: No. 

The proposed changes are developed 

utilizing the methodology of ASME Section 

XI, Appendix G, in conjunction with the 

methodology of ASME Code Case N–461. 

Usage of these methodologies provides 

compliance with the underlying intent of 10 

CFR [Part] 50 Appendix G and provides 

operational limits established to prevent nonductile failure of the reactor vessel. This 

Code case constitutes relaxation from the 

current requirements of 10 CFR [Part] 50 

Appendix G. The alternate methodology 

allowed by the Code case is based on 

industry experience gained since the 

inception of the 10 CFR [Part] 50 Appendix 

G requirements and replaces some 

requirements that have now been determined 

to be excessively conservative. The more 

appropriate assumptions and provisions 

allowed by the Code case maintain a margin 

of safety that is consistent with the intent of 

10 CFR [Part] 50 Appendix G. Therefore, the 

proposed changes do not involve a 

significant reduction in a margin of safety.

Based on the above, Duke concludes that 

the proposed amendments present no 

significant hazards consideration under the 

standards set forth in 10 CFR 50.92(c), and, 

accordingly, a finding of ‘‘no significant 

hazards consideration’’ is justified.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Ms. Lisa F. 

Vaughn, Legal Department (PB05E), 

Duke Energy Corporation, 422 South 

Church Street, Charlotte, North Carolina 

28201–1006. 

NRC Section Chief: John A. Nakoski. 

Entergy Nuclear Operations, Docket No. 

50–247, Indian Point Nuclear 

Generating Unit No. 2, Westchester 

County, New York 

Date of amendment request:

December 12, 2002. 

Description of amendment request:

The proposed amendment would revise 

the Facility Operating License and 

Technical Specifications (TSs) to 

increase the licensed core thermal 

power level to 3114.4 megawatts (MWt), 

which is a 1.4% increase above the 

currently authorized power level of 

3071.4 MWt. The proposed power 

uprate involves the improvement in the 

core power uncertainty allowance 

originally required for the emergency 

core cooling system (ECCS) evaluations 

performed in accordance with 

Appendix K, ‘‘ECCS Evaluation 

Models,’’ to Part 50 of Title 10 of the 

Code of Federal Regulations. In 

addition, changes would be made in TS 

Sections 1.1, 2.1, 2.3, 3.1, 3.4, 6.9, and 

the applicable TS Bases would be 

revised to account for the change in 

power level. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. Does the proposed change involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated? 

Response: No. 

The proposed 1.4% increase in maximum 

core thermal power is based on the use of 

instrumentation that supports a reduction in 

the measurement uncertainty value assumed 

in certain safety analyses. The affected 

analyses now use an uncertainty value of 2% 

which was required by 10 CFR [Part] 50 

Appendix K at the time that the plant was 

originally licensed. At that time, 

measurement of feedwater flowrate in the 

plant secondary side used differential 

pressure-type flow venturis. The plant 

secondary side thermal calorimetric is used 

to determine reactor thermal power. A June 

2000 revision to 10 CFR [Part] 50 Appendix 

K permitted the use of lower uncertainty 

values in the affected analyses, if the reduced 

value can be justified. Entergy Nuclear 

Operations (ENO) has implemented the use 

of Caldon, Inc. Leading Edge Flowmeter 

(LEFM) technology to measure feedwater 

flowrate. The LEFM measures fluid velocity 

by measuring the transit time of ultrasonic 

pulses introduced into the fluid stream. The 

LEFM Check System implemented at Indian 

Point 2 has a demonstrated measurement 

accuracy of 0.6%. Based on this 

measurement accuracy, the licensed thermal 

power can be increased 1.4% by reducing the 

assumed uncertainty used in safety analyses 

802 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

with respect to core thermal power from 

2.0% to 0.6%. This results in a net increase 

in licensed reactor core thermal power; from 

3071.4 MWt to 3114.4 MWt. The LEFM and 

the flow venturi instrumentation are used to 

collect data and there is no automatic 

initiation function performed by this 

instrumentation. Use of the LEFM 

instrumentation is therefore not an accident 

initiator and does not increase the probability 

of occurrence of an existing analyzed 

accident. Also, the LEFM instrumentation 

and the venturi instrumentation do not 

mitigate accidents so that the consequences 

of previously analyzed accidents are not 

increased. 

Analyses and evaluations associated with 

the proposed change to core thermal power 

have demonstrated that applicable 

acceptance criteria for plant systems, 

components, and analyses (including the 

Final Safety Analysis Report [FSAR] Chapter 

14 safety analyses) will continue to be met 

for the proposed 1.4% increase in licensed 

core thermal power for Indian Point 2. The 

subject increase in core thermal power will 

not result in conditions that could adversely 

affect the integrity (material, design, and 

construction standards) or the operational 

performance of any potentially affected 

system, component or analysis. Therefore, 

the probability of an accident previously 

evaluated is not affected by this change. The 

subject increase in core thermal power will 

not adversely affect the ability of any safetyrelated system to meet its intended safety 

function. Further, the radiological dose 

evaluations in support of this power uprate 

effort show that the current FSAR Chapter 14 

radiological analyses are unaffected, and that 

the current dose analyses of record bound 

plant operation with the subject increase in 

licensed core thermal power level. 

Therefore, the proposed change does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

2. Does the proposed change create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

Response: No. 

The proposed license amendment 

increases the maximum allowed core thermal 

power through the use of feedwater flow 

instrumentation that supports a reduction in 

the measurement uncertainty assumed in 

certain safety analyses. The LEFM Check 

System instrumentation has greater 

measurement accuracy than the differential 

pressure-type flow venturi instrumentation 

that was originally used so that the 

measurement uncertainty assumed in certain 

analyses can be correspondingly reduced. 

Both the venturi and LEFM flow 

instrumentation provide data that is used by 

plant operators to monitor the thermal output 

of the plant. The instrumentation does not 

perform an automatic actuation function and 

there are no output signals to plant safety 

systems or control systems. Therefore, 

instrumentation malfunction or failure does 

not introduce new accident scenarios or 

equipment failure mechanisms. Operation, 

maintenance, or failure of either 

instrumentation system does not have an 

adverse effect on safety-related systems or 

any structures, systems, and components 

required for transient or accident mitigation. 

Operating the plant at a new maximum 

core thermal power of 3114.4 MWt, which is 

1.4% greater than the current maximum of 

3071.4 MWt, is bounded by existing or 

updated analyses which demonstrate that 

established limits and acceptance criteria 

continue to be met. Operating at the new 

power level does not create new or different 

accident initiators and existing credible 

malfunctions are bounded by existing or 

updated analyses or evaluations. 

Therefore, the proposed change does not 

create the possibility of a new or different 

kind of accident from any previously 

evaluated. 

3. Does the proposed change involve a 

significant reduction in a margin of safety? 

Response: No. 

The evaluations and analyses associated 

with the proposed increase in maximum core 

thermal power demonstrate that applicable 

acceptance criteria will continue to be met. 

The existing licensed maximum core thermal 

power level incorporates a 2% measurement 

uncertainty for the analysis of loss-ofcoolant-accidents as originally required by 

Appendix K of 10 CFR [Part] 50. The 

regulations have subsequently been revised 

to allow the option of justifying smaller 

measurement uncertainties by using more 

accurate instrumentation to calculate reactor 

thermal power. Certain analyses that already 

assume a bounding core power level because 

of the 2% measurement uncertainty are not 

changed as a result of the proposed increase 

in core thermal power. Use of the LEFM 

instrumentation with improved measurement 

accuracy supports the use of a smaller 

measurement uncertainty assumption in the 

safety analyses. Other analyses were updated 

or evaluations were performed to 

demonstrate that nuclear steam supply and 

balance-of-plant systems and components 

will continue to perform, under normal and 

credible transient conditions, within 

established limits. 

Therefore, the proposed change does not 

involve a significant reduction in a margin of 

safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Mr. John Fulton, 

Assistant General Counsel, Entergy 

Nuclear Operations, Inc., 440 Hamilton 

Avenue, White Plains, NY 10601. 

NRC Section Chief: Richard J. Laufer. 

Exelon Generation Company, LLC, 

Docket No. 50–353, Limerick Generating 

Station, Unit 2, Montgomery County, 

Pennsylvania 

Date of amendment request:

November 21, 2002. 

Description of amendment request:

Exelon Generation Company, LLC, the 

licensee, is proposing a change to the 

Limerick Generating Station (LGS), Unit 

2, Technical Specifications (TSs) 

contained in Appendix A to the 

Operating License. This proposed 

change will revise the TS section on 

safety limits to incorporate revised 

safety limit minimum critical power 

ratios (SLMCPRs) due to the cyclespecific analysis performed by Global 

Nuclear Fuel for LGS, Unit 2, Cycle 8. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. The proposed TS change does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

The derivation of the cycle specific Safety 

Limit Minimum Critical Power Ratios 

(SLMCPRs) for incorporation into the 

Technical Specifications (TS), and their use 

to determine cycle specific thermal limits, 

has been performed using the methodology 

discussed in ‘‘General Electric Standard 

Application for Reactor Fuel,’’ NEDE–24011–

P–A–14 (GESTAR–II), and U.S. Supplement, 

NEDE–24011–P–A–14–US, June, 2000, which 

incorporates Amendment 25. Amendment 25 

was approved by the NRC [Nuclear 

Regulatory Commission] in a March 11, 1999 

safety evaluation report. 

The basis of the SLMCPR calculation is to 

ensure that greater than 99.9% of all fuel rods 

in the core avoid transition boiling if the 

limit is not violated. The new SLMCPRs 

preserve the existing margin to transition 

boiling. The GE–14 fuel is in compliance 

with Amendment 22 to ‘‘General Electric 

Standard Application for Reactor Fuel,’’

NEDE–24011–P–A–14 (GESTAR–II), and U.S. 

Supplement, NEDE–24011–P–A–14–US, 

June, 2000, which provides the fuel licensing 

acceptance criteria. The probability of fuel 

damage will not be increased as a result of 

this change. Therefore, the proposed TS 

change does not involve a significant 

increase in the probability or consequences 

of an accident previously evaluated. 

2. The proposed TS change does not create 

the possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

The SLMCPR is a TS numerical value, 

calculated to ensure that transition boiling 

does not occur in 99.9% of all fuel rods in 

the core if the limit is not violated. The new 

SLMCPRs are calculated using NRC approved 

methodology discussed in ‘‘General Electric 

Standard Application for Reactor Fuel,’’

NEDE–24011–P–A–14 (GESTAR–II), and U.S. 

Supplement, NEDE–24011–P–A–14–US, 

June, 2000, which incorporates Amendment 

25. Additionally, the GE–14 fuel is in 

compliance with Amendment 22 to ‘‘General 

Electric Standard Application for Reactor 

Fuel,’’ NEDE–24011–P–A–14 (GESTAR–II), 

and U.S. Supplement, NEDE–24011–P–A–

14–US, June 2000, which provides the fuel 

licensing acceptance criteria. The SLMCPR is 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 803

not an accident initiator, and its revision will 

not create the possibility of a new or different 

kind of accident from any accident 

previously evaluated. 

3. The proposed TS change does not 

involve a significant reduction in a margin of 

safety. 

There is no significant reduction in the 

margin of safety previously approved by the 

NRC as a result of the proposed change to the 

SLMCPRs, which includes the use of GE–14 

fuel. The new SLMCPRs are calculated using 

methodology discussed in ‘‘General Electric 

Standard Application for Reactor Fuel,’’

NEDE–24011–P–A–14 (GESTAR–II), and U.S. 

Supplement, NEDE–24011–P–A–14–US, 

June, 2000, which incorporates Amendment 

25. The SLMCPRs ensure that greater than 

99.9% of all fuel rods in the core will avoid 

transition boiling if the limit is not violated 

when all uncertainties are considered, 

thereby preserving the fuel cladding 

integrity. Therefore, the proposed TS change 

will not involve a significant reduction in the 

margin of safety previously approved by the 

NRC.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Mr. Edward 

Cullen, Vice President & General 

Counsel, Exelon Generation Company, 

LLC, 300 Exelon Way, Kennett Square, 

PA 19348. 

NRC Section Chief: James W. 

Andersen. 

Exelon Generation Company, LLC, 

Docket Nos. 50–352 and 50–353, 

Limerick Generating Station, Units 1 

and 2, Montgomery County, 

Pennsylvania 

Date of amendment request:

November 26, 2002. 

Description of amendment request:

The proposed amendments revise 

Technical Specification (TS) 3.1.3.1, 

Control Rod Operability,’’ by adding 

required actions for scram discharge 

volume (SDV) vent and drain valves to 

align with those in NUREG–1433, 

‘‘Standard Technical Specification, 

General Electric Plants, BWR/4,’’

Revision 2. Additionally, modifications 

are proposed to change TS 3.6.3, 

‘‘Primary Containment Isolation 

Valves,’’ to clarify the relationship 

between TS 3.1.3.1 and TS 3.6.3 

regarding SDV vent and drain valve. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. The proposed amendment does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

The scram discharge volume (SDV) and 

control rod drive (CRD) system, including the 

associated SDV vent and drain isolation 

valves, are not initiators to any accident 

sequence analyzed in the Updated Final 

Safety Analysis Report (UFSAR). Operation 

in accordance with the proposed Technical 

Specification (TS) ensures that the SDV and 

control rods are capable of performing their 

function as described in the UFSAR; 

therefore, the mitigative functions supported 

by the SDV and control rods will continue to 

provide the protection assumed by the 

analysis. The addition of specific TS actions 

to be taken for inoperable SDV vent or drain 

isolation valves will not challenge the ability 

of the SDV and control rods to perform their 

design function. Appropriate monitoring and 

maintenance, consistent with industry 

standards, will continue to be performed. In 

addition, the CRD system including the SDV 

isolation valves is within the scope of 10 CFR 

50.65, ‘‘Requirements for monitoring the 

effectiveness of maintenance at nuclear 

power plants,’’ which will ensure the control 

of maintenance activities associated with the 

CRD system and SDV isolation valves. 

Under the proposed TS changes, the SDV 

vent and drain lines may be unisolated under 

administrative control. This allows any 

accumulated water in the line to be drained, 

to preclude a reactor scram on SDV high 

level. This is acceptable since the 

administrative controls ensure the valve can 

be closed quickly, by a dedicated operator, if 

a scram occurs with the valve open. The 8-

hour allowable outage time to isolate the line 

is based on the low probability of a scram 

occurring while the line is not isolated and 

unlikelihood of significant CRD seal leakage. 

The proposed changes do not involve any 

physical change to structures, systems, or 

components (SSCs) and do not alter the 

method of operation or control of SSCs. The 

current assumptions in the safety analysis 

regarding accident initiators and mitigation 

of accidents are unaffected by these proposed 

changes. No additional failure modes or 

mechanisms are being introduced and the 

likelihood of previously analyzed failures 

remains unchanged. 

The integrity of fission product barriers, 

plant configuration, and operating 

procedures as described in the UFSAR will 

not be affected by these proposed changes. 

Therefore, the consequences of previously 

analyzed accidents will not increase because 

of these proposed changes. 

Based on the above discussion, the 

proposed TS changes do not involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated. 

2. The proposed amendment does not 

create the possibility of a new or different 

kind of accident from any accident 

previously evaluated. 

The proposed changes do not involve a 

physical alteration of the plant. No new 

equipment is being introduced, and installed 

equipment is not being operated in a new or 

different manner. There are no setpoints, at 

which protective or mitigative actions are 

initiated, affected by these proposed changes. 

These proposed changes will not alter the 

manner in which equipment operation is 

initiated, nor will the function demands on 

credited equipment be changed. Any 

alteration in procedures will continue to 

ensure that the plant remains within 

analyzed limits, and no change is required to 

the procedures relied upon to respond to an 

off-normal event as described in the UFSAR. 

As such, no new failure modes are being 

introduced. The changes do not alter 

assumptions made in the safety analysis and 

licensing basis. 

Therefore, the proposed TS changes do not 

create the possibility of a new or different 

kind of accident from any accident 

previously evaluated. 

3. The proposed amendment does not 

involve a significant reduction in a margin of 

safety. 

The margin of safety is established through 

equipment design, operating parameters, and 

the setpoints at which automatic actions are 

initiated. The proposed changes are 

acceptable because the operability of the SDV 

and SDV isolation valves is unaffected, there 

is no detrimental impact on any equipment 

design parameter, and the plant will still be 

required to operate within assumed 

conditions. Operation in accordance with the 

proposed TS ensures that the SDV and 

control rods are capable of performing their 

functions as described in the UFSAR. 

Therefore, the support of the SDV and 

control rods in the plant response to 

analyzed events will continue to provide the 

margins of safety assumed by the analysis. 

The additions to TS for inoperable SDV vent 

and drain isolation valves will not challenge 

the ability of the SDV or control rods to 

perform their design function. Appropriate 

monitoring and maintenance, consistent with 

industry standards, will continue to be 

performed. In addition, CRD system, 

including the SDV vent and drain isolation 

valves, are within the scope of 10 CFR 50.65, 

‘‘Requirements for monitoring the 

effectiveness of maintenance at nuclear 

power plants,’’ which will ensure the control 

of maintenance activities associated with the 

CRD system. This provides sufficient 

management control of the requirements that 

assure the control rods and CRD system are 

maintained in a highly reliable condition. 

Although there is an increase in allowable 

outage time, this increase was evaluated and 

determined not to be a significant reduction 

in a margin of safety. 

The proposed TS Actions for inoperable 

SDV vent and drain isolation valves are 

reasonable and consistent with approved 

standards, guidance and regulations. 

Based on the above discussion, the 

proposed TS changes do not involve a 

significant reduction in a margin of safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration.

804 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Attorney for licensee: Mr. Edward 

Cullen, Vice President & General 

Counsel, Exelon Generation Company, 

LLC, 300 Exelon Way, Kennett Square, 

PA 19348. 

NRC Section Chief: James W. 

Andersen. 

FirstEnergy Nuclear Operating 

Company, Docket No. 50–346, DavisBesse Nuclear Power Station, Unit 1, 

Ottawa County, Ohio 

Date of amendment request: June 4, 

2002. 

Description of amendment request:

The proposed amendment would revise 

the Technical Specifications (TS) 

Surveillance Requirement (SR) 4.0.3 to 

extend the delay period, before entering 

a Limiting Condition for Operation, 

following a missed surveillance. The 

delay period would be extended from 

‘‘* * * up to 24 hours to permit 

completion of the surveillance when the 

allowable (equipment inoperability) 

outage time limits of the ACTION 

requirements are less than 24 hours’’ to 

‘‘* * * up to 24 hours or up to the limit 

of the specified frequency, whichever is 

greater.’’ In addition, the following 

requirement would be added to SR 

4.0.3: ‘‘A risk evaluation shall be 

performed for any Surveillance delayed 

greater than 24 hours, and the risk 

impact shall be managed.’’ The 

proposed amendment is consistent with 

TS Task Force traveler TSTF–358, 

which has been approved by the 

Nuclear Regulatory Commission (NRC). 

The TS Bases will be revised under the 

licensee’s existing TS Bases control 

program to be consistent with the bases 

for TSTF–358. 

Basis for proposed no significant 

hazards consideration determination:

The NRC staff issued a notice of 

opportunity for comment in the Federal 

Register on June 14, 2001 (66 FR 32400), 

on possible amendments concerning 

missed surveillances, including a model 

safety evaluation and model no 

significant hazards consideration 

(NSHC) determination, using the 

consolidated line item improvement 

process. The NRC staff subsequently 

issued a notice of availability of the 

models for referencing in license 

amendment applications in the Federal 

Register on September 28, 2001 (66 FR 

49714). The licensee reviewed the 

model NSHC presented in the Federal 

Register and concluded that it is 

applicable to Davis-Besse. The model 

NSHC determination was incorporated 

by reference into its application dated 

June 4, 2002, to satisfy the requirements 

of 10 CFR 50.91(a), and is presented 

below:

Criterion 1—The Proposed Change Does 

Not Involve a Significant Increase in the 

Probability or Consequences of an Accident 

Previously Evaluated. 

The proposed change relaxes the time 

allowed to perform a missed surveillance. 

The time between surveillances is not an 

initiator of any accident previously 

evaluated. Consequently, the probability of 

an accident previously evaluated is not 

significantly increased. The equipment being 

tested is still required to be operable and 

capable of performing the accident mitigation 

functions assumed in the accident analysis. 

As a result, the consequences of any accident 

previously evaluated are not significantly 

affected. Any reduction in confidence that a 

standby system might fail to perform its 

safety function due to a missed surveillance 

is small and would not, in the absence of 

other unrelated failures, lead to an increase 

in consequences beyond those estimated by 

existing analyses. The addition of a 

requirement to assess and manage the risk 

introduced by the missed surveillance will 

further minimize possible concerns. 

Therefore, this change does not involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated. 

Criterion 2—The Proposed Change Does 

Not Create the Possibility of a New or 

Different Kind of Accident From Any 

Previously Evaluated. 

The proposed change does not involve a 

physical alteration of the plant (no new or 

different type of equipment will be installed) 

or a change in the methods governing normal 

plant operation. A missed surveillance will 

not, in and of itself, introduce new failure 

modes or effects and any increased chance 

that a standby system might fail to perform 

its safety function due to a missed 

surveillance would not, in the absence of 

other unrelated failures, lead to an accident 

beyond those previously evaluated. The 

addition of a requirement to assess and 

manage the risk introduced by the missed 

surveillance will further minimize possible 

concerns. Thus, this change does not create 

the possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

Criterion 3—The Proposed Change Does 

Not Involve a Significant Reduction in the 

Margin of Safety. 

The extended time allowed to perform a 

missed surveillance does not result in a 

significant reduction in the margin of safety. 

As supported by the historical data, the likely 

outcome of any surveillance is verification 

that the LCO [Limiting Condition for 

Operation] is met. Failure to perform a 

surveillance within the prescribed frequency 

does not cause equipment to become 

inoperable. The only effect of the additional 

time allowed to perform a missed 

surveillance on the margin of safety is the 

extension of the time until inoperable 

equipment is discovered to be inoperable by 

the missed surveillance. However, given the 

rare occurrence of inoperable equipment, and 

the rare occurrence of a missed surveillance, 

a missed surveillance on inoperable 

equipment would be very unlikely. This 

must be balanced against the real risk of 

manipulating the plant equipment or 

condition to perform the missed surveillance. 

In addition, parallel trains and alternate 

equipment are typically available to perform 

the safety function of the equipment not 

tested. Thus, there is confidence that the 

equipment can perform its assumed safety 

function. Therefore, this change does not 

involve a significant reduction in a margin of 

safety. 

Based upon the reasoning presented above 

and the previous discussion of the 

amendment request, the requested change 

does not involve a significant hazards 

consideration.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 50.92(c) are satisfied. 

Therefore, the NRC staff proposes to 

determine that the amendment request 

involves no significant hazards 

consideration. 

Attorney for licensee: Mary E. 

O’Reilly, Attorney, FirstEnergy 

Corporation, 76 South Main Street, 

Akron, OH 44308. 

NRC Section Chief: Anthony J. 

Mendiola. 

FirstEnergy Nuclear Operating 

Company, Docket No. 50–440, Perry 

Nuclear Power Plant, Unit 1, Lake 

County, Ohio 

Date of amendment request:

December 9, 2002. 

Description of amendment request:

The proposed amendment utilizes the 

Alternate Source Term radiological 

calculations to update the design basis 

analysis in the Updated Safety Analysis 

Report for the Fuel Handling Accident. 

Regulatory Guide 1.183, ‘‘Alternative 

Radiological Source Terms for 

Evaluating Design Basis Accidents at 

Nuclear Power Reactors,’’ was utilized 

in the development of the proposed 

amendment. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration which is presented below:

1. This proposed amendment does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

The proposed amendment involves 

implementation of the Alternative Source 

Term for the Fuel Handling Accident at the 

Perry Nuclear Power Plant (PNPP). There are 

no physical design modifications to the plant 

associated with the proposed amendment. 

The revised calculations do not impact the 

initiators of a Fuel Handling Accident in any 

way. They also do not impact the initiators 

for any other design basis events. Therefore, 

because design basis accident initiators are 

not being altered by adoption of the 

Alternative Source Term analyses, the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 805

probability of an accident previously 

evaluated is not affected. 

With respect to consequences, the only 

previously evaluated accident that could be 

affected is the Fuel Handling Accident. The 

Alternative Source Term is an input to 

calculations used to evaluate the 

consequences of an accident, and does not by 

itself affect the plant response, or the actual 

pathway of the radiation released from the 

fuel. It does however, better represent the 

physical characteristics of the release, so that 

appropriate mitigation techniques may be 

applied. For the Fuel Handling Accident, the 

AST analyses demonstrate acceptable doses, 

within regulatory limits, after 24 hours of 

radiological decay, without credit for 

Containment/Fuel Handling Building 

integrity, filtration system operability, or 

Control Room automatic isolation. Therefore, 

the consequences of an accident previously 

evaluated are not significantly increased. 

Based on the above conclusions, this 

proposed amendment does not involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated. 

2. This proposed amendment does not 

create the possibility of a new or different 

kind of accident from any accident 

previously evaluated. 

The proposed amendment does not involve 

a physical alteration of the plant (no new or 

different type of equipment will be installed 

and there are no physical modifications to 

existing equipment associated with the 

proposed changes). Also, no changes are 

proposed to the methods governing plant/

system operation during handling of recently 

irradiated fuel, so no new initiators or 

precursors of a new or different kind of 

accident are created. New equipment or 

personnel failure modes that might initiate a 

new type of accident are not created as a 

result of the proposed amendment. 

Thus, this amendment does not create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

3. This proposed amendment does not 

involve a significant reduction in a margin of 

safety.

The proposed amendment is associated 

with the implementation of a new licensing 

basis for PNPP Fuel Handling Accidents. 

Approval of the change from the original 

source term to a new source term taken from 

Regulatory Guide 1.183 is being requested. 

The results of the accident analyses, revised 

in support of the proposed license 

amendment, are subject to revised acceptance 

criteria. The analyses have been performed 

using conservative methodologies, as 

specified in Regulatory Guide 1.183. Safety 

margins have been evaluated and analytical 

conservatism has been utilized to ensure that 

the analyses adequately bound the postulated 

limiting event scenario. The dose 

consequences of the limiting Fuel Handling 

Accident remains within the acceptance 

criteria presented in 10 CFR 50.67, ‘‘Accident 

Source Term,’’ and Regulatory Guide 1.183. 

The proposed changes continue to ensure 

that the doses at the exclusion area and low 

population zone boundaries, as well as the 

Control Room, are within corresponding 

regulatory limits. For the Fuel Handling 

Accident, Regulatory Guide 1.183 

conservatively sets the Exclusion Area 

Boundary (EAB) and Low Population Zone 

(LPZ) limits below the 10 CFR 50.67 limit, 

and sets the Control Room limit consistent 

with 10 CFR 50.67. 

Since the proposed amendment continues 

to ensure the doses at the EAB, LPZ and 

Control Room are within corresponding 

regulatory limits, the proposed license 

amendment does not involve a significant 

reduction in a margin of safety. 

Therefore, the proposed amendment does 

not involve a significant reduction in a 

margin of safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Mary E. 

O’Reilly, Attorney, FirstEnergy 

Corporation, 76 South Main Street, 

Akron, OH 44308. 

NRC Section Chief: Anthony J. 

Mendiola. 

Florida Power Corporation, et al., 

Docket No. 50–302, Crystal River Unit 

No. 3 Nuclear Generating Plant, Citrus 

County, Florida 

Date of amendment request: October 

23, 2002. 

Description of amendment request:

The proposed amendment would revise 

Crystal River Unit 3 Improved Technical 

Specifications (ITS) 4.2.1, ‘‘Fuel 

Assemblies,’’ and ITS 4.2.2, ‘‘Control 

Rods,’’ to permit the use of Framatome 

ANP M5 advanced alloy for fuel rod 

cladding and fuel assembly structural 

components. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

Florida Power Corporation (FPC) has 

evaluated the proposed License Amendment 

Request (LAR), which consists of the 

identified Technical Specification changes 

and exemption requests, against the criteria 

of 10 CFR 50.92(c). The Technical 

Specification changes are categorized as 

follows: 

1. Modification of Section 4.2.1, DESIGN 

FEATURES, Fuel Assemblies, and to include 

the M5 advanced alloy for fuel rod cladding 

and fuel assembly structural material[.] 

2. Removal of design information such as 

maximum fuel enrichment, nominal active 

fuel length, maximum individual rod weight, 

and details of Control Rod content. Adopting 

the wording from the Standard ITS. 

3. Addition to ITS 4.2.1 of the following 

sentence: ‘‘A limited number of lead test 

assemblies that have not completed 

representative testing may be placed in 

nonlimiting core regions.’’ Crystal River Unit 

3 does not intend to load lead test assemblies 

in the upcoming fuel cycle (Cycle 14). This 

sentence is being added for consistency with 

NUREG 1430, Revision 2. 

FPC has concluded that this proposed LAR 

does not involve a significant hazards 

consideration. The following is a discussion 

of how each of the criteria is satisfied. 

(1) [Does not] [i]nvolve a significant 

increase in the probability or consequences 

of an accident previously evaluated. 

M5 advanced alloy: Topical reports BAW–

10227P–A, ‘‘Evaluation of Advanced 

Cladding and Structural Material (M5) in 

PWR [Pressurized Water Reactor] Reactor 

Fuel,’’ February 2000 and BAW–10179P–A, 

Revision 4, ‘‘Safety Criteria and Methodology 

for Acceptable Cycle Reload Analyses,’’

March 2001 provide the licensing basis for 

the Framatome ANP (FRA–ANP) advanced 

cladding and structural material, designated 

M5. The M5 material can be used for fuel rod 

cladding, as well as for fuel assembly spacer 

grids, fuel rod end plugs, and fuel assembly 

guide and instrument tubes. By letter dated 

August 2, 2001 (Reference 4), the NRC 

approved BAW–10179P–A, Revision 4, for 

referencing in license applications. BAW–

10179P–A, Revision 4 incorporates BAW–

10227P–A. The M5 material was shown in 

these documents to have equivalent or 

superior properties to the current Zircaloy-4 

material. The cladding itself is not an 

accident initiator and does not affect accident 

probability. The M5 cladding has been 

shown to meet all 10 CFR 50.46 design 

criteria and, therefore, will not increase the 

consequences of an accident. 

Removal of design parameters of maximum 

fuel enrichment, active fuel length, rod 

weight and Control Rod content: This change 

moves design features from Improved 

Technical Specifications (ITS) to the Final 

Safety Analysis Report (FSAR) and other 

design documents and analyses. The 

Framatome ANP enhanced fuel design will 

involve increased rod weight and active fuel 

length. The approved Framatome ANP 

topical report, BAW–10179P–A, ‘‘Safety 

Criteria and Methodology for Acceptable 

Cycle Reload Analyses,’’ will continue to be 

used to ensure that the required safety limits 

for the fuel are satisfied. Therefore, the 

relocation of design information does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

Addition of a limited number of lead test 

assemblies: This change is administrative in 

nature and is proposed for consistency with 

the ITS standard. Crystal River Unit 3 does 

not intend to load lead test assemblies in the 

upcoming fuel cycle. When lead test 

assemblies are to be loaded, the approved 

Framatome ANP topical report BAW–

10179P–A will be used to ensure that all 

applicable limits of the safety analysis are 

met and that the lead test assemblies are 

placed in nonlimiting core locations. 

Applicable mixed core penalties and core 

operating limits will be developed and 

applied. Therefore, use of lead test 

assemblies will not involve a significant 

806 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

increase in the probability or consequences 

of an accident previously evaluated. 

(2) [Does not] [c]reate the possibility of a 

new or different kind of accident from any 

accident previously evaluated. 

M5 advanced alloy: Topical report BAW–

10227P–A demonstrated that the material 

properties of the M5 alloy are not 

significantly different from those of Zircaloy4. Therefore, M5 fuel rod cladding and fuel 

assembly structural components will perform 

similarly to those fabricated from Zircaloy-4, 

thus precluding the possibility of the fuel 

becoming an accident initiator and causing a 

new or different type of accident. 

Removal of design parameters of maximum 

fuel enrichment, active fuel length, rod 

weight and Control Rod content: This change 

moves design features from ITS to the FSAR 

and other design documents and analyses or 

adds consistency with the standard ITS. The 

location of this information does not create 

the possibility of a new or different kind of 

accident from any accident previously 

evaluated. The approved FRA–ANP topical 

report, BAW–10179P–A will continue to be 

used to ensure that the required safety limits 

are satisfied. Therefore, these changes do not 

involve the possibility of a new or different 

kind of accident from any accident 

previously evaluated. 

Addition of a limited number of lead test 

assemblies: This change is administrative in 

nature and it is proposed for consistency 

with the ITS standard. Crystal River Unit 3 

does not intend to load lead test assemblies 

in the upcoming fuel cycle. When lead test 

assemblies are to be loaded, they will be 

designed and manufactured to ensure 

compatibility with the co-resident fuel 

assemblies, core internal structures, and fuel 

handling and storage equipment. The 

approved Framatome ANP topical report 

BAW–10179P–A will be used to ensure that 

the lead test assemblies meet all applicable 

limits of the safety analysis and that the lead 

test assemblies are placed in non-limiting 

core locations. Applicable mixed core 

penalties and core operating limits will be 

developed and applied. Therefore, use of 

lead test assemblies will not involve the 

possibility of a new or different kind of 

accident from any previously evaluated. 

(3) [Does not] [i]nvolve a significant 

reduction in a margin of safety. 

M5 advanced alloy: The proposed changes 

will not involve a significant reduction in the 

margin of safety because it has been 

demonstrated that the material properties of 

the M5 alloy are not significantly different 

from those of Zircaloy-4. The M5 alloy is 

expected to perform similarly or better [than] 

Zircaloy-4 for all normal operating and 

accident scenarios, including both non-LOCA 

[loss-of-coolant accident] and LOCA 

scenarios. For LOCA scenarios, where the 

slight differences in M5 material properties 

relative to Zircaloy-4 could have some 

impact on the overall accident scenario, 

plant-specific LOCA analyses will be 

performed prior to the use of fuel assemblies 

with fuel rods or fuel assembly components 

containing M5. These LOCA analyses, 

required by ITS 5.6.2.18, ‘‘Core Operating 

Limits Report (COLR),’’ will demonstrate that 

all applicable margins of safety will be 

maintained by the use of the M5 alloy. 

Removal of design parameters of maximum 

fuel enrichment, active fuel length, rod 

weight and Control Rod content: Approved 

methodologies will be used in the cyclespecific safety analysis to evaluate the use of 

the M5 advanced alloy, and account for 

various assembly differences (various rod 

weights and active fuel lengths). The location 

of the design information does not affect the 

margin of safety. 

Addition of a limited number of lead test 

assemblies: This change is administrative in 

nature and is proposed for consistency with 

the ITS standard. Crystal River Unit 3 does 

not intend to load lead test assemblies in the 

upcoming fuel cycle. When lead test 

assemblies are to be loaded, the approved 

Framatome ANP topical report BAW–

10179P–A will be used to ensure that all 

applicable limits of the safety analysis are 

met and that the lead test assemblies are 

placed in nonlimiting core locations. 

Applicable mixed core penalties and core 

operating limits will be developed and 

applied. There will be no significant 

reduction in the margin of safety when a 

limited number of lead test assemblies are 

utilized.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 50.92(c) are satisfied. 

Therefore, the NRC staff proposes to 

determine that the amendment request 

involves no significant hazards 

consideration.

Attorney for licensee: R. Alexander 

Glenn, Associate General Counsel 

(MAC–BT15A), Florida Power 

Corporation, P.O. Box 14042, St. 

Petersburg, Florida 33733–4042. 

NRC Section Chief: Allen G. Howe. 

Florida Power and Light Company, 

Docket No. 50–335, St. Lucie Plant, Unit 

No. 1, St. Lucie County, Florida 

Date of amendment request:

November 25, 2002. 

Description of amendment request:

The proposed license amendment 

would modify plant Technical 

Specifications (TSs) and the associated 

spent fuel pool (SFP) criticality analyses 

to eliminate credit for the BoraflexTM

neutron absorber in SFP fuel storage 

racks and credit specific rules to control 

fuel assembly positioning in the SFP 

racks. TS 3.9.11 is revised to add a 

Limiting Condition for Operation for the 

SFP soluble boron concentration and 

require periodic surveillance of this 

parameter. This submittal provides 

justification for removing the 

description of the poison material in the 

spent fuel racks from Section 5 of the 

Unit 1 TSs, that was requested to be 

added by the licensee’s cask pit spent 

fuel storage rack submittal dated 

October 23, 2002. In addition, a new 

SFP dilution analysis was performed 

that supports the criticality analysis 

requirement for a minimum soluble 

boron concentration. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

(1) Would operation of the facility in 

accordance with the proposed amendment 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated? 

No. The proposed amendment to eliminate 

reliance on BoraflexTM and to credit SFP 

soluble boron for reactivity control in the 

spent fuel pool storage racks was evaluated 

for impact on the following previously 

evaluated events: 

• A fuel handling accident (FHA) 

• A fuel mispositioning event 

• A cask drop accident 

• A loss of spent fuel pool cooling 

The proposed amendment does not modify 

the facility. A new criticality analysis credits 

existing soluble boron in the SFP water and 

specific fuel positioning rules for reactivity 

control, without requiring any physical 

changes to the fuel storage racks. The 

amendment does not change any rack 

module location or any module’s designation 

as Region 1 or Region 2 storage. There is no 

significant increase in the probability of a 

fuel handling accident in the SFP that is 

caused by crediting soluble boron and new 

fuel positioning rules, rather than BoraflexTM, 

for reactivity control. The probability of a 

fuel handling accident is a function of the 

equipment design and procedures used when 

handling irradiated fuel. Neither of these 

features is affected when soluble boron, 

instead of BoraflexTM, is credited for 

reactivity control in the SFP. 

There is no increase in the probability of 

an accidental fuel assembly mispositioning 

when crediting the presence of soluble boron 

in fuel pool water for reactivity control. Fuel 

assembly selection and manipulation will 

continue to be controlled by approved fuel 

handling procedures; these procedures 

require the identification of a verified target 

location prior to grappling the assembly. Fuel 

placement will be in accordance with the 

revised TS. 

There is no increase in the consequences 

of either an FHA or an accidental 

mispositioning of a fuel assembly into the 

SFP racks. Consequences of a FHA are not 

increased because the proposed amendment 

does not change the fuel fission product 

inventory, local meteorological conditions, or 

the fission product partition factor provided 

by fuel pool water. The consequences of an 

accidental misload are not increased because 

the criticality analysis demonstrates that the 

fuel array will remain sub-critical, even if the 

pool contains a boron concentration below 

the minimum level required by Technical 

Specifications. The TS will ensure that an 

adequate SFP soluble boron concentration is 

maintained for all conditions. 

The proposed fuel positioning rules do not 

cause the total radionuclide inventory 

present in the spent fuel pool to increase, or 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 807

alter the type or mass of casks that may be 

placed in the fuel pool, or alter any facet of 

operation of the spent fuel cask crane. No 

characteristics of the existing spent fuel cask 

drop analysis for Unit 1 are affected by the 

proposed fuel positioning rules or by credit 

for soluble boron. Therefore, there is no 

increase in either the probability or the 

consequences of a cask drop accident caused 

by this change. 

The proposed change does not increase 

either the probability or the consequences of 

a loss of normal SFP cooling. The proposed 

fuel positioning rules do not require any 

interaction with the fuel pool cooling system. 

Credit for a portion of the existing soluble 

boron concentration does not change its 

interaction with the fuel pool cooling system. 

The ability to detect and mitigate a loss of 

SFP cooling event is unchanged, and the 

revised criticality analysis considered the 

effects of boiling in the SFP and found them 

acceptable. 

Therefore, the proposed change does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

(2) Would operation of the facility in 

accordance with the proposed amendment 

create the possibility of a new or different 

kind of accident from any accident 

previously evaluated? 

No. The proposed change does not modify 

the physical plant, nuclear fuel, or the design 

function and operation of the spent fuel pool 

storage racks at St. Lucie Unit 1. A TS 

controlled minimum concentration of soluble 

boron has always been required in the St. 

Lucie Unit 1 spent fuel pool; as such, the 

possibility of an inadvertent fuel pool 

dilution event has always existed. However, 

the spent fuel pool dilution analysis that 

accompanies this submittal demonstrates that 

no credible dilution event could increase fuel 

pool reactivity such that the effective neutron 

multiplication factor (keff) exceeds 0.95. 

Therefore, implementation of credit for 

soluble boron to control reactivity in the SFP 

will not create the possibility of a new or 

different type of criticality accident. 

The limiting fuel assembly mispositioning 

event does not represent a new or different 

type of accident. The mispositioning of a fuel 

assembly within the fuel storage racks has 

always been possible. The locations of SFP 

rack modules and the specific modules 

assigned to each storage region remain 

unchanged; analysis results show that the 

storage racks remain subcritical, with 

substantial margin, following a worst case 

fuel misloading event. Therefore, a fuel 

assembly misload event that involves new 

fuel storage arrangements required by the 

criticality analysis does not result in a new 

or different type of criticality accident. 

Therefore, the proposed change does not 

create the possibility of a new or different 

type of accident from any accident 

previously evaluated. 

(3) Would operation of the facility in 

accordance with the proposed amendment 

involve a significant reduction in a margin of 

safety? 

No. The revised fuel positioning 

requirements proposed by this license 

amendment provide sufficient safety margin 

to ensure that the spent fuel pool storage 

racks will always remain subcritical. To 

comply with the requirements of 10 CFR 

50.68 when crediting soluble boron, the 

current TS reactivity limit for the fuel storage 

racks (i.e., keff less than or equal to 0.95 when 

flooded with unborated water) will be 

replaced with two separate limits (keff less 

than 1.0 when flooded with unborated water, 

and keff less than or equal to 0.95 when 

flooded with water containing 500 ppm 

boron).

The proposed amendment maintains the 

0.95 reactivity limit by a combination of 

restrictions on fuel characteristics and fuel 

positioning, storage cell geometry and by 

crediting a portion of the soluble boron in the 

SFP, rather than by crediting Boraflex. 

The proposed license amendment does not 

reduce the margin of safety provided by the 

soluble boron normally present in fuel pool 

water; the TS minimum permissible boron 

concentration is not decreased. The TS 

minimum required value of 1720 ppm is 

substantially greater than the 500 ppm value 

required by the updated criticality analysis to 

assure keff remains = 0.95 for non-accident 

conditions; it is also substantially greater 

than the soluble boron concentration 

necessary to compensate at a 95% 

probability, with a 95 percent confidence for 

the limiting postulated reactivity anomaly in 

the fuel pool storage racks. 

No credible dilution of the fuel pool can 

result in an SFP soluble boron concentration 

less than the minimum value required by the 

criticality analysis. Therefore, an inadvertent 

dilution event can not challenge safety 

margins. 

Based on these evaluations and the 

supporting analyses, operating the facility 

with the proposed amendment does not 

involve in a significant reduction in any 

margin of safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 50.92(c) are satisfied. 

Therefore, the NRC staff proposes to 

determine that the amendment request 

involves no significant hazards 

consideration. 

Attorney for licensee: M.S. Ross, 

Attorney, Florida Power & Light, P.O. 

Box 14000, Juno Beach, Florida 33408–

0420. 

NRC Section Chief: Allen G. Howe. 

GPU Nuclear Corporation and Saxton 

Nuclear Experimental Corporation 

(SNEC), Docket No. 50–146, Saxton 

Nuclear Experimental Facility (SNEF), 

Bedford County, Pennsylvania 

Date of amendment request: April 22, 

2002, as supplemented on December 5, 

2002. 

Description of amendment request:

The proposed amendment would allow 

removal of the upper half of the SNEF 

containment vessel and make a change 

to the organization to add the position 

of Vice-President GPU Nuclear 

Oversight to reflect the merger of GPU 

Inc. and FirstEnergy Corp. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensees have provided their analysis of 

the issue of no significant hazards 

consideration, which is presented 

below:

GPU Nuclear has determined that 

Technical Specification Change Request No. 

62 involves no significant hazard 

consideration as defined in 10 CFR 50.92. 

1. The proposed changes to the SNEC 

Technical Specifications do not involve a 

significant increase in the probability of 

occurrence or consequences of an accident or 

malfunction of equipment important to safety 

previously analyzed in the safety analysis 

report. 

As described in the change to delete 

Technical Specification 1.1.2, radiation 

levels inside the Containment Vessel will be 

below that necessary to maintain the 

Containment Vessel as an Exclusion Area. 

Further as required by modified Technical 

Specification 2.1.1 ventilation controls will 

be established to monitor and control any 

potential releases of airborne radioactivity 

during activities involving removal of the 

upper dome. Finally an analysis has been 

performed to determine the dose to a 

maximally exposed individual due to an 

accidental release while cutting the 

Containment Vessel. In developing a source 

term for the event it was assumed that 

following the concrete removal process the 

interior surfaces of the upper Containment 

Vessel dome was homogeneously coated with 

concrete dust. NUREG 1507 ‘‘Minimum 

Detectable Concentrations with Typical 

Radiation Survey Instruments for Various 

Contaminants and Field Conditions’’

describes an experiment to determine the 

attenuation effects due to dusty conditions. 

The maximum dust loading presented was 

9.99 mg/cm2 for soil. This value was 

converted to concrete dust by comparing the 

relative densities of the material (1.5 g/cm3

for soil and 2.3 g/cm3 for concrete) or 15.3 

mg/cm2. This amount of dust coating the 

internal surfaces of the Containment Vessel 

dome (9.05E6 cm2) results in 299 pounds of 

dust being left in the Containment Vessel. 

Table 1 provides the mix of isotopes 

remaining at the SNEC Facility based on the 

most recent survey results and isotope decay. 

During the removal operation a resuspension 

factor of 1.9E–2/m (as described in NUREG/

CR 0130 ‘‘Technology, Safety and Costs of 

Decommissioning a Reference Pressurized 

Water Reactor Power Station’’, Volume 2, 

page J–27) was selected to represent the 

amount of concrete dust going airborne. This 

parameter is about one order of magnitude 

larger than that used in any other accident 

analyses described in the NUREG. This entire 

volume of dust was assumed to be released, 

unfiltered, directly to the environment. 

An accident dispersion factor (c/Q) of 

3.41E–3 sec/m3, was also selected as it is the 

highest, thus most conservative, value used 

in the SNEC Facility Offsite Dose Calculation 

Manual (ODCM). Additionally composite 

dose conversion factors were selected from 

808 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Table 5–1 of EPA 400–R–92–001 ‘‘Manual of 

Protective Action Guides and Protective 

Guides for Nuclear Incidents’’ (US EPA, May 

1992). 

Based on the above a calculated dose of 

3.23E–4 mrem to the maximally exposed 

individual represents a conservative estimate 

for an accidental release. For comparison 

Section 3.1 of the SNEC Facility USAR 

estimated the dose from an unfiltered release 

due to a material handling event of 1.5 mrem 

to the maximally exposed individual. 

Thus this proposed change does not 

involve a significant increase in the 

probability of occurrence or consequences of 

an accident or malfunction of equipment 

important to safety previously analyzed in 

the SNEC Facility USAR. 

For the portions of the amendment that 

would make a change to the organization to 

add the position of Vice-President GPU 

Nuclear Oversight to reflect the merger of 

GPU Inc. and FirstEnergy Corp, these 

changes are administrative in nature. As such 

they have no effect on the probability of 

occurrence or consequences of an accident or 

malfunction of equipment important to 

safety.

2. The proposed changes to the SNEC 

Technical Specifications will not create the 

possibility for an accident or malfunction of 

a different type than any previously 

evaluated in the safety analysis report. 

As described in the response to item 1 

above, the limiting accidental release during 

segmentation of the Containment Vessel 

dome involves the direct release of 

radioactive material to the environment. This 

event is similar to both a material handling 

event as described in Section 3.1 of the SNEC 

Facility USAR, and loss of engineering 

controls during segmentation as described in 

Section 3.4 of the SNEC Facility USAR. Thus 

the possibility of a new accident is not 

created. 

For the portions of the amendment that 

would make a change to the organization to 

add the position of Vice-President GPU 

Nuclear Oversight to reflect the merger of 

GPU Inc. and FirstEnergy Corp, these 

changes are administrative in nature. As such 

they have no effect on the possibility of an 

accident or malfunction of a different type. 

3. The changes will not involve a 

significant reduction in the margin of safety 

as defined in the basis for any technical 

specification for SNEC. The SNEC Facility 

Technical Specifications do not contain a 

defined margin of safety. However the 

implied margin of safety is to protect 

members of the public from exposure to 

radioactive material. 

At the point in time that these Technical 

Specifications would take affect general 

radiation levels in the SNEC Facility 

Containment Vessel would be such that the 

Containment Vessel could be opened for 

unrestricted use as defined in 10 CFR 

20.1301. Additionally the dose to a 

maximally exposed individual from an 

accidental release during removal of the 

Containment Vessel dome is several orders of 

magnitude below that from the limiting 

accidents defined in the SNEC Facility 

USAR. Thus the margin of safety is not 

reduced. 

For the portions of the amendment that 

would make a change to the organization to 

add the position of Vice-President GPU 

Nuclear Oversight to reflect the merger of 

GPU Inc. and FirstEnergy Corp, these 

changes are administrative in nature. As such 

they have no effect on the margin of safety 

as defined in the basis for any technical 

specification for SNEC.

The NRC staff has reviewed the 

analysis of the licensees and, based on 

this review, it appears that the three 

standards of 50.92(c) are satisfied. 

Therefore, the NRC staff proposes to 

determine that the amendment request 

involves no significant hazards 

consideration. 

Attorney for the Licensee: Ernest L. 

Blake, Jr., Esquire, Shaw, Pittman, Potts, 

and Trowbridge, 2300 N Street, NW., 

Washington, DC 20037. 

NRC Program Director: William D. 

Beckner.

TABLE 1.—MAXIMUM EXPOSED INDIVIDUAL DOSE FROM CUTTING THE CV 

Isotope 

CV concrete activity (Ci) per 

table 4.13 

SNEC 

char. report 

Fraction remaining as 

dust (uCi) 

CV wall 

area

concetration 

(uCi/m) 2

CV air

concetration 

(uCi/m) 3

Instantaneous

release 

rate (uCi/

sec) 4

Concentration

(uCi/cm) 3

DCF 7

Offsite 

dose 

(mrem) 

Am¥241 .................................... 8.24e¥05 4.68e¥03 5.17e¥06 .. 9.83e¥08 .. 2.93e¥04 9.99e¥13 1.47e+05 .. 1.47e¥04 

Co¥60 ....................................... 4.60e¥02 2.61e+00 .. 2.89e¥03 .. 5.49e¥05 .. 1.63e¥01 5.57e¥10 7.50e+01 .. 4.18e¥05 

Cs¥137 ..................................... 2.38e¥01 1.35e+01 .. 1.49e¥02 .. 2.84e¥04 .. 8.46e¥01 2.88e¥09 1.14e+01 .. 3.28e¥05 

C¥14 ......................................... 5.74e¥03 3.26e¥01 3.60e¥04 .. 6.84e¥06 .. 2.04e¥02 6.96e¥11 6.94e¥01 4.83e¥08 

Eu¥152 ..................................... 1.42e¥03 8.07e¥02 8.91e¥05 .. 1.69e¥06 .. 5.05e¥03 1.72e¥11 7.50e+01 .. 1.29e¥06 

H¥3 ........................................... 1.29e¥01 7.33e+00 .. 8.10e¥03 .. 1.54e¥04 .. 4.58e¥01 1.56e¥09 2.14e¥02 3.34e¥08 

Ni¥63 ........................................ 3.93e¥02 2.23e+00 .. 2.47e¥03 .. 4.69e¥05 .. 1.40e¥01 4.76e¥10 2.11e+00 .. 1.01e¥06 

Pu¥239 ..................................... 5.24e¥05 2.98e¥03 3.29e¥06 .. 6.25e¥08 .. 1.86e¥04 6.35e¥13 1.44e+05 .. 9.17e¥05 

Pu¥241 ..................................... 1.84e¥04 1.05e¥02 1.15e¥05 .. 2.19e¥07 .. 6.54e¥04 2.23e¥12 2.75e+03 .. 6.13e¥06 

Sr¥90 ........................................ 1.59e¥04 9.03e¥03 9.98e¥06 .. 1.90e¥07 .. 5.65e¥04 1.93e¥12 4.44e+02 .. 8.56e¥07 

Total .................................... 4.60e¥01 2.61e+01 .. ................... ................... 1.63e+00 .. .................. .................. 2.70e+05 

1Fraction remaining determined by: (299 lbs dust/5.26E6 lbs total concrete in CV) × 1E6 uCi/Ci × CV concrete activity. 2Area concentration determined by dividing dust fraction remaining by 9.05E2 m2 (surface of CV shell being removed). 3Air concentration determined by multiplying CV wall area activity by 1.9E¥2/m (NUREG 0130 resuspension factor for dust sweeping). 4 Calculated by multiplying CV air specific activity by CV volume (2.98E3 m3) instantaneously released in one second. 5 Maximum atmospheric dispersion factor (X/Q) is 3.41E–3 sec/m3 at the site boundary (200 meters) and in Sector N per SNEC ODCM Revision 5. 6 Calculated by multiplying X/Q × activity released in uCi/sec × 1e¥6 m3/cm3. 7Per EPA 400–R–92–001, Table 5–1. 

Nebraska Public Power District, Docket 

No. 50–298, Cooper Nuclear Station, 

Nemaha County, Nebraska 

Date of amendment request: July 10, 

2002. 

Description of amendment request:

This proposed amendment would 

replace the fire protection (FP) 

requirements contained in Facility 

Operating License (FOL) Section 2.C.(4) 

with the standard fire protection FOL 

condition recommended by Generic 

Letter 86–10, Section F, adapted to 

Cooper Nuclear Station (CNS). 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. Do the proposed changes involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated? 

The proposed change would revise the 

CNS Operating License condition concerning 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 809

the FP program and its change process. It 

does not alter the FP requirements in the 

FHA [fire hazard analysis] or in the USAR 

[updated safety analysis report] including the 

assumptions underlying them. Neither does 

it alter SSCs [structures, systems or 

components] relied on by analyses to 

mitigate accidents or special events. Since it 

does not change any of the FP requirements 

or analyses, this proposed amendment does 

not introduce a new initiator for any of the 

accidents analyzed in the CNS USAR or 

considered therein. Because it does not 

specifically change any FP requirements or 

mitigating SSCs, this proposed amendment 

does not introduce a new mechanism for 

degrading the mitigating features considered 

for the accidents analyzed. By introducing no 

new accident initiators and no new 

mechanisms for degradation of mitigating 

features, no significant increase in the 

probability or consequences of an accident 

previously evaluated is involved in the 

proposed change. Therefore, the proposed 

change does not result in a significant 

increase in radiological doses for any Design 

Basis Accident and does not result in a 

significant increase in the types or amounts 

of any effluents that may be released off-site. 

2. Do the proposed changes create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

The proposed amendment does not 

physically change the fit, form, or function of 

any SSC credited in the accident analyses or 

in the FHA, Technical Requirements Manual 

(TRM), or the USAR. The proposed change 

does not alter assumptions or requirements 

used in the FHA, TRM, or USAR, nor does 

it affect the CNS Fire Protection program. It 

does not, therefore, alter the FP program or 

affect the plant’s ability to achieve and 

maintain safe shutdown in the event of a fire, 

and it does not result in a reduction in the 

level of fire protection of the facility. Because 

it does not change FP requirements, the FP 

program or fire-mitigating SSCs, this 

proposed change does not create the 

possibility of a new or different kind of 

accident from those previously evaluated for 

CNS. 

3. Do the proposed changes involve a 

significant reduction in the margin of safety? 

The proposed amendment does not alter 

the design features of the approved FP plan. 

The proposed amendment does not alter 

administrative controls in the CNS Fire 

Protection program necessary to ensure 

required performance of physical barriers 

during anticipated operational occurrences 

and postulated accidents. The proposed 

change does not alter the NRC approved Fire 

Protection program as described in FP SER 

[safety evaluation report] dated May 23, 

1979, SER Supplement 1 dated November 21, 

1980, SER dated September 21, 1983, SER 

dated April 16, 1984, SER dated August 21, 

1985, SER dated April 10, 1986, SER dated 

November 7, 1988, SER dated August 15, 

1995. It does not affect the USAR, the TRM, 

the FHA or the commitments contained 

therein. It does not physically change the fit, 

form, or function of any SSC credited in the 

accident analyses or in these documents. 

Because it does not change the requirements, 

plan or mitigating SSCs, this proposed 

change does not involve a significant 

reduction in a margin of safety. 

In summary, the proposed amendment 

does not involve a significant increase in the 

probability or consequences of an accident or 

creates the possibility of a new or different 

kind of accident or involve a significant 

reduction in the margin of safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Mr. John R. 

McPhail, Nebraska Public Power 

District, Post Office Box 499, Columbus, 

NE 68602–0499. 

NRC Section Chief: Robert A. Gramm. 

Nuclear Management Company, LLC, 

Docket No. 50–305, Kewaunee Nuclear 

Power Plant, Kewaunee County, 

Wisconsin 

Date of amendment request:

November 22, 2002. 

Description of amendment request:

The proposed amendment would revise 

the Kewaunee Nuclear Power Plant 

(KNPP) Technical Specifications (TS), 

Section 4.6, ‘‘Periodic Testing of 

Emergency Power System.’’ This 

proposed amendment would allow 

KNPP to inspect the diesel generators 

(DGs) at least once per refueling 

frequency either while the plant is 

operating or during a refueling outage. 

Current TS requires an inspection 

during the refueling outage without 

exception. In addition, the proposed 

amendment would allow KNPP to make 

administrative changes to TS Section 

4.6. The proposed change provides 

operational flexiblity in the schedule of 

maintenance activities. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. Involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

The DGs are accident mitigating 

equipment, not accident initiating 

equipment. Consequently, there will be no 

impact on any accident probabilities by the 

approval of the requested amendment. 

The proposed change does not affect the 

performance of any equipment used to 

mitigate the consequences of an analyzed 

accident. Consequently, no analysis 

assumptions are violated and there are no 

adverse effects on the factors that contribute 

to off-site or on-site dose as the result of an 

accident. 

The format, typographical, grammatical, 

and standardized naming convention 

changes in addition to the WORD conversion 

are administrative in nature and therefore 

have no impact on accident initiators or plant 

equipment. 

Based on the above, the proposed 

administrative changes and permitting DG 

inspections to be performed during plant 

operation does not involve a significant 

increase in the probabilities or consequences 

of an accident previously evaluated. 

2. Create the possibility of a new or 

different kind of accident from any accident 

previously evaluated.

No new accident mechanisms would be 

created as a result of NRC approval of this 

amendment request since no changes are 

being made to the plant that would introduce 

any new accident mechanisms. Equipment 

would be operated in the same configurations 

with the exception of the mode in which the 

inspection is credited. The inspection will be 

performed within the current approved 

Technical Specification limiting condition 

for operation (LCO). This amendment request 

does not impact any plant systems that are 

accident initiators or adversely impact any 

accident mitigating systems. 

The proposed administrative changes do 

not involve any modifications to the physical 

plant or operations. Administrative changes 

do not contribute to accident initiators nor do 

they produce a new accident scenario. Based 

on the above, implementation of the 

proposed change would not create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

3. Involve a significant reduction in the 

margin of safety. 

Margin of safety is related to the 

confidence in the ability of the fission 

product barriers to perform their design 

functions during and following an accident 

situation. These barriers include fuel 

cladding, the reactor coolant system, and the 

containment system. The proposed change to 

the inspection timing for the DGs do not 

affect the operability requirements for the 

DGs, as verification of such operability will 

continue to be performed as required. 

Continued verification of operability 

supports the capability of the DGs to perform 

their required function of providing 

emergency power to plant equipment that 

supports the fission product barriers. 

Consequently, the performance of these 

fission product barriers will not be impacted 

by implementation of this license 

amendment request and therefore does not 

involve a significant reduction in the margin 

of safety. 

The administrative changes do not affect 

plant equipment or operation. Therefore, the 

proposed changes do not involve a 

significant reduction in the margin of safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

810 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

Attorney for licensee: John H. O’Neill, 

Jr., Esq., Shaw Pittman, Potts & 

Trowbridge, 2300 N. Street, NW., 

Washington, DC 20037–1128. 

NRC Section Chief: L. Raghavan. 

Pacific Gas and Electric Company, 

Docket Nos. 50–275 and 50–323, Diablo 

Canyon Nuclear Power Plant, Unit Nos. 

1 and 2, San Luis Obispo County, 

California 

Date of amendment requests: August 

27, 2002. 

Description of amendment requests:

The proposed license amendments 

would revise the term ‘‘minimum 

measured flow per loop’’ to ‘‘measured 

loop flow’’ in the allowable value and 

nominal trip setpoint for the Reactor 

Coolant Flow-Low reactor trip function 

contained in Table 3.3.1–1, ‘‘Reactor 

Trip System Instrumentation,’’ of 

Technical Specification (TS) 3.3.1. In 

addition, the proposed amendments 

would allow for an alternate method for 

the measurement of reactor coolant 

system (RCS) total volumetric flow rate 

through measurement of the elbow tap 

differential pressures on the RCS 

primary cold legs. The use of elbow tap 

differential pressures normalized to 

Diablo Canyon Power Plant Cycle 1 and 

2 precision flow calorimetrics would 

improve the accuracy of the RCS flow 

measurement through reduction of the 

effect of hot leg temperature streaming 

that is present in the current flow 

calorimetric method. 

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. The proposed change does not involve 

a significant increase in the probability or 

consequences of an accident previously 

evaluated. 

The proposed change revises the Technical 

Specification (TS) 3.3.1 Table 3.3.1–1 term 

‘‘minimum measured flow per loop’’ to 

‘‘measured loop flow’’ in the allowable value 

and nominal trip setpoint for the Reactor 

Coolant Flow-Low reactor trip function and 

allows an alternate method for the 

measurement of reactor coolant system (RCS) 

total flow to meet TS surveillance 

requirement (SR) SR 3.4.1.4 through 

measurement of the elbow tap differential 

pressures on the RCS primary cold legs.

The change will not increase the 

probability of an accident previously 

evaluated because adequate RCS flow will 

still be assured. The Reactor Coolant FlowLow reactor trip function allowable value 

and nominal trip setpoint are accident 

mitigation functions and are not an accident 

initiator. The elbow tap method to measure 

RCS flow and the change to the flow 

definition associated with the Reactor 

Coolant Flow-Low reactor trip function do 

not involve a plant modification. 

For the elbow tap method to measure RCS 

flow, sufficient margin exists to account for 

all reasonable instrument uncertainties and 

therefore the RCS flow will continue to be 

maintained at a value which is bounded by 

the design basis accident initial conditions. 

The change to the flow definition associated 

with the Reactor Coolant Flow-Low reactor 

trip function allowable value and nominal 

trip setpoint does not change a design basis 

accident initial condition or the conditions at 

the time of reactor trip during a design basis 

accident and therefore has no adverse effect 

on the design basis accidents which credit 

the Reactor Coolant Flow-Low reactor trip 

setpoint. 

Therefore, the proposed change does not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

2. The proposed change does not create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

The proposed change to the flow definition 

associated with the Reactor Coolant FlowLow reactor trip function allowable value 

and nominal trip setpoint and the proposed 

elbow tap method to measure RCS flow will 

not create the possibility of a new or different 

type of accident from any previously 

evaluated. There are no physical changes 

being made to the plant and there are no 

changes in operation of the plant that could 

introduce a new failure mode, creating an 

accident which has not been evaluated. 

Therefore, the proposed change does not 

create the possibility of a new or different 

accident from any accident previously 

evaluated. 

3. The proposed change does not involve 

a significant reduction in a margin of safety. 

The proposed change to the flow definition 

associated with the Reactor Coolant FlowLow reactor trip function allowable value 

and nominal trip setpoint and the proposed 

elbow tap method to measure RCS flow will 

not reduce the margin of safety. For the 

proposed elbow tap flow method, sufficient 

margin exists to account for all reasonable 

instrument uncertainties and thus the RCS 

flow will continue to be maintained at a 

value which is bounded by the design basis 

accident initial conditions, and no adverse 

effect on the plant response to design basis 

accidents is created. The change in the flow 

definition associated with the Reactor 

Coolant Flow-Low reactor trip function 

allowable value and nominal trip setpoint 

does not change a design basis accident 

initial condition or the conditions at the time 

of reactor trip during a design basis accident, 

and therefore has no effect on the plant 

response to design basis accidents which 

credit the Reactor Coolant Flow-Low reactor 

trip setpoint. Since the change does not affect 

the response to design basis accidents, it does 

not result in a decrease in departure from 

nucleate boiling margin or reactor coolant 

system peak pressure margin for the design 

basis accidents. 

Therefore, the proposed change does not 

involve a significant reduction in a margin of 

safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment requests involve no 

significant hazards consideration. 

Attorney for licensee: Christopher J. 

Warner, Esq., Pacific Gas and Electric 

Company, P.O. Box 7442, San 

Francisco, California 94120. 

NRC Section Chief: Stephen Dembek. 

Pacific Gas and Electric Company, 

Docket Nos. 50–275 and 50–323, Diablo 

Canyon Nuclear Power Plant, Unit Nos. 

1 and 2, San Luis Obispo County, 

California 

Date of amendment requests:

November 1, 2002. 

Description of amendment requests:

The proposed license amendments 

would revise Technical Specification 

(TS) 3.3.1, ‘‘Reactor Trip System (RTS) 

Instrumentation,’’ and TS 3.3.2, 

‘‘Engineered Safety Feature Actuation 

System (ESFAS) Instrumentation’’ as 

follows: (1) Revise both the RTS and 

ESFAS instrumentation TS and TS 

Bases to change or clarify the 

allowances for bypassing and tripping 

tested channels with other channels 

inoperable; (2) remove Surveillance 

Requirement 3.3.1.10 from Function 

16.b, ‘‘Turbine Stop Valve Closure;’’ (3) 

correct the nominal trip setpoint value 

for Function 16.b, ‘‘Turbine Stop Valve 

Closure;’’ (4) correct the allowable value 

for the Function 18.f, ‘‘Turbine Impulse 

Chamber Pressure, P–13;’’ and (5) 

remove and relocate the nonsafetyrelated turbine trip function from 

Function 5 of Table 3.3.2–1, ‘‘Turbine 

Trip and Feedwater Isolation.’’ This 

function will be relocated to other 

owner-controlled documents.

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. The proposed change does not involve 

a significant increase in the probability or 

consequences of an accident previously 

evaluated. 

The proposed changes in the required 

action statements in the Limiting Conditions 

for Operation (LCOs) for the allowable 

surveillance testing configurations for both 

the reactor trip system (RTS) and engineered 

safety feature actuation system (ESFAS) 

instruments will not change the probability 

or consequences of an accident previously 

evaluated. 

The proposed surveillance testing 

configuration changes only clarify available 

surveillance testing configurations and 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 811

limitations on those configurations. The 

changes do not modify how the RTS and 

ESFAS functions respond to any accident 

condition. These surveillance testing 

configurations provide greater flexibility to 

prevent inadvertent actuation of these 

functions that could be a precursor for an 

accident. 

Previous Diablo Canyon Power Plant 

(DCPP) submittals have been approved 

providing for the capability of surveillance 

testing in trip and/or in bypass. Surveillance 

testing in bypass is considered the preferred 

method for most Eagle 21 instruments. 

However, where testing by tripping a single 

channel without causing a function actuation 

is acceptable, that capability was also 

maintained. 

Although some of the changes may appear 

to add new allowable surveillance testing 

configurations, all of the proposed 

configurations are based on the application of 

the intent behind the existing Technical 

Specification (TS) wording. The limitations 

on surveillance testing configurations 

provided by the proposed changes are to 

ensure that there are no spurious actuations 

and that during testing a valid signal will 

cause the associated functions to actuate as 

designed. None of these configurations place 

the associated function in a logic that has not 

been previously evaluated and approved. 

The proposed elimination of the channel 

calibration for the turbine stop valve position 

switches will not change the probability or 

consequences of an accident previously 

evaluated since these switches are not subject 

to drift. These limit switches are installed 

with fixed limit setpoints that actuate based 

on valve position and they are not calibrated 

in the field. As a result, a channel calibration 

being performed on these switches provides 

no useful purpose other than to verify 

function similar to the remaining trip 

actuation device operational test (TADOT). 

As a result, performing only the TADOT 

provides all necessary assurances of 

operability. 

The correction of the turbine stop valve 

closure nominal trip setpoint is 

administrative in nature and will not change 

the probability or consequences of an 

accident previously evaluated. This was an 

oversight in the Improved Technical 

Specification (ITS) review and conversion 

process. The proposed change only returns 

the setpoint to the previously evaluated 

value. 

The proposed change to the allowable 

value for Function 18.f, ‘‘Turbine Impulse 

Chamber Pressure, P–13,’’ is administrative 

in nature and will not change the probability 

or consequences of an accident previously 

evaluated. The P–13 intended trip setpoint 

has always been maintained at 10 percent 

and remains unchanged. This modification is 

performed to provide consistency with 

current methodology and NUREG–1431, and 

does not affect the operation of the protective 

function. 

The proposed removal and relocation of 

the turbine trip function from ESFAS 

Function 5 will not change the probability or 

consequences of an accident previously 

evaluated. The turbine trip function is 

nonsafety-related and is not credited in any 

design bases accident scenario. The proposed 

change only clarifies importance of the two 

trip functions. The proposed changes in this 

LAR [License Amendment Request] do not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

2. The proposed change does not create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated. 

The proposed changes in the required 

action statements in the LCOs for the 

allowable surveillance testing configurations 

for both the RTS and ESFAS instruments will 

not create the possibility of a new or different 

kind of accident from any accident 

previously evaluated. The proposed changes 

only clarify previously available surveillance 

testing configurations and limitations on 

those configurations. These clarifications 

ensure maximum surveillance testing 

flexibility to prevent inadvertent actuation of 

these functions that could be a precursor for 

an accident. The changes do not modify any 

equipment, hardware or how the RTS and 

ESFAS functions respond to any accident 

condition. 

The proposed elimination of the channel 

calibration for the turbine stop valve position 

switches will not create the possibility of a 

new or different kind of accident from any 

accident previously evaluated. This change 

does not modify any equipment, hardware or 

functions. The switches are installed with 

fixed limit setpoints that actuate based on 

valve position. The switches are not subject 

to drift and are not calibrated in the field. As 

a result, a channel calibration being 

performed on these switches provides no 

useful purpose other than to verify function 

similar to the required TADOT. As a result, 

performing only the TADOT provides 

equivalent assurances of operability.

The correction of the turbine stop valve 

closure nominal trip setpoint in Function 

16.b, ‘‘Turbine Stop Valve Closure,’’ is 

administrative in nature and will not create 

the possibility of a new or different kind of 

accident from any accident previously 

evaluated. This was an oversight in the ITS 

review and conversion process. The 

proposed change does not modify any 

hardware or equipment, and only returns the 

setpoint to the previously evaluated value. 

The proposed change to the allowable 

value for Function 18.f, ‘‘Turbine Impulse 

Chamber Pressure, P–13,’’ is administrative 

in nature and will not create the possibility 

of a new or different kind of accident from 

any accident previously evaluated. The P–13 

intended (nominal) trip setpoint has always 

been maintained at 10 percent and remains 

unchanged. This change does not modify any 

equipment or hardware. This modification is 

performed to provide consistency with 

current methodology and NUREG–1431, and 

does not affect the operation of the protective 

function. 

The proposed removal and relocation of 

the turbine trip function from ESFAS 

Function 5 will not create the possibility of 

a new or different kind of accident from any 

accident previously evaluated. The turbine 

trip function is nonsafety-related and is not 

credited in any design bases accident 

scenario. The proposed change only clarifies 

importance of the two trip functions. 

3. The proposed change does not involve 

a significant reduction in a margin of safety. 

The proposed changes in the required 

action statements in the LCOs for the 

allowable surveillance testing configurations 

for both the RTS and ESFAS instruments will 

not involve a significant reduction in a 

margin of safety. The proposed changes only 

clarify previously available surveillance 

testing configurations and limitations on 

those configurations. These clarifications 

ensure maximum surveillance testing 

flexibility to prevent inadvertent actuation of 

these functions that could be a precursor for 

an accident. The changes do not modify any 

equipment, hardware or how the RTS and 

ESFAS functions respond to any accident 

condition. 

The proposed elimination of the channel 

calibration for the turbine stop valve position 

switches will not involve a significant 

reduction in a margin of safety. This change 

does not modify any equipment, hardware or 

functions. The switches are installed with 

fixed limit setpoints that actuate based on 

valve position. The switches are not subject 

to drift and are not calibrated in the field. As 

a result, a channel calibration being 

performed on these switches provides no 

useful purpose other than to verify function 

similar to the required TADOT. As a result, 

performing only the TADOT provides 

equivalent assurances of operability. 

The correction of the turbine stop valve 

closure nominal trip setpoint in Function 

16.b, is administrative in nature and will not 

involve a significant reduction in a margin of 

safety. This was an oversight in the ITS 

review and conversion process. The 

proposed change does not modify any 

hardware or equipment, and only returns the 

setpoint to the previously evaluated value. 

The proposed change to the allowable 

value for Function 18.f, ‘‘Turbine Impulse 

Chamber Pressure, P–13,’’ is administrative 

in nature and will not involve a significant 

reduction in a margin of safety. The P–13 

intended (nominal) trip setpoint has always 

been maintained at 10 percent and remains 

unchallenged. This change does not modify 

any equipment or hardware. This 

modification is performed to provide 

consistency with current methodology and 

NUREG–1431, and does not affect the 

operation of the protective function. 

The proposed removal and relocation of 

the turbine trip function from ESFAS 

Function 5 does not involve a significant 

reduction in a margin of safety. The turbine 

trip function is nonsafety-related and is not 

credited in any design bases accident 

scenario. The proposed change only clarifies 

importance of the two trip functions. 

None of the proposed changes affect the 

acceptance criteria for any analyzed event. 

There will be no effect on the manner in 

which safety limits or limiting safety system 

settings are determined nor will there be any 

effect on those plant systems necessary to 

assure the accomplishment of protection 

functions.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

812 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment requests involve no 

significant hazards consideration. 

Attorney for licensee: Christopher J. 

Warner, Esq., Pacific Gas and Electric 

Company, P.O. Box 7442, San 

Francisco, California 94120. 

NRC Section Chief: Stephen Dembek. 

Southern California Edison Company, et 

al., Docket Nos. 50–361 and 50–362, 

San Onofre Nuclear Generating Station, 

Units 2 and 3, San Diego County, 

California 

Date of amendments request:

December 9, 2002. 

Description of amendments request:

The proposed amendments would 

revise Technical Specification 3.7.5, 

‘‘Auxiliary Feedwater System,’’

Surveillance Requirement (SR) 3.7.5.2 

for San Onofre Nuclear Generating 

Station, Units 2 and 3. Specifically, the 

proposed change would change wording 

of the Frequency of SR 3.7.5.2 from ‘‘31 

days on a Staggered Test Basis’’ to ‘‘In 

accordance with the Inservice Testing 

Program.’’ Such inservice tests confirm 

component operability, trend 

performance, and detect incipient 

failures by indicating abnormal 

performance. This change is requested 

to implement recommendations from 

the Standard Technical Specifications 

for Combustion Engineering Plants, 

NUREG–1432, Revision 2.

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. Does the proposed change involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated? 

Response: No. 

In June 2001, the Nuclear Regulatory 

Commission (NRC) issued NUREG 1432, 

Revision 2, ‘‘Standard Technical 

Specifications Combustion Engineering 

Plants.’’ For Technical Specification 3.7.5, 

‘‘Auxiliary Feedwater (AFW) System,’’

Surveillance Requirement (SR) 3.7.5.2 

requires verification that each AFW pump’s 

developed head at the flow test point is 

greater than or equal to the required 

developed head which ensures that AFW 

pump performance has not degraded during 

the cycle. This test confirms one point on the 

pump design curve and is indicative of 

overall performance. This proposed change 

will revise San Onofre Nuclear Generating 

Station (SONGS) Surveillance Frequency to 

be consistent with NUREG 1432, Revision 2. 

This change in and of itself will have no 

effect on the probability or consequences of 

an accident previously evaluated. 

Once this change to the Technical 

Specification is approved, changes to the 

Surveillance Frequency of the AFW pumps 

would be controlled in accordance with the 

Risk-Informed Inservice Testing Program. 

Therefore, the proposed change does not 

involve a significant increase in the 

probability of consequences of any accident 

previously evaluated. 

2. Does the proposed change create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

Response: No. 

The proposed amendment will not change 

the design, configuration or method of 

operation of the plant. Therefore, the 

proposed change does not create the 

possibility of a new or different kind of 

accident from any previously evaluated. 

3. Does the proposed change involve a 

significant reduction in a margin of safety? 

Response: No. 

The proposed amendment will change the 

SR 3.7.5.2 Frequency from ‘‘31 days on a 

Staggered Test Basis’’ to ‘‘In accordance with 

the Inservice Testing Program.’’ The 

proposed change does not change the 

operation or surveillance requirements. It 

does not change the design function of any 

of AFW system components. Therefore, the 

proposed change does not involve a 

significant reduction in the margin of safety. 

Based on the above, Southern California 

Edison concludes that the proposed 

amendment present no significant hazards 

consideration under the standards set forth in 

10 CFR 50.92(c), and, accordingly a finding 

of ‘‘no significant hazards consideration’’ is 

justified.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment requests involve no 

significant hazards consideration. 

Attorney for licensee: Douglas K. 

Porter, Esquire, Southern California 

Edison Company, 2244 Walnut Grove 

Avenue, Rosemead, California 91770. 

NRC Section Chief: Stephen Dembek. 

Southern Nuclear Operating Company, 

Inc., Georgia Power Company, 

Oglethorpe Power Corporation, 

Municipal Electric Authority of Georgia, 

City of Dalton, Georgia, Docket Nos. 50–

321 and 50–366, Edwin I. Hatch Nuclear 

Plant, Units 1 and 2, Appling County, 

Georgia 

Date of amendment request:

December 2, 2002. 

Description of amendment request:

The proposed amendments change 

Technical Specification Surveillance 

Requirement 3.6.4.1.2 to require that 

only one access door in each access 

opening of the secondary containment 

be verified closed every 31 days.

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. [Does] the proposed change [* * *] 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated[?] 

The proposed change to Surveillance 

Requirement SR 3.6.4.1.2 would require that 

only one of the two secondary containment 

access doors be verified closed; presently, 

both doors are required to be verified closed. 

This change is administrative in nature in 

that it does not involve, require, or result 

from any physical change to me secondary 

containment boundary or access door 

configuration. The change to Surveillance 

Requirement SR 3.6.4.1.2 is consistent with 

TSTF Standard Technical Specification 

Change Traveler TSTF–18, Revision 1, and 

Surveillance Requirement SR 3.6.4.1.3 of 

Revision 2 of Volume 1 of NUREG–1433. As 

indicated in the ‘‘Justification’’ portion of 

Standard Technical Specification Change 

Traveler TSTF–18, Revision 1, verifying one 

of the two access doors is closed is sufficient 

to ensure that the infiltration of outside air 

does not prevent the establishment and 

preservation of the required negative 

pressure within the secondary containment. 

Indeed, neither the requirements regarding 

minimum negative pressure and maximum 

infiltration and drawdown time nor the 

actions required to be taken should these 

requirements not be met will be altered by 

me proposed Licensing amendment. 

Because the physical characteristics and 

performance requirements of the secondary 

containment will not be altered and the 

change to Surveillance Requirement SR 

3.6.4.1.2 is consistent with the current 

revision of NUREG–1433, the proposed 

Licensing amendment can not involve a 

significant increase in the probability or 

consequences of any accident previously 

evaluated. 

2. [Does] the proposed change [* * *] 

create the possibility of a new or different 

kind of accident from any previously 

evaluated[?] 

For the reasons previously discussed, 

neither the secondary containment boundary 

nor the access door configuration will be 

altered by or because of the proposed change 

to the surveillance requirement. Likewise, 

the requirements defining and governing 

secondary containment operability and 

functionality, that is, Standby Gas Treatment 

system flow rate and secondary containment 

negative pressure and drawdown limits, will 

not be changed. The secondary containment, 

including its access openings, will remain 

physically unaltered; will function as 

presently described in the Updated Final 

Safety Analysis Report [(UFSAR)]; and will 

be subject to the same structural and 

functional requirements. Under these 

circumstances, this change can not, and does 

not, create the possibility of a new or 

different kind of accident from any 

previously evaluated. 

3. [Does] the proposed change [* * *] 

involve a significant decrease in the margin 

of safety[?] 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 813

The requirements defining and governing 

secondary containment operability and 

functionality, that is, Standby Gas Treatment 

system flow rate and secondary containment 

negative pressure and drawdown limits, will 

not be changed. The secondary containment, 

including its access openings will function as 

presently described in the [* * *] UFSAR 

and will be subject to the same structural and 

functional requirements. Therefore, this 

change can not, and does not, reduce any 

margin of safety associated with the 

secondary containment function.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: Ernest L. Blake, 

Jr., Esquire, Shaw, Pittman, Potts and 

Trowbridge, 2300 N Street, NW., 

Washington, DC 20037. 

NRC Section Chief: John A. Nakoski. 

TXU Generation Company LP, Docket 

Nos. 50–445 and 50–446, Comanche 

Peak Steam Electric Station, Units 1 and 

2, Somervell County, Texas 

Date of amendment request:

December 4, 2002. 

Brief description of amendments: The 

proposed amendments revise several of 

the Required Actions in the Technical 

Specifications (TS) that require 

suspension of operations involving 

positive reactivity additions or 

suspension of operations involving 

reactor coolant system (RCS) boron 

concentration reductions. In addition, 

the proposed amendments revise several 

Limiting Conditions for Operation 

(LCO) Notes that preclude reductions in 

RCS boron concentration.

Basis for proposed no significant 

hazards consideration determination:

As required by 10 CFR 50.91(a), the 

licensee has provided its analysis of the 

issue of no significant hazards 

consideration, which is presented 

below:

1. Do the proposed changes involve a 

significant increase in the probability or 

consequences of an accident previously 

evaluated? 

Response: No. 

Overall protection system performance will 

remain within the bounds of the previously 

performed accident analyses since there are 

no hardware changes. The RTS [Reactor Trip 

System] instrumentation and reactivity 

control systems will be unaffected. Protection 

systems will continue to function in a 

manner consistent with the plant design 

basis. All design, material, and construction 

standards that were applicable prior to the 

request are maintained. 

The probability and consequences of 

accidents previously evaluated in the FSAR 

[Final Safety Analysis Report] are not 

adversely affected because the changes to the 

Required Actions and LCO Notes assure the 

limits on SDM [Shutdown Margin] and 

refueling boron concentration continue to be 

met, consistent with the analysis 

assumptions and initial conditions included 

within the safety analysis and licensing basis. 

The activities covered by this amendment 

application are routine operating evolutions. 

The proposed changes do not reduce the 

capability of reborating the RCS. 

The proposed changes will not involve a 

significant increase in the probability of any 

event initiators. The initiating event for an 

inadvertent boron dilution event, as 

discussed in FSAR Section 15.4.6, is a failure 

in the reactor makeup control system (RMCS) 

or operator error such that inventory makeup 

with the incorrect boron concentration enters 

the RCS by way of the CVCS [Chemical and 

Volume Control System]. Since the RMCS 

design is unchanged, there will be no 

initiating event frequency increase associated 

with equipment failures. However, there 

could be an increased exposure time per 

operating cycle to potential operator errors 

during TS Conditions that, heretofore, 

prohibited positive reactivity additions. As 

such, the RTS Instrumentation and RCS 

Loops TS Bases changes from TSTF 

[Technical Specification Task Force]-286, 

Revision 2, have been augmented to preclude 

the introduction of reactor makeup water into 

the RCS via the CVCS when one source range 

neutron flux channel is inoperable or when 

no RCS loop is in operation. The equipment 

and processes used to implement RCS 

boration or dilution evolutions are 

unchanged and the equipment and processes 

are commonly used throughout the 

applicable MODES under consideration. 

There will be no degradation in the 

performance of, or an increase in the number 

of challenges imposed on, safety-related 

equipment assumed to function during an 

accident situation. There will be no change 

to normal plant operating parameters or 

accident mitigation performance. 

The proposed changes will not alter any 

assumptions or change any mitigation actions 

in the radiological consequence evaluations 

in the FSAR. 

Therefore, the proposed changes do not 

involve a significant increase in the 

probability or consequences of an accident 

previously evaluated. 

2. Do the proposed changes create the 

possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

Response: No. 

There are no hardware changes nor are 

there any changes in the method by which 

any safety-related plant system performs its 

safety function. This amendment will not 

affect the normal method of plant operation 

or change any operating limits. The proposed 

changes merely permit the conduct of normal 

operating evolutions when additional 

controls over core reactivity are imposed by 

the Technical Specifications. The proposed 

changes do not introduce any new equipment 

into the plant or alter the manner in which 

existing equipment will be operated. The 

changes to operating procedures are minor, 

with clarifications provided that required 

limits must continue to be met. No 

performance requirements or response time 

limits will be affected. These changes are 

consistent with assumptions made in the 

safety analysis and licensing basis regarding 

limits on SDM and refueling boron 

concentration. 

No new accident scenarios, transient 

precursors, failure mechanisms, or limiting 

single failures are introduced as a result of 

this amendment. There will be no adverse 

effect or challenges imposed on any safetyrelated system as a result of this amendment. 

This amendment does not alter the design 

or performance of the 7300 Process 

Protection System, Nuclear Instrumentation 

System, or Solid State Protection System 

used in the plant protection systems. 

Therefore, the proposed changes do not 

create the possibility of a new or different 

kind of accident from any previously 

evaluated. 

3. Do the proposed changes involve a 

significant reduction in a margin of safety? 

Response: No. 

The proposed changes do not alter the 

limits on SDM or refueling boron 

concentration. The nominal trip setpoints 

specified in the Technical Specifications 

Bases and the safety analysis limits assumed 

in the transient and accident analyses are 

unchanged. None of the acceptance criteria 

for any accident analysis is changed. There 

will be no effect on the manner in which 

safety limits or limiting safety system settings 

are determined nor will there be any effect 

on those plant systems necessary to assure 

the accomplishment of protection functions. 

There will be no impact on the overpower 

limit, departure from nucleate boiling ratio 

(DNBR) limits, heat flux hot channel factor 

(FQ), nuclear enthalpy rise hot channel factor 

(FDH), loss of coolant accident peak cladding 

temperature (LOCA PCT), peak local power 

density, or any other margin of safety. The 

radiological dose consequence acceptance 

criteria listed in the Standard Review Plan 

will continue to be met. 

Therefore, the proposed changes do not 

involve a significant reduction in a margin of 

safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

Attorney for licensee: George L. Edgar, 

Esq., Morgan, Lewis and Bockius, 1800 

M Street, NW., Washington, DC 20036. 

NRC Section Chief: Robert A. Gramm.

Notice of Issuance of Amendments to 

Facility Operating Licenses 

During the period since publication of 

the last biweekly notice, the 

Commission has issued the following 

amendments. The Commission has 

determined for each of these 

amendments that the application 

complies with the standards and 

814 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

requirements of the Atomic Energy Act 

of 1954, as amended (the Act), and the 

Commission’s rules and regulations. 

The Commission has made appropriate 

findings as required by the Act and the 

Commission’s rules and regulations in 

10 CFR Chapter I, which are set forth in 

the license amendment. 

Notice of Consideration of Issuance of 

Amendment to Facility Operating 

License, Proposed No Significant 

Hazards Consideration Determination, 

and Opportunity for A Hearing in 

connection with these actions was 

published in the Federal Register as 

indicated. 

Unless otherwise indicated, the 

Commission has determined that these 

amendments satisfy the criteria for 

categorical exclusion in accordance 

with 10 CFR 51.22. Therefore, pursuant 

to 10 CFR 51.22(b), no environmental 

impact statement or environmental 

assessment need be prepared for these 

amendments. If the Commission has 

prepared an environmental assessment 

under the special circumstances 

provision in 10 CFR 51.12(b) and has 

made a determination based on that 

assessment, it is so indicated. 

For further details with respect to the 

action see (1) the applications for 

amendment, (2) the amendment, and (3) 

the Commission’s related letter, Safety 

Evaluation and/or Environmental 

Assessment as indicated. All of these 

items are available for public inspection 

at the Commission’s Public Document 

Room, located at One White Flint North, 

11555 Rockville Pike (first floor), 

Rockville, Maryland. Publicly available 

records will be accessible from the 

Agencywide Documents Access and 

Management Systems (ADAMS) Public 

Electronic Reading Room on the internet 

at the NRC web site, http://

www.nrc.gov/reading-rm/adams.html. If 

you do not have access to ADAMS or if 

there are problems in accessing the 

documents located in ADAMS, contact 

the NRC Public Document Room (PDR) 

Reference staff at 1–800–397–4209, 301–

415–4737 or by e-mail to pdr@nrc.gov.

Carolina Power & Light Company, 

Docket No. 50–324, Brunswick Steam 

Electric Plant, Unit 2, Brunswick 

County, North Carolina 

Date of amendment request:

September 16, 2002. 

Brief description of amendment: The 

amendment revises a license condition 

by deleting the requirement to include 

check valve MVD–V5008 in the facility 

check valve program. 

Date of issuance: December 13, 2002. 

Effective date: December 13, 2002. 

Amendment No.: 251. 

Facility Operating License No. DPR–

62: Amendment revises Appendix B, 

‘‘Additional Conditions.’’

Date of initial notice in Federal 

Register: November 12, 2002 (67 FR 

68731). 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 13, 

2002. 

No significant hazards consideration 

comments received: No. 

Calvert Cliffs Nuclear Power Plant, Inc., 

Docket Nos. 50–317 and 50–318, Calvert 

Cliffs Nuclear Power Plant, Unit Nos. 1 

and 2, Calvert County, Maryland 

Date of application for amendments:

January 31, 2002, as supplemented on 

September 18, 2002. 

Brief description of amendments: The 

amendments change the method of 

verifying boron concentration of each 

safety injection tank. Rather than taking 

a sample of each tank every 31 days, the 

revised technical specification 

surveillance requirement requires 

leakage into the tanks to be monitored 

every 12 hours and a sample to be taken 

every 6 months. 

Date of issuance: December 19, 2002. 

Effective date: As of the date of 

issuance to be implemented within 30 

days. 

Amendment Nos.: 255 and 232. 

Renewed Facility Operating License 

Nos. DPR–53 and DPR–69: Amendments 

revised the Technical Specifications. 

Date of initial notice in Federal 

Register: April 16, 2002. The 

September 18, 2002, letter provided 

clarifying information that did not 

change the initial proposed no 

significant hazards consideration 

determination. The Commission’s 

related evaluation of these amendments 

is contained in a Safety Evaluation 

dated December 19, 2002. 

No significant hazards consideration 

comments received: No. 

Connecticut Yankee Atomic Power 

Company, Docket No. 50–213, Haddam 

Neck Plant, Middlesex County, 

Connecticut 

Date of amendment request:

September 10, 2001, as supplemented 

by letters dated June 19 and November 

8, 2002. The supplemental information 

provided clarification that did not 

change the scope or the initial no 

significant hazards consideration 

determination. 

Brief description of amendment: The 

amendment revises TS 3/4.9.7 and the 

corresponding Bases to address the use 

of a single-failure-proof-handling system 

for the Spent Fuel Building and to 

remove the restriction on travel of crane 

loads in excess of 1800 pounds. 

Date of issuance: December 17, 2002. 

Effective date: As of the date of 

issuance and shall be implemented 

within 60 days from the date of 

issuance. 

Amendment No.: 198. 

Facility Operating License No. DPR–

61: The amendment revised the 

Technical Specifications. 

Date of initial notice in Federal 

Register: March 5, 2002 (67 FR 10009). 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 17, 

2002. 

No significant hazards consideration 

comments received: No. 

Duke Energy Corporation, Docket Nos. 

50–369 and 50–370, McGuire Nuclear 

Station, Units 1 and 2, Mecklenburg 

County, North Carolina

Date of application for amendments:

August 29, 2002. 

Brief description of amendments: The 

amendments revised the Technical 

Specifications 3.8.4.7, to modify the 

note to eliminate the ‘‘once per 60 

months’’ restriction on replacing the 

battery service test by the battery 

modified performance discharge test. 

Associated changes to the TS Bases are 

also included. 

Date of issuance: December 17, 2002. 

Effective date: As of the date of 

issuance and shall be implemented 

within 30 days from the date of 

issuance. 

Amendment Nos.: 209 & 190. 

Facility Operating License Nos. NPF–

9 and NPF–17: Amendments revised the 

Technical Specifications. 

Date of initial notice in Federal 

Register: November 12, 2002 (67 FR 

68733). 

The Commission’s related evaluation 

of the amendments is contained in a 

Safety Evaluation dated December 17, 

2002. 

No significant hazards consideration 

comments received: No. 

Entergy Nuclear Operations, Docket No. 

50–247, Indian Point Nuclear 

Generating Unit No. 2, Westchester 

County, New York 

Date of application for amendment:

May 30, 2002, as supplemented on 

October 31, 2002. 

Brief description of amendment: The 

amendment revised the requirements in 

several administrative programs in 

Technical Specification Section 6.0, 

‘‘Administrative Controls.’’ Specifically, 

the amendment: (1) Replaced the 

specific management titles for several 

organizational positions with generic 

titles, (2) replaced the title of the 

Quality Assurance Program Description 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 815

with a reference to the quality assurance 

program described or referenced in the 

Updated Final Safety Analysis Report, 

and (3) deleted the functions of the 

Station Nuclear Safety and the Nuclear 

Facilities Safety Committees and the 

Vice President-Nuclear Power since 

their duties and responsibilities are 

described in the Quality Assurance 

Program Description. 

Date of issuance: December 17, 2002. 

Effective date: As of the date of 

issuance to be implemented within 60 

days. 

Amendment No.: 235. 

Facility Operating License No. DPR–

26: Amendment revised the Technical 

Specifications. 

Date of initial notice in Federal 

Register: June 25, 2002 (67 FR 42824). 

The October 31 supplemental letter 

provided clarifying information that did 

not expand the scope of the amendment 

or change the initial proposed no 

significant hazards consideration 

determination. 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 17, 

2002. 

No significant hazards consideration 

comments received: No. 

Indiana Michigan Power Company, 

Docket No. 50–315, Donald C. Cook 

Nuclear Plant, Unit 1, Berrien County, 

Michigan 

Date of application for amendment:

June 28, 2002, as supplemented on 

October 15 (two separate letters), 

October 17, November 15, and 

December 6, 2002. 

Brief description of amendment: The 

amendment increases the licensed 

reactor core power level by 1.66 percent 

from 3250 megawatts thermal (MWt) to 

3304 MWt. The power level increase is 

considered a measurement uncertainty 

recapture power uprate. 

Date of issuance: December 20, 2002. 

Effective date: As of the date of 

issuance and shall be implemented 

within 60 days. 

Amendment No.: 273. 

Facility Operating License No. DPR–

58: Amendment revises the Technical 

Specifications. 

Date of initial notice in Federal 

Register: July 23, 2002 (67 FR 48219). 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 20, 

2002. 

No significant hazards consideration 

comments received: No. 

Omaha Public Power District, Docket 

No. 50–285, Fort Calhoun Station, Unit 

No. 1, Washington County, Nebraska 

Date of amendment request: October 

8, 2002. 

Brief description of amendment: The 

amendment revised Technical 

Specification 2.7, ‘‘Electrical Systems,’’

to increase the amount of diesel fuel oil 

required for seven days of emergency 

diesel generator operation. 

Date of issuance: December 16, 2002. 

Effective date: December 16, 2002, 

and to be implemented within 30 days 

of issuance. 

Amendment No.: 213. 

Facility Operating License No. DPR–

40: Amendment revised the Technical 

Specifications. 

Date of initial notice in Federal 

Register: November 12, 2002 (67 FR 

68741). 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 16, 

2002. 

No significant hazards consideration 

comments received: No. 

Southern Nuclear Operating Company, 

Inc., Georgia Power Company, 

Oglethorpe Power Corporation, 

Municipal Electric Authority of Georgia, 

City of Dalton, Georgia, Docket Nos. 50–

321 and 50–366, Edwin I. Hatch Nuclear 

Plant, Units 1 and 2, Appling County, 

Georgia 

Date of application for amendments:

June 24, 2002, as supplemented by letter 

dated September 24, 2002.

Brief description of amendments: The 

amendments delete Technical 

Specification 5.5.3, ‘‘Post Accident 

Sampling System (PASS),’’ and thereby 

eliminate the requirements to have and 

maintain the PASS at Plant Hatch. 

Date of issuance: December 18, 2002. 

Effective date: As of the date of 

issuance and shall be implemented 

within 30 days from the date of 

issuance. 

Amendment Nos.: 235 & 177. 

Renewed Facility Operating License 

Nos. DPR–57 and NPF–5: Amendments 

revised the Technical Specifications. 

Date of initial notice in Federal 

Register: August 6, 2002 (67 FR 50958). 

The supplement dated September 24, 

2002, provided clarifying information 

that did not change the scope of the 

June 24, 2002, application nor the initial 

proposed no significant hazards 

consideration determination. 

The Commission’s related evaluation 

of the amendments is contained in a 

Safety Evaluation dated December 18, 

2002. 

No significant hazards consideration 

comments received: No 

STP Nuclear Operating Company, 

Docket Nos. 50–498 and 50–499, South 

Texas Project, Units 1 and 2, Matagorda 

County, Texas 

Date of amendments request: October 

24, 2001, as supplemented by 

correspondent e-mails dated August 27, 

2002, and September 24, 2002. 

Brief description of amendments: The 

amendments consist of relocating 

various Technical Specifications (TSs) 

to the Technical Specification 

Requirements Manual (TRM). The 

amendments will relocate TSs 3/4.1.3.3, 

3/4.3.3.2, 3/4.3.3.11, 3/4.4.7, 3/4.4.9.2, 

3/4.3.4.11, 3/4.7.2, 3/4.7.10, 3/4.9.3, 3/

4.9.5, 3/4.9.7, 3/4.10.5, and 3/4.11.2.5 to 

the TRM. Their associated bases will 

also be relocated to the TRM to be 

consistent with relocation of the various 

TSs. In addition, the proposed 

amendment corrects various 

typographical and page numbering 

errors, deletes an outdated one-time 

exception, and makes minor formal 

changes to improve consistency. 

Date of issuance: The license 

amendment is effective as of its date of 

issuance and shall be implemented 

within 6 months from the date of 

issuance. 

Effective date: December 17, 2002. 

Amendment Nos.: Unit 1—145; Unit 

2—33. 

Facility Operating License Nos. NPF–

76 and NPF–80: The amendments 

revised the Technical Specifications. 

Date of initial notice in Federal 

Register: February 5, 2002 (67 FR 

5334). 

The Commission’s related evaluation 

of the amendments is contained in a 

Safety Evaluation dated December 17, 

2002. 

No significant hazards consideration 

comments received: No. 

Tennessee Valley Authority, Docket 

Nos. 50–259, 50–260, and 50–296, 

Browns Ferry Nuclear Plant, Units 1, 2, 

and 3, Limestone County, Alabama 

Date of application for amendments:

September 3, 2002. 

Description of amendment request:

The proposed amendment revised 

Surveillance Requirement (SR) 3.0.3 to 

extend the delay period, before entering 

a Limiting Condition for Operation, 

following a missed surveillance. The 

delay period is extended from the 

current limit of ‘‘* * * up to 24 hours 

or up to the limit of the specified 

Frequency, whichever is less’’ to ‘‘* * * 

up to 24 hours or up to the limit of the 

specified Frequency, whichever is 

greater.’’ In addition, the following 

requirement is added to SR 3.0.3: ‘‘A 

risk evaluation shall be performed for 

816 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

any Surveillance delayed greater than 

24 hours and the risk impact shall be 

managed.’’

Date of issuance: December 23, 2002. 

Effective date: Date of issuance, to be 

implemented within 45 days. 

Amendment Nos.: 243, 278, 237. 

Facility Operating License Nos. DPR–

33, DPR–52, and DPR–68: Amendments 

revised the Technical Specifications. 

Date of initial notice in Federal 

Register: October 15, 2002 (67 FR 

63698). 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 23, 

2002. 

No significant hazards consideration 

comments received: No. 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 23, 

2002. 

No significant hazards consideration 

comments received: No. 

Tennessee Valley Authority, Docket No. 

50–390 Watts Bar Nuclear Plant , Unit 

1, Rhea County, Tennessee 

Date of application for amendments:

September 3, 2002. 

Description of amendment request:

The proposed amendment revises 

Surveillance Requirement (SR) 3.0.3 to 

extend the delay period, before entering 

a Limiting Condition for Operation, 

following a missed surveillance. The 

delay period is extended from the 

current limit of ‘‘* * * up to 24 hours 

or up to the limit of the specified 

Frequency, whichever is less’’ to ‘‘* * * 

up to 24 hours or up to the limit of the 

specified Frequency, whichever is 

greater.’’ In addition, the following 

requirement is added to SR 3.0.3: ‘‘A 

risk evaluation shall be performed for 

any Surveillance delayed greater than 

24 hours and the risk impact shall be 

managed.’’

Date of issuance: December 11, 2002. 

Effective date: Date of issuance, to be 

implemented within 45 days. 

Amendment No.: 42. 

Facility Operating License No. NPF–

90: Amendment revises the Technical 

Specifications. 

Date of initial notice in Federal 

Register: October 15, 2002 (67 FR 

63699). 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 11, 

2002. 

No significant hazards consideration 

comments received: No. 

Virginia Electric and Power Company, et 

al., Docket No. 50–280, Surry Power 

Station, Unit 1, Surry County, Virginia 

Date of application for amendment:

October 15, 2001, as supplemented 

November 8, 2001, June 28, 2002, and 

July 25, 2002 . 

Brief Description of amendment: This 

amendment revises the Technical 

Specifications to allow a one-time 

change in the Appendix J Type A 

containment integrated leakage rate test 

interval from the required 10 years to a 

test interval of 15 years at Surry Power 

Station, Unit 1. 

Date of issuance: December 16, 2002. 

Effective date: December 16, 2002. 

Amendment No.: 233. 

Facility Operating License No. DPR–

32: Amendment changes the Technical 

Specifications. 

Date of initial notice in Federal 

Register: December 12, 2001 (66 FR 

64309). The November 8, 2001, June 28, 

2002, and July 25, 2002, supplements 

contained clarifying information only 

and did not change the initial no 

significant hazards consideration 

determination or expand the scope of 

the initial application. 

The Commission’s related evaluation 

of the amendment is contained in a 

Safety Evaluation dated December 16, 

2002. 

No significant hazards consideration 

comments received: No.

Dated at Rockville, Maryland, this 30th day 

of December 2002.

For the Nuclear Regulatory Commission. 

Stuart A. Richards, 

Acting Director, Division of Licensing Project 

Management, Office of Nuclear Reactor 

Regulation.

[FR Doc. 03–156 Filed 1–6–03; 8:45 am] 

BILLING CODE 7590–01–P

OVERSEAS PRIVATE INVESTMENT 

CORPORATION 

January 23, 2003 Public Hearing 

Time and Date: 1 p.m., Thursday, 

January 23, 2003. 

Place: Offices of the Corporation, 

Twelfth Floor Board Room, 1100 New 

York Avenue, NW., Washington, DC. 

Status: Hearing open to the public at 

1 p.m. 

Purpose: Hearing in conjunction with 

each meeting of OPIC’s Board of 

Directors, to afford an opportunity for 

any person to present views regarding 

the activities of the Corporation. 

Procedures: Individuals wishing to 

address the hearing orally must provide 

advance notice to OPIC’s Corporate 

Secretary no later than 5 p.m. Tuesday, 

January 21, 2003. The notice must 

include the individual’s name, 

organization, address, and telephone 

number, and a concise summary of the 

subject matter to be presented. 

Oral presentations may not exceed ten 

(10) minutes. The time for individual 

presentations may be reduced 

proportionately, if necessary, to afford 

all participants who have submitted a 

timely request to participate an 

opportunity to be heard. 

Participants wishing to submit a 

written statement for the record must 

submit a copy of such statement to 

OPIC’s Corporate Secretary no later than 

5 p.m., Tuesday, January 21, 2003. Such 

statements must be typewritten, doublespaced, and may not exceed twenty-five 

(25) pages. 

Upon receipt of the required notice, 

OPIC will prepare an agenda for the 

hearing identifying speakers, setting 

forth the subject on which each 

participant will speak, and the time 

allotted for each presentation. The 

agenda will be available at the hearing. 

A written summary of the hearing will 

be compiled, and such summary will be 

made available, upon written request to 

OPIC’s Corporate Secretary, at the cost 

of reproduction. 

Contact Person for Information:

Information on the hearing may be 

obtained from Connie M. Downs at (202) 

336–8438, via facsimile at (202) 218–

0136, or via e-mail at cdown@opic.gov.

Dated: January 3, 2003. 

Connie M. Downs, 

OPIC Corporate Secretary.

[FR Doc. 03–313 Filed 1–3–03; 11:17 am] 

BILLING CODE 3210–01–M

SECURITIES AND EXCHANGE 

COMMISSION 

Submission for OMB Review; 

Comment Request 

[Extension: Rule 17a–7; SEC File No. 270–

238; OMB Control No. 3235–0214.]

Upon Written Request, Copies Available 

From: Securities and Exchange Commission, 

Office of Filings and Information Services, 

Washington, DC 20549.

Notice is hereby given that, pursuant 

to the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3520), the Securities 

and Exchange Commission (the 

‘‘Commission’’) has submitted to the 

Office of Management and Budget 

(‘‘OMB’’) a request for extension of the 

previously approved collection of 

information described below. 

Rule 17a–7 [17 CFR 270.17a–7] under 

the Investment Company Act of 1940 

(the ‘‘Act’’) is entitled ‘‘Exemption of 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 817

1The written records are required to set forth a 

description of the security purchased or sold, the 

identity of the person on the other side of the 

transaction, and the information or materials upon 

which the board of directors’ determination that the 

transaction was in compliance with the procedures 

was made.

2These estimates are based on conversations with 

the examination and inspections staff of the 

Commission and fund representatives. Based on 

these conversations, the Commission staff estimates 

that most investment companies (4,000 of the 

estimated 4,500 registered investment companies) 

have adopted procedures for compliance with rule 

17a–7. Of these 4,000 investment companies, the 

Commission staff estimates that each year 

approximately 25% (1,000) enter into transactions 

affected by rule 17a–7.

3This estimate is based in turn on the staff’s 

estimate that the approximately 1,000 funds that 

rely on rule 17a–7 annually engage in an average 

of 8 rule 17a–7 transactions and spend 

approximately 15 minutes per transaction on 

recordkeeping required by the rule.

1 15 U.S.C. 78l(d).

2 17 CFR 240.12d2–2(d).

3 15 U.S.C. 78l(b).

4 15 U.S.C. 78l(g).

certain purchase or sale transactions 

between an investment company and 

certain affiliated persons thereof.’’ It 

provides an exemption from section 

17(a) of the Act for purchases and sales 

of securities between registered 

investment companies, which are 

affiliated persons or affiliated persons of 

affiliated persons of each other, or 

between a registered investment 

company and an affiliated person or an 

affiliated person of an affiliated person, 

when the affiliation arises solely 

because of a common adviser, director, 

or officer. Rule 17a–7 requires 

investment companies to keep various 

records in connection with purchase or 

sale transactions affected by the rule. 

The rule requires the board of directors 

of an investment company to establish 

procedures reasonably designed to 

ensure that all conditions of the rule 

have been satisfied. If an investment 

company enters into a purchase or sale 

transaction with an affiliated person, the 

rule requires the investment company to 

compile and maintain written records of 

the transaction.1 In addition, under the 

rule, the board is required to determine, 

at least on a quarterly basis, that all 

affiliated transactions made during the 

preceding quarter were made in 

compliance with these established 

procedures. The Commission’s 

examination staff uses these records to 

evaluate transactions between affiliated 

investment companies for compliance 

with the rule.

The Commission estimates that 

approximately 1,000 investment 

companies enter into transactions 

affected by rule 17a–7 each year and, 

therefore, are subject to the rule’s 

information collection requirements.2

The average annual burden for rule 17a–

7 is estimated to be approximately two 

burden hours per respondent, for an 

annual total of 2,000 burden hours for 

all respondents.3 The estimates of 

burden hours are made solely for the 

purposes of the Paperwork Reduction 

Act, and are not derived from a 

comprehensive or even a representative 

survey or study of the costs of 

Commission rules.

Rule 17a–7 requires investment 

companies to maintain and preserve 

permanently a written copy of the 

procedures governing rule 17a–7 

transactions. In addition, investment 

companies are required to maintain 

written records of each rule 17a–7 

transaction for a period of not less than 

six years from the end of the fiscal year 

in which the transaction occurred. The 

collection of information required by 

rule 17a–7 is necessary to obtain the 

benefits of the rule. Responses will not 

be kept confidential. 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 control number. 

Please direct general comments 

regarding the above information to the 

following persons: (i) Desk Officer for 

the Securities and Exchange 

Commission, Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, New 

Executive Office Building, Washington, 

DC 20503; and (ii) Kenneth A. Fogash, 

Acting Associate Executive Director, 

Office of Information Technology, 

Securities and Exchange Commission, 

450 5th Street, NW., Washington, DC 

20549. Comments must be submitted to 

OMB within 30 days of this notice.

Dated: December 27, 2002. 

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–271 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

Issuer Delisting; Notice of Application 

To Withdraw From Listing and 

Registration (HSBC Bank plc, To 

Withdraw From Listing and 

Registration its $500m 7.625% 

Subordinated Notes (due June 15, 

2006) and $300m 6.95% Subordinated 

Notes (due March 15, 2011) From the 

New York Stock Exchange, Inc. File 

No. 1–87110 

December 31, 2002. 

HSBC Bank plc, a public limited 

company incorporated under the laws of 

England and Wales (‘‘Issuer’’), has filed 

an application with the Securities and 

Exchange Commission (‘‘Commission’’), 

pursuant to section 12(d) of the 

Securities Exchange Act of 1934 

(‘‘Act’’)1 and Rule 12d2–2(d) 

thereunder,2 to withdraw its $500m 

7.625% Subordinated Notes (due June 

15, 2006) and $300m 6.95% 

Subordinated Notes (due March 15, 

2011) (‘‘Securities’’), from listing and 

registration on the New York Stock 

Exchange, Inc. (‘‘NYSE’’ or 

‘‘Exchange’’).

The Issuer stated in its application 

that it has complied with the NYSE’s 

rules governing an issuer’s voluntary 

withdrawal of a security from listing 

and registration. The Issuer’s 

application relates solely to the 

Security’s withdrawal from listing on 

the NYSE and from registration under 

section 12(b) of the Act 3 and shall not 

affect its obligation to be registered 

under section 12(g) of the Act.4

The Board of Directors (‘‘Board’’) of 

the Issuer approved a resolution on 

November 27, 2002 to withdraw the 

Issuer’s Securities from listing on the 

NYSE. In making the decision to 

withdraw its Securities from the NYSE, 

the Issuer states the Securities are not 

widely held in the United States and the 

ongoing burdens associated with 

maintaining the listing are considered 

onerous and of little benefit to investors. 

The Issuer states that it intends to 

consolidate, as far as possible, the 

listings of all its Securities on a single 

stock exchange and be subject to the 

ongoing reporting requirements of that 

exchange. In addition, the Issuer states 

that all the terms and conditions of the 

Securities will remain unchanged. The 

Issuer states that its Securities began 

trading on the London Stock Exchange 

on December 20, 2002.

Any interested person may, on or 

before January 21, 2003 submit by letter 

to the Secretary of the Securities and 

Exchange Commission, 450 Fifth Street, 

NW., Washington, DC 20549–0609, facts 

bearing upon whether the application 

has been made in accordance with the 

rules of the NYSE and what terms, if 

any, should be imposed by the 

Commission for the protection of 

investors. The Commission, based on 

the information submitted to it, will 

issue an order granting the application 

after the date mentioned above, unless 

the Commission determines to order a 

hearing on the matter.

818 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

5 17 CFR 200.30–3(a)(1).

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b–4.

3See letter from Michael Cavalier, Associate 

General Counsel, Amex, to Nancy Sanow, Assistant 

Director, Division of Market Regulation, SEC, dated 

December 20, 2002, and enclosures (‘‘Amendment 

No. 1’’). Amendment No. 1 corrected a 

typographical error in the text of the proposed 

amendment.

4See File No. SR–Amex–92–41, approved in 

Release No. 34–34089, May 26, 1994 and File No. 

SR–Amex–01–02, approved in Release No. 34–

44123, March 28, 2001.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority. 5

Jonathan G. Katz, 

Secretary.

[FR Doc. 03–221 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47113; File No. SR-Amex2002-89] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change and 

Amendment No. 1 by American Stock 

Exchange LLC Relating to Crossing 

Procedures for Clean Agency Crosses 

December 31, 2002. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b-4 thereunder,2

notice is hereby given that on November 

5, 2002, the American Stock Exchange 

LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with 

the Securities and Exchange 

Commission (‘‘Commission’’ or ‘‘SEC’’) 

the proposed rule change as described 

in Items I, II, and III below, which Items 

have been prepared by the Exchange. 

On December 23, 2002, the Exchange 

filed Amendment No. 1 to the proposed 

rule change.3 The Commission is 

publishing this notice to solicit 

comments on the proposed rule change, 

as amended, from interested persons.

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

Amex Rule 126(g), Commentary .02 to 

provide that orders of 5,000 shares or 

more for the account of a non-member 

organization may be crossed at a price 

at or within the bid or offer without 

being broken up by a specialist or 

Registered Trader at the cross price. The 

text of the proposed rule is below. 

Proposed new language is in italics; 

proposed deletions are in brackets.

* * * * *

Rule 126(g) 

Commentary 

.02 When a member has an order to 

buy and an order to sell an equivalent 

amount of the same security, and both 

orders are of 5,000 shares or more and 

are for the accounts of persons who are 

not members or member organizations, 

the member may ‘‘cross’’ those orders at 

a price at or within the prevailing 

quotation. The member’s bid or offer 

shall be entitled to priority at such cross 

price, irrespective of pre-existing bids or 

offers at that price. The member shall 

follow the crossing procedures of Rule 

151, and another member may trade 

with either the bid or offer side of the 

cross transaction only to provide a price 

which is better than the cross price as 

to all or part of such bid or offer. A 

member who is providing a better price 

to one side of the cross transaction must 

trade with all other market interest 

having priority at that price before 

trading with any part of the cross 

transaction. No member may break up 

the proposed cross transaction, in whole 

or in part, at the cross price. No 

specialist or Registered Trader may 

effect a proprietary transaction to 

provide price improvement to one side 

or the other of a cross transaction 

effected pursuant to this Commentary 

.02. A transaction effected at the cross 

price in reliance on this Commentary 

.02 shall be printed as ‘‘stopped stock’’.

* * * * *

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

forth in sections A, B, and C below, of 

the most significant aspects of such 

statements.

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Amex Rule 126 (Precedence of Bids 

and Offers) sets out rules governing 

priority and precedence of bids and 

offers on the Exchange Floor, and 

generally provides that bids and offers 

are entitled to precedence based on 

time, with a member bidding at the 

highest price (offering at the lowest 

price) entitled to priority, and members 

simultaneously bidding at the highest 

price (offering at the lowest price) 

entitled to be on parity and divide 

executions at their price after a previous 

sale removes all bids and offers from the 

Floor. Commentary .02 to Amex Rule 

126(g) applies only to agency (that is, 

both orders for accounts of nonmembers) crosses (referred to herein as 

‘‘clean crosses’’) to buy and sell orders 

of 5,000 shares or more. This 

commentary provides that a member 

may cross those orders at a price at or 

within the prevailing quotation, with 

such orders entitled to priority at the 

cross price over previously entered bids 

and offers. When crossing these orders, 

the member must follow the crossing 

procedures of Amex Rule 151 and 

another member may trade with either 

the bid or offer side of the cross, but 

only to provide price improvement to 

all or part of the bid or offer. In 

addition, the member must trade with 

all other market interest having time 

priority at that price before trading with 

any part of the cross transaction. 

The Exchange implemented 

Commentary .02 to facilitate execution 

of block size crosses on the Amex. In 

implementing this exception to the 

Exchange’s rules of precedence, and, in 

reducing minimum share size required 

to permit a clean cross from 25,000 to 

5,000 shares, the Exchange was 

responding competitively to regional 

exchanges that were attracting Amex 

orders because orders to cross are not 

readily broken up by other trading 

interest in those markets, which may 

lack a trading crowd or limit orders on 

specialists’ books.4

A member currently is not permitted 

to break up a proposed clean agency 

cross at the cross price, but may trade 

with the bid or offer side to provide 

price improvement to all or part of the 

bid or offer. The Exchange proposes to 

amend Amex Rule 126(g), Commentary 

.02 to provide that orders of 5,000 

shares or more for the account of a nonmember or member organization may be 

crossed at a price at or within the bid 

or offer without being broken up by a 

specialist or Registered Trader acting as 

principal. The proposed rule would still 

enable members representing agency 

orders to break up the cross to provide 

price improvement to all or part of the 

bid or offer. The purpose of the rule is 

to continue to reduce the amount of 

crossing activity lost to regional 

exchanges or the third market. Because 

clean crosses are required under Amex 

Rule 151 to be effected at the minimum 

price variation, since the advent of 

decimal pricing, it is possible for the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 819

5 15 U.S.C. 78(f)(b).

6 15 U.S.C. 78(f)(b)(5). 7 17 CFR 200.30–3(a)(12).

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b–4.

3See August 21, 2002 letter from Barbara Z. 

Sweeney, Senior Vice President and Corporate 

Secretary, NASD, to Katherine A. England, 

Assistant Director, Division of Market Regulation 

(‘‘Division’’) Commission, and attachments 

(‘‘Amendment No. 1’’). In Amendment No. 1, the 

NASD provided new proposed rule language that 

completely replaces and supersedes the original 

proposed rule language, and made minor technical 

amendments to the rest of the filing.

4See Securities Exchange Act Release No. 46417 

(August 23, 2002), 67 FR 55893.

5August 19, 2002 letter from Mary Yeager, 

Assistant Secretary, New York Stock Exchange, Inc. 

(‘‘NYSE’’) to Jonathan G. Katz, Secretary, 

Commission (‘‘NYSE Letter’’); September 17, 2002 

letter from Lanny A. Schwartz, Philadelphia Stock 

Exchange, Inc. (‘‘Phlx’’) to Jonathan G. Katz, 

Secretary, Commission (‘‘Phlx Letter’’); September 

18, 2002 letter from Edward J. Joyce, President and 

Chief Operating Officer, Chicago Board Options 

Exchange (‘‘CBOE’’) to Jonathan G. Katz, Secretary, 

Commission (‘‘CBOE Letter’’); September 19, 2002 

letter from Thomas W. Sexton, Vice President and 

General Counsel, National Futures Association 

Continued

specialist or other members to interfere 

with a cross while providing price 

improvement of only $.01 to a portion 

of the cross. This may result in a 

perception that specialists or Registered 

Traders will break up a proposed clean 

cross transaction by trading for their 

own accounts at a minimally improved 

price ahead of a public customer on the 

other side of the cross. This perception 

could encourage a loss of crossing 

activity to other markets. 

Amex clean cross procedures will 

continue to preserve auction market 

principles by providing the possibility 

of price improvement (because members 

must follow Amex Rule 151 crossing 

procedures), and by requiring that 

members trade with other market 

interest having time priority at that 

price before trading with any part of the 

cross transaction. In addition, the 

Exchange believes the proposal will 

enhance competition among markets in 

the execution of agency crosses.

2. Statutory Basis 

The Exchange believes the proposed 

rule change is consistent with Section 

6(b) 5 of the Act in general and furthers 

the objectives of Section 6(b)(5) 6 in 

particular in that it is designed to 

prevent fraudulent and manipulative 

acts and practices, to promote just and 

equitable principles of trade, to foster 

cooperation and coordination with 

persons engaged in facilitating 

transactions in securities, to remove 

impediments to and perfect the 

mechanism of a free and open market 

and a national market system, to protect 

investors and the public interest and is 

not designed to permit unfair 

discrimination between customers, 

issuers, brokers, or dealers.

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any burden on competition. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the Exchange consents, 

the Commission will: 

(A) By order approve such proposed 

rule change, or 

(B) Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Persons making written submissions 

should file six copies thereof with the 

Secretary, Securities and Exchange 

Commission, 450 Fifth Street, NW., 

Washington, DC 20549–0609. Copies of 

the submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room. Copies of such filing will also be 

available for inspection and copying at 

the principal office of the Amex. All 

submissions should refer to file number 

SR–Amex–2002–89 and should be 

submitted by January 28, 2003.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.7

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–269 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47106; File No. SR–NASD–

2002–99] 

Self-Regulatory Organizations; Order 

Granting Approval of Proposed Rule 

Change and Amendment No. 1 by the 

National Association of Securities 

Dealers, Inc., and Notice of Filing and 

Order Granting Accelerated Approval 

to Amendment No. 2 Relating to Gross 

Income Assessments and Personnel 

Assessments 

December 30, 2002. 

I. Introduction 

On July 24, 2002, the National 

Association of Securities Dealers, Inc. 

(‘‘NASD’’or ‘‘Association’’) filed with 

the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

to section 19(b)(1) of the Securities and 

Exchange Act of 1934 (‘‘Act’’) 1 and Rule 

19b–4 thereunder,2 a proposed rule 

change to modify its Member Regulation 

(including Enforcement) pricing 

structures to: (1) Implement a threetiered flat rate for the Gross Income 

Assessment (‘‘GIA’’) that would be 

applied to gross FOCUS revenue and 

would eliminate existing deductions 

and exclusions; (2) use the Personnel 

Assessment as a more prominent 

assessable base to fund Member 

Regulation activities. On August 21, 

2002, the NASD amended the proposal.3

The proposed rule change, as modified 

by Amendment No. 1, was published for 

notice and comment in the Federal 

Register on August 30, 2002.4

The Commission received 13 

comment letters on the proposed rule 

change.5 On November 29, 2002, the 

820 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

(‘‘NFA’’) to Jonathan G. Katz, Secretary, 

Commission (‘‘NFA Letter’’); September 19, 2002 

letter from Patrice Blanc, Chairman and Chief 

Executive Officer, Fimat USA, Inc. (‘‘Fimat’’) to 

Jonathan G. Katz, Secretary, Commission (‘‘Fimat 

Letter’’); September 20, 2002 letter from Catherine 

D. Dixon, Assistant Secretary of the Commission, 

U.S. Commodity Futures Trading Commission 

(‘‘CFTC’’) to Jonathan G. Katz, Secretary, 

Commission (‘‘CFTC Letter’’); September 26, 2002 

letter from Stuart J. Kaswell, Senior Vice President 

and General Counsel, Securities Industry 

Association (‘‘SIA’’) to Jonathan G. Katz, Secretary, 

Commission (‘‘SIA Letter’’); September 20, 2002 

letter from David J. Vitale, President and Chief 

Executive Officer, Board of Trade of the City of 

Chicago, Inc., James J. McNulty, President and Chief 

Executive Officer, Chicago Mercantile Exchange, 

Inc., and J. Robert Collins, President and Chief 

Executive Officer, New York Mercantile Exchange, 

Inc. to Jonathan G. Katz, Secretary, Commission 

(‘‘Mercantile Letter’’); September 23, 2002 letter 

from Christopher K. Hehmeyer, Co-Chairman, and 

Carl W. Gilmore, General Counsel, both of 

Goldenberg, Hehmeyer and Co. (‘‘Goldenberg’’) to 

Jonathan G. Katz, Secretary, Commission 

(‘‘Goldenberg Letter’’) September 20, 2002 letter 

from John M. Damgard, President, Futures Industry 

Association, Inc. (‘‘FIA’’) to Jonathan G. Katz, 

Secretary, Commission (‘‘FIA Letter’’); September 

23, 2002 letter from Brad W. Corey, Chief Financial 

Officer, Man Financial Inc. (‘‘Man’’) to Jonathan G. 

Katz, Secretary, Commission (‘‘Man Letter’’); 

September 26, 2002 letter from Ronald H. Filler, 

Senior Vice President, Lehman Brothers, Inc. 

(‘‘Lehman’’) to Jonathan G. Katz, Secretary, 

Commission (‘‘Lehman Letter’’); September 20, 

2002 letter from Thomas O’Brien, Chief Financial 

Officer, TransMarket Group, L.L.C. (‘‘TransMarket’’) 

to Jonathan G. Katz, Secretary, Commission 

(‘‘TransMarket Letter’’).

2November 27, 2002 letter from Barbara Z. 

Sweeney, Senior Vice President and Corporate 

Secretary, NASD, to Katherine A. England, 

Assistant Director, Division, Commission (‘‘NASD 

Response Letter’’) and attachments (collectively, 

‘‘Amendment No. 2’’). In Amendment No. 2, the 

NASD excluded commodities income from Gross 

Revenue for purposes of the GIA.

7See footnote 5, supa. The Commission notes 

that, in proposing to modify its regulatory pricing 

structure, the NASD filed the instant proposed rule 

change in tandem with SR–NASD–2002–98. See

Securities Exchange Act Release No. 46416 (August 

23, 2002), 67 FR 55901 (August 30, 2002). SR–

NASD–2002–98 was effective upon filing with the 

Commission. 15 U.S.C. 78s(b)(3)(A)(ii), 17 CFR 

240.19b-4(f)(2). Because the NASD’s proposed 

changes to its regulatory pricing structure were split 

between two separate yet related rule filings, some 

of the commenters expressed opposition to the 

restructuring, generally, without raising specific 

concerns about SR–NASD–2002–99. See NYSE 

Letter; Phlx Letter; and SIA Letter at 1–2 (absence 

of the effective rate of the NASD’s proposed trading 

activity fee makes it impossible for SIA member 

firms to determine the impact of all elements of the 

NASD’s proposed pricing structure). No 

commenters objected to the Personnel Assessment 

specifically. Some commenters questioned whether 

the NASD’s proposed restructuring as a whole 

would be revenue neutral. See e.g., NFA Letter at 

1 (‘‘NASD claims that its entire proposal would be 

revenue neutral, but it does not provide any figures 

to support that claim.’’).

8See e.g., NYSE Letter; CBOE Letter at 3; NFA 

Letter at 3–4; Fimat Letter at 1–2; Mercantile Letter 

at 1; Lehman Letter at 2; Man Letter at 2; 

TransMarket Letter; FIA Letter at 1 (the proposal 

‘‘ * * * unfairly penalizes member firms that 

derive a significant portion of their revenue from 

activities unrelated to their securities business, 

which are not subject to the oversight of the NASD 

and with respect to which the NASD provides no 

regulatory services.’’) and at 4–5.

9See e.g., CFTC Letter at 1; NFA Letter at 1–2 

(GIA will collect income via FOCUS reports that is 

unrelated to securities, such as over-the-counter 

derivatives, cash commodities, futures, and foreign 

exchange); Fimat Letter (GIA will have adverse and 

disproportionate impact on combined brokerdealers/futures commission merchants by allowing 

the NASD to collect fees on revenue that does not 

come from securities-related business); Mercantile 

Letter at 1, 3 (‘‘* * * there is no nexus between the 

NASD fee and its regulatory responsibilities in the 

commodity industry.’’); Goldenberg Letter at 1 

(Goldenberg will experience significant increase in 

its GIA, though ‘‘not a single customer * * * would 

be entitled to utilize any of the regulatory services 

of the NASD.’’.

10See NFA Letter at 4–5; FIA Letter at 2–3; Man 

Letter at 3.

11See Phlx Letter at 1; Mercantile Letter at 1.

12Mercantile Letter at 4 (‘‘NFA could also decide 

to impose fees on dually registered members with 

respect to their securities-related transactions * * * 

duplicative fees would be imposed at the expense 

of members’ profit margin, or, alternatively, such 

fees would merely be passed on by the members to 

the ultimate customers.’’). See also Fimat Letter at 

2.

13NASD Response Letter at 2–3. The Commission 

notes that the NASD Response Letter speaks of 15 

comment letters, because the NASD listed comment 

letters received on the instant filing and on SR–

NASD–2002–98. There are only 13 letters specific 

to the instant filing, however, and the NASD will 

address comments relating to SR–NASD–2002–98 at 

a later time.

14 Id. at 5. The NASD also noted that it removed 

deductions and exclusions that were used 

inconsistently by member firms from the GIA 

equation. Id. However, the NASD reinstated the 

exclusion for commodities income. Noting that 

some of its member firms conduct securities and 

commodities business in a single, jointly registered 

entity, while other members conduct a substantially 

similar business in separate entities with separate 

registrations, the NASD determined that ‘‘to subject 

those conducting securities and commodities 

business in a single jointly registered entity to the 

increased expense burden (when the commodities 

income is already assessed under a comparable 

regulatory scheme) would result in similar entities 

receiving different treatment.’’ Id.

15NASD Response Letter at 7.

16 Id. at 8.

NASD filed a response to the comment 

letters and simultaneously amended the 

proposed rule change.6 This order 

approves the proposed rule change as 

modified as Amendment No. 1. 

Simultaneously, the Commission 

provides notice of filing of Amendment 

No. 2 and grants accelerated approval of 

Amendment No. 2.

II. Summary of Comments 

The Commission received 13 

comment letters on the proposed rule 

change, all in opposition to the 

proposal.7

Many commenters objected to the 

proposal because they believe the 

proposed fees are not limited to 

recovery of costs for services performed 

by the NASD.8 For example, 

commenters expressed disapproval of 

the NASD’s proposed changes to the 

manner in which it calculates the GIA, 

stating the new method of calculating 

the GIA would include revenue from 

transactions for which there is no 

regulatory nexus between the 

transactions and the NASD, including 

transactions that do not involve 

securities.9 Some commenters 

disapprove of the proposal because they 

believe the amount of the GIA will have 

an inverse relationship to the resources 

that the NASD must expend on firms. In 

other words, the new method of 

calculating the GIA allegedly would 

result in a greater financial impact on 

firms for which the NASD plays a 

smaller regulatory role.10

Commenters objected to the proposal 

because they believe the NASD will be 

charging its members who have dual 

memberships for regulatory services in 

relation to transactions in covered 

securities (as defined in the proposals) 

that are effected on other markets.11

Additionally, the commenters expressed 

concern about the precedent the 

proposal will set. For example, if the 

NASD is allowed to assess a fee based 

on its member’s futures business, the 

NFA may determine that it is acceptable 

to assess fees based on its members’

securities business.12

In its response to the commenters, the 

NASD focused only on comments made 

in connection with the instant proposed 

rule change.13 The NASD expressed its 

belief that the proposed changes to the 

GIA are fair and equitable, because they 

will ‘‘ensure that all NASD members use 

the same simplified fee structure and 

will be assessed on the same uniform 

basis.’’ 14

With regard to the commenters’

concerns that there is no clear nexus 

between the NASD’s proposed fees and 

the NASD’s regulatory services 

provided, the NASD explained that 

most of the commenters objected to 

including commodities in the GIA.15 By 

reinstating the exclusion for 

commodities income, the NASD 

believes it has addressed the 

commenters’ concerns in this regard. 

The NASD stated that it believes that 

the requirement that fees be reasonable 

and equitably allocated does not require 

a fee structure ‘‘so specific and complex 

as to tie specific self-regulatory 

programs and related expenses to 

specific business lines within a firm[.]’’

The NASD reiterated the position 

outlined in the proposal—that total 

revenues of a broker-dealer member, 

combined with trading activity of those 

members and the number of registered 

persons, serves as an effective measure 

of what drives the NASD’s regulatory 

costs.16 Regarding the concern that other 

markets may institute fees similar to the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 821

17 Id.

18See Securities Exchange Act Release No. 46817 

(November 12, 2002), 67 FR 69785 (November 19, 

2002) (SR–NASD–2002–148).

19 In approving this proposed rule change, the 

Commission has considered the proposed rule’s 

impact on efficiency, competition, and capital 

formation. 15 U.S.C. 78c(f).

20 15 U.S.C. 78o–3(b)(5).

21Exchange rules must comply with section 

6(b)(4) of the Act. 15 U.S.C. 78f(b)(4).

22Certain commenters objected to the NASD’s 

method of calculating the GIA because it would 

include revenue from transactions for which there 

is no regulatory nexus between the transactions and 

the NASD. See footnote 9, supra. Although the 

NASD believes that the GIA structure as proposed 

constitutes ‘‘a reasonable fee that is equitably 

allocated, and consistent with the Act,’’ the NASD 

reinstated the exclusion for commodities. NASD 

Response Letter at 5. According to the NASD, some 

of its member firms conduct securities and 

commodities business in a single jointly registered 

entity, and other members conduct a substantially 

similar business as separate entities with separate 

registrations. Reinstating the exclusion for 

commodities income allows similarly situated 

entities to receive the same treatment. While the 

NASD believes that commodities income drives 

some of the NASD’s regulatory costs for jointly 

registered firms, it reinstated the exclusion for 

commodities income. Id.

NASD’s fees, the NASD restates its 

position that the fees it is proposing 

‘‘are directly related to the regulatory 

responsibilities of NASD, are member 

regulatory fees not market regulatory 

fees, and are revenue neutral to 

NASD.’’ 17

Finally, with regard to the concern 

that commenters are unable to comment 

meaningfully on the proposal because of 

the lack of specifics on the trading 

activity fee in SR–NASD–2002–98, the 

NASD states that it has since established 

and published the trading activity fee 

rates. Furthermore, the trading activity 

fee portion of the NASD’s proposed fee 

restructuring proposal is now subject to 

full notice and comment.18

III. Discussion and Commission 

Findings 

The Commission has reviewed 

carefully the proposed rule change, the 

comment letters, and the NASD’s 

response to the comments, and finds 

that the proposed rule change is 

consistent with the requirements of the 

Act and the rules and regulations 

thereunder applicable to a national 

securities association 19 and, in 

particular, the requirements of section 

15A(b)(5) of the Act.20 Section 15A(b)(5) 

requires, among other things, that the 

rules of a national securities association 

provide for the equitable allocation of 

reasonable dues, fees, and other charges 

among members and issuers and other 

persons using any facility or system 

which the association operates or 

controls. The Commission finds that the 

three-tiered flat rate for the GIA that the 

NASD proposes to apply to gross 

FOCUS revenue and the use of the 

Personnel Assessment, as described in 

the instant proposed rule change, is 

consistent with section 15A(b)(5) of the 

Act, in that the proposal is reasonably 

designed to simplify the NASD’s fee 

structure, and to fairly and equitably 

assess higher fees to those member firms 

that require a greater portion of NASD 

regulatory services.

The Commission recognizes the 

difficulties inherent in restructuring the 

NASD’s regulatory fees, and believes 

that the NASD has made a good faith 

effort to do so in a manner that is fair 

and reasonable. The Commission also 

notes that the NASD has indicated it 

will examine the fees periodically, and 

will adjust the fees accordingly in an 

effort to keep the fees at a level that is 

revenue neutral to the NASD. 

While some commenters believe there 

is no clear nexus between the NASD’s 

proposed fees and the regulatory 

services the NASD provides, the 

Commission believes that the NASD had 

adequately addressed this concern. The 

Commission believes that both the 

overall business activity of a firm and 

the level of transactions a firm handles 

are reflected in the cost of the NASD’s 

regulatory services. If the fee were based 

on either measure alone firms whose 

business is predominantly reflected in 

one or the other measure would 

subsidize the operations of other firms. 

Furthermore, the NASD, as a registered 

national securities association, has a 

wide-ranging responsibility for 

overseeing the just and equitable 

conduct of its members, as well as its 

members’ financial condition, no matter 

what activities its members choose to 

conduct through the broker-dealer. The 

Commission is satisfied that the NASD’s 

proposed GIA is reasonably tailored to 

apportion fees based on the regulatory 

services the NASD provides. 

Additionally, the Commission agrees 

that the NASD’s decision to reinstate the 

exclusion for commodities income in 

the GIA should substantially satisfy the 

commenters who expressed 

dissatisfaction with this aspect of the 

proposal. 

With regard to the commenters’

concern that approval of the NASD’s 

proposed fee restructuring may set a 

precedent whereby other markets may 

institute fees similar to the NASD’s fees, 

the Commission notes that any fee 

proposal filed with the Commission 

must meet the statutory standard 

established in section 15A(b))5) of the 

Act.21 In particular, the Commission 

will, as it has done in the instant 

proposed rule change, assess any such 

proposal to determine whether or not 

the proposed fees have a sufficient 

nexus to the regulatory responsibilities 

of the proposing entity, and are fees 

based on the regulation of members as 

opposed to the regulation of markets.

The Commission believes that the 

NASD has been responsive to the 

commenters’ concerns that more time 

and information is necessary to evaluate 

the NASD’s tandem proposed rule 

changes to restructure its regulatory 

fees. With the filing of SR–NASD–2002–

147 and SR–NASD–2002–148, the 

NASD has provided the public with 

further opportunity to evaluate its 

proposed regulatory fee restructuring. 

With regard to all other issues raised 

by the commenters, the Commission is 

satisfied that the NASD has adequately 

and accurately addressed the 

commenters’ concerns.

The Commission finds good cause for 

approving proposed Amendment No. 2 

before the 30th day after the date of 

publication of notice of filing thereof in 

the Federal Register. The NASD filed 

Amendment No. 2 in response to 

comments it received after the 

publication of the notice of filing of the 

proposed rule change, to address certain 

commenters’ concerns.22 Because 

Amendment No. 2 is responsive to these 

commenters’ concerns, the Commission 

finds good cause for accelerating 

approval of the proposed rule change, as 

amended.

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning Amendment No. 

2, including whether Amendment No. 2 

is consistent with the Act. Persons 

making written submissions should file 

six copies thereof with the Secretary, 

Securities and Exchange Commission, 

450 Fifth Street, NW., Washington, DC 

20549–0609. Copies of the submission, 

all subsequent amendments, all written 

statements with respect to Amendment 

No. 2 that are filed with the 

Commission, and all written 

communications relating to Amendment 

No. 2 between the Commission and any 

person, other than those that may be 

withheld from the public in accordance 

with the provisions of 5 U.S.C. 552, will 

be available for inspection and copying 

in the Commission’s Public Reference 

Room. Copies of such filing will also be 

available for inspection and copying at 

the principal office of the NASD. All 

submissions should refer to file number 

SR–NASD–2002–99 and should be 

submitted by January 28, 2003. 

822 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

23 15 U.S.C. 78s(b)(2).

24 17 CFR 200.30–3(a)(12).

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b–4.

3See letter from John D. Nachmann, Senior 

Attorney, Nasdaq, to Katherine A. England, 

Assistant Director, Division of Market Regulation 

(‘‘Division’’), Commission (‘‘Amendment No. 1’’). In 

Amendment No. 1, Nasdaq requests that the 

Commission finds good cause to approve the 

proposed rule change on an accelerated basis 

pursuant to Section 19(b)(2) of the Act. 15 U.S.C. 

78s(b)(2).

4See letter from John D. Nachmann, Senior 

Attorney, Nasdaq, to Katherine A. England, 

Assistant Director, Division, Commission, dated 

December 30, 2002 (‘‘Amendment No. 2’’). 

Amendment No. 2 makes technical changes to the 

proposed rule text.

V. Conclusion 

It is therefore ordered, pursuant to 

section 19(b)(2) of the Act, 23 that the 

proposed rule change (SR–NASD–2002–

99), as amended by Amendment No. 1, 

be, and it hereby is, approved, and that 

Amendment No. 2 to the proposed rule 

change be, and hereby is, approved on 

an accelerated basis.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.24

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–220 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–M

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47111; File No. SR–NASD–

2002–183] 

Self-Regulatory Organizations; Notice 

of Filing and Order Granting 

Accelerated Approval of a Proposed 

Rule Change and Amendment Nos. 1 

and 2 Thereto by the National 

Association of Securities Dealers, Inc. 

Amending Nasdaq’s Rules Pertaining 

to Certain Issuer Entry Fees 

December 31, 2002. 

Pursuant to section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on December 

26, 2002, the National Association of 

Securities Dealers, Inc. (‘‘NASD’’), 

through its subsidiary, The Nasdaq 

Stock Market, Inc. (‘‘Nasdaq’’), filed 

with the Securities and Exchange 

Commission (‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by Nasdaq. On 

December 30, 2002, Nasdaq filed 

Amendment No. 1 to the proposed rule 

change.3 On December 31, 2002 Nasdaq 

filed Amendment No. 2 to the proposed 

rule change.4 The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons and to approve 

the proposed rule change, as amended, 

on an accelerated basis.

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Nasdaq is proposing to amend its 

rules regarding non-refundable 

application fees, listing fees for rights, 

and SmallCap entry and annual listing 

fees. Below is the text of the proposed 

rule change. Proposed new language is 

italicized; proposed deletions are in 

brackets.

* * * * *

4510. The Nasdaq National Market 

(a) Entry Fee 

(1) [When a] A domestic issuer, or 

foreign issuer raising capital in 

conjunction with its Nasdaq listing, that

submits an application for inclusion of 

any class of its securities (not otherwise 

identified in this Rule 4500 series) in 

The Nasdaq National Market, [it] shall 

pay to The Nasdaq Stock Market, Inc. a 

fee calculated on total shares 

outstanding, [which includes a one-time 

company listing fee of $5,000 ($1,000 of 

which is a non-refundable processing 

fee),] according to the following 

schedule[:]. This fee will be assessed on 

the date of entry in The Nasdaq 

National Market, except for $5,000 

which represents a non-refundable, 

application fee, and which must be 

submitted with the issuer’s application.

Up to 30 million shares—$100,000. 

30+ to 50 million shares—$125,000. 

Over 50 million shares—$150,000. 

(2) [When a] A foreign issuer not 

raising capital in conjunction with its 

Nasdaq listing, including American 

Depositary Receipts (ADRs), that

submits an application for inclusion of 

any class of its securities (not otherwise 

identified in this Rule 4500 series) in 

The Nasdaq National Market, [it] shall 

pay to The Nasdaq Stock Market, Inc. a 

fee calculated on total shares 

outstanding, [which includes a one-time 

company listing fee of $5,000 ($1,000 of 

which is a non-refundable processing 

fee),] according to the following 

schedule[:]. This fee will be assessed on 

the date of entry in The Nasdaq 

National Market, except for $5,000, 

which represents a non-refundable, 

application fee, and which must be 

submitted with the issuer’s application.

Up to 3 million shares—$50,000. 

3+ to 5 million shares—$75,000. 

5+ to 30 million shares—$100,000. 

30+ to 50 million shares—$125,000. 

Over 50 million shares—$150,000. 

(3) No change 

(4) An issuer that submits an 

application for inclusion of any class of 

rights in The Nasdaq National Market, 

shall pay, at the time of its application, 

a non-refundable application fee of 

$1,000 to The Nasdaq Stock Market, Inc.

([4]5) The Board of Directors of The 

Nasdaq Stock Market, Inc. or its 

designee may, in its discretion, defer or 

waive all or any part of the entry fee 

prescribed herein. 

([5]6) If the application is withdrawn 

or is not approved, the entry fee (less 

the non-refundable application

[processing] fee) shall be refunded. 

(b)–(d) No change 

4520. The Nasdaq SmallCap Market 

(a) Entry Fee 

(1) [When a]An issuer that submits an 

application for inclusion of any class of 

its securities (not otherwise identified in 

this Rule 4500 series) [, other than 

convertible debentures,] in The Nasdaq 

SmallCap Market, [it] shall pay to The 

Nasdaq Stock Market, Inc. a fee 

calculated on total shares outstanding, 

[which includes a one-time company 

listing fee of $5,000 ($1,000 of which is 

a non-refundable processing fee),] 

according to the following schedule[:]. 

This fee will be assessed on the date of 

entry in The Nasdaq SmallCap Market, 

except for a non-refundable, application 

fee of $5,000, which must be submitted 

with the issuer’s application.

Up to [1 million shares—$9,500. 

1+ to] 5 million shares—$[19,000] 

25,000. 

5+ to 10 million shares—$[30,875] 

35,000. 

10+ to 15 million shares—$[40,375] 

45,000. 

Over 15 million shares—$[47,500] 

50,000. 

(2) [When a]An issuer that submits an 

application for inclusion of any class of 

convertible debentures in The Nasdaq 

SmallCap Market, [it] shall pay to The 

Nasdaq Stock Market, Inc. a [one-time, 

company] non-refundable application

[listing] fee of $5,000 [(which shall 

include a $1,000 non-refundable 

processing fee)] and a fee of $1,000 or 

$50 per million dollars face amount of 

debentures outstanding, whichever is 

higher.

(3) The Board of Directors of The 

Nasdaq Stock Market, Inc. or its 

designee may, in its discretion, defer or 

waive all or any part of the entry fee 

prescribed herein. 

(4) Total shares outstanding means 

the aggregate of all classes of equity 

securities to be included in The Nasdaq 

SmallCap Market as shown in the 

issuer’s most recent periodic report or in 

more recent information held by Nasdaq 

or, in the case of new issues, as shown 

in the offering circular, required to be 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 823

5See NASD Rules 4510 and 4520, respectively.

6 15 U.S.C. 78o–3.

7 15 U.S.C. 78o–3(b)(5).

8 15 U.S.C. 78o–3(b)(6).

filed with the issuer’s appropriate 

regulatory authority. 

(5) An issuer that submits an 

application for inclusion of any class of 

rights in The Nasdaq SmallCap Market, 

shall pay, at the time of its application, 

a non-refundable application fee to The 

Nasdaq Stock Market of $1,000. [If the 

application is withdrawn or is not 

approved, the entry fee (less the nonrefundable application [processing] fee) 

shall be refunded.] 

(b) No change 

(c) Annual Fee 

(1) The issuer of a class of securities 

that is a domestic or foreign issue, 

including American Depositary Receipts 

(ADRs), listed in The Nasdaq SmallCap 

Market shall pay to The Nasdaq Stock 

Market, Inc. an annual fee to be 

computed as follows: 

(A) $[8,000] 15,000 for the first issue 

if it has total shares outstanding of up 

to 10 million shares; or

(B) $16,000 for the first issue if it has 

total shares outstanding of 10 million or 

more shares; plus 

(C) $2,000 for each additional issue. 

(D) For companies with more than 

one issue, the first issue is the 

company’s common stock or common 

stock equivalent with the highest total 

shares outstanding. For companies with 

no common stock or common stock 

equivalent, the first issue is the issue 

with the highest total shares 

outstanding.

(2)–(4) No change

* * * * *

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

Nasdaq included statements concerning 

the purpose of, and basis for, the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item III below. Nasdaq has prepared 

summaries, set forth in Sections A, B, 

and C below, of the most significant 

aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The purpose of the proposed rule 

change is to amend Nasdaq rules 

regarding non-refundable application 

fees, listing fees for rights, and 

SmallCap entry and annual listing fees. 

Nasdaq proposes that these changes be 

effective as of January 1, 2003. Nasdaq 

also proposes that the proposed fees be 

applied to all issuers listed as of that 

date, and all new listings entering 

Nasdaq on or after that date. Pursuant to 

NASD Rule 4520 (‘‘The Nasdaq 

SmallCap Market’’), SmallCap entry fees 

would increase from a range of $9,500 

to $47,000, to a range of $25,000 to 

$50,000, depending on the total shares 

outstanding in the issue. Nasdaq 

SmallCap annual fees would increase 

from $8,000 for the first issue, to a range 

from $15,000 to $16,000, depending on 

the total shares outstanding in the issue. 

Nasdaq is undertaking this increase to 

cover costs associated with the 

operation of the SmallCap market. In 

particular, Nasdaq has continued to 

invest in market services and initiatives 

such as the launch of SuperMontageSM, 

the NASDAQ Market Intelligence 

DeskSM, and enhancements to 

NASDAQ.com. At the same time, 

Nasdaq’s costs to provide regulatory 

oversight, client coverage and other 

professional services have continued to 

increase. 

Nasdaq also proposes to: (1) Provide 

transparency to the entry fee for rights; 

(2) change the date of the assessment of 

entry fees from the date of application 

to the date of listing; and (3) increase 

the non-refundable portion of the listing 

fee from $1,000 to $5,000 for both the 

Nasdaq National Market and the Nasdaq 

SmallCap Market.5

With respect to the entry fee for 

rights, Nasdaq rules do not currently 

distinguish between rights and regular 

equities. As such, applications for the 

inclusion of any class of rights are 

subject to the same entry fees as those 

for regular equities. Nasdaq has 

traditionally waived all but $1,000 of 

the entry fees for rights because Nasdaq 

believes that it would be inequitable to 

charge the same entry fees for rights and 

regular equities, as rights are short-term 

in nature and usually expire in 30 to 60 

days. Therefore, Nasdaq is proposing to 

codify a separate non-refundable entry 

fee of $1,000 for the inclusion of any 

class of rights to provide transparency to 

this policy.

Nasdaq is also proposing to revise the 

assessment date for entry fees from the 

date that an issuer submits a listing 

application to the date that an issuer is 

listed. Currently, Nasdaq currently 

assesses entry fees based on the date 

that an issuer submits its application. 

Because an issuer is billed for entry fees 

at the time that it is listed, however, 

Nasdaq staff must review the fee 

schedule that was in effect at the time 

that the issuer submitted its listing 

application in order to determine the 

appropriate entry fees that are due. 

Nasdaq believes that revising the 

assessment date for entry fees to the 

date that an issuer is listed will make it 

much easier for Nasdaq staff, as well as 

issuers, to determine the proper fees for 

the listing of a class of securities; as the 

fees will be determined by the fee 

schedule in effect at the time of billing. 

Lastly, Nasdaq proposes to increase 

the non-refundable portion of the listing 

fee from $1,000 to $5,000. Currently, 

when an issuer submits an application 

for inclusion on Nasdaq, it must pay a 

one-time fee of $5,000, which includes 

a $1,000 non-refundable processing fee. 

Nasdaq is proposing to increase the nonrefundable processing fee from $1,000 to 

$5,000 in order to cover the costs 

associated with processing an 

application. Because the cost of 

processing a listing application is 

approximately $5,000, Nasdaq is unable 

to cover its costs in those situations 

where an issuer withdraws its 

application or is denied listing. In 

conjunction with this change, Nasdaq 

also proposes to change the term 

‘‘listing fee’’ to ‘‘application fee.’’

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of section 15A of the Act 6 in 

general, and with sections 15A(b)(5)7

and 15A(b)(6)8 of the Act in particular. 

Nasdaq believes that the proposed rule 

change is consistent with Section 

15A(b)(5) of the Act in that it provides 

for the equitable allocation of reasonable 

dues, fees, and other charges among 

issuers using the Nasdaq system. 

Nasdaq believes that the proposed rule 

change is consistent with section 

15A(b)(6) of the Act in that it is 

designed to prevent fraudulent and 

manipulative acts and practices as well 

as to protect investors and the public 

interest by providing greater 

transparency to Nasdaq’s rules for 

issuers, their counsel, and investors. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

Nasdaq does not believe that the 

proposed rule change will result in any 

burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. 

824 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

9 15 U.S.C. 78o–3.

10 15 U.S.C. 78o–3(b)(5).

11 15 U.S.C. 78o–3(b)(6).

12 15 U.S.C. 78s(b)(2).

13 17 CFR 200.30–3(a)(12).

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b–4.

3 15 U.S.C. 78s(b)(3)(A).

4 17 CFR 240.19b–4(f)(6).

5Securities Exchange Act Release No. 46416 

(August 23, 2002), 67 FR 55901 (August 30, 2002).

6Securities Exchange Act Release No. 46818 

(November 12, 2002), 67 FR 69782 (November 19, 

2002).

7 In addition, many NASD member firms have 

already made programming changes to pay in 

conformity with the TAF structure that was 

effective on October 1, 2002.

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received. 

III. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Persons making written submissions 

should file six copies thereof with the 

Secretary, Securities and Exchange 

Commission, 450 Fifth Street, NW., 

Washington, DC 20549–0609. Copies of 

the submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room. Copies of such filing will also be 

available for inspection and copying at 

the principal office of the NASD. All 

submissions should refer to File No. 

SR–NASD–2002–183 and should be 

submitted by January 28, 2003. 

IV. Commission’s Finding and Order 

Granting Accelerated Approval of a 

Proposed Rule Change 

After careful review, the Commission 

finds that the proposed rule change is 

consistent with the requirements of 

section 15A of the Act 9 and the rules 

and regulations thereunder applicable to 

a national securities association. 

Specifically, the Commission finds that 

the proposed rule change, as amended, 

is consistent with section 15A(b)(5) of 

the Act,10 in that the proposal provides 

for an equitable allocation of reasonable 

dues, fees, and other charges among 

issuers using Nasdaq’s facility and/or 

systems. As represented by Nasdaq, the 

Commission notes that the proposed fee 

increase in Nasdaq SmallCap entry and 

annual fees reflect the additional costs 

associated with operating Nasdaq 

SmallCap market, including various 

regulatory and client services provided 

to issuers. Namely, Nasdaq represented 

that it has continued to invest in market 

services and market quality 

improvements such as SuperMontage, 

the Nasdaq Market Intelligence Desk, 

and enhancements to NASDAQ.com. 

Furthermore, as represented by Nasdaq, 

the increase of a non-refundable 

application fee from $1,000 to $5,000 

covers the processing of an issuer 

application for entry, especially in those 

instances where an issuer has 

withdrawn its application or has been 

denied listing. 

The Commission also finds that the 

proposed rule change consistent with 

section 15A(b)(6) of the Act 11 because 

the proposed rules promote just and 

equitable principles of trade, and 

protect investors and the public interest. 

In particular, the Commission notes that 

Nasdaq should provide greater 

transparency to issuers by codifying its 

regular practice of charging a $1,000 fee 

for the inclusion of any class of rights. 

Finally, Nasdaq has represented that it 

would assess appropriate entry fees 

based on the fee schedule in effect at the 

time of listing, rather than the 

application date. 

Nasdaq seeks to implement that 

proposed fees on January 1, 2003. In 

order to facilitate the implementation of 

the new fee schedule and ease 

administration of the fees, Nasdaq has 

requested that the Commission find 

good cause to approve the proposed rule 

change, as amended, before the thirtieth 

day after the date of publication of 

notice in the Federal Register. The 

Commission finds good cause to 

approve the proposed rule change, as 

amended, prior to the thirtieth day after 

publication in the Federal Register. The 

Commission believes that granting 

accelerated approval to the amended 

proposal will allow Nasdaq to 

implement the new fees by January 1, 

2003 and will provide issuers with 

notice and an opportunity to budget for 

additional costs. 

V. Conclusion 

It is therefore ordered, pursuant to 

section 19(b)(2) of the Act,12 that the 

propsed rule change (SR–NASD–2002–

183) is approved on an accelerated 

basis.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.13

Jill M. Peterson, 

Assistant Secretary.

[FR Doc. 03–222 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47112; File No. SR–NASD–

2002–182] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by the 

National Association of Securities 

Dealers, Inc. Extending Existing Pilot 

Program for the Regulatory Fee and 

Trading Activity Fee 

December 31, 2002. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on December 

26, 2002, the National Association of 

Securities Dealers, Inc. (‘‘NASD’’ or 

‘‘Association’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the NASD. The Association 

filed the proposal pursuant to Section 

19(b)(3)(A) of the Act,3 and Rule 19b–

4(f)(6) thereunder,4 which renders the 

proposal effective upon filing with the 

Commission. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons.

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The NASD proposes to extend the 

pilot program for the Trading Activity 

Fee (‘‘TAF’’) through March 1, 2003. 

The TAF structure as originally 

proposed in SR–NASD–2002–98 5 (and 

modified in SR–NASD–2002–147 6) is 

set to expire on December 31, 2002. 

Upon expiration of SR–NASD–2002–98, 

the member regulatory pricing structure 

was to revert to Section 8 of Schedule 

A of the By-Laws as amended. However, 

the NASD has determined not to revert 

to the previous pricing structure, but 

rather to extend the TAF pilot program, 

to maintain the status quo and to allow 

the Commission more time to review 

issues presented by the TAF proposed 

rule change.7 The NASD proposes no 

substantive changes to the existing pilot 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 825

8Securities Exchange Act Release No. 46416 

(August 23, 2002), 67 FR 55901 (August 30, 

2002)(SR–NASD–2002–98). See also Securities 

Exchange Act Release No. 46417 (August 23, 2002), 

67 FR 55893 (August 30, 2002)(SR–NASD–2002–

99). The NASD also published two Notices to 

Members describing the proposed changes and 

addressing interpretive questions posed by NASD 

members. See Notice to Members 02–41 (July 2002), 

and Notice to Members 02–63 (September 2002).

9 15 U.S.C. 78s(b)(3)(A)(ii).

10 17 CFR 240.19b–4(f)(2).

11Member firms must pay the TAF (for the first 

quarter starting October 1, 2002) by no later than 

January 15, 2003.

12At the same time, the NASD filed a new 

proposed rule change (SR–NASD–2002–148), 

substantially similar to SR–NASD–2002–98 but 

filed under Section 19(b)(1) of the Act, to allow for 

additional notice and comment. The NASD sought 

Commission approval of SR–NASD–2002–148 with 

an implementation date of December 31, 2002. To 

date, this proposed rule filing is pending with the 

Commission.

13 15 U.S.C. 78o–3(b)(5).

14 15 U.S.C. 78s(b)(3)(A).

15 17 CFR 240.19b–4(f)(6).

16For purposes only of accelerating the operative 

date of this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. 15 

U.S.C. 78c(f).

17 17 CFR 200.30–3(a)(12).

program, other than to extend its 

operation through March 1, 2003.

The text of the proposed rule change 

is available at the NASD and at the 

Commission. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

NASD included statements concerning 

the purpose of and basis for the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item IV below. The Association has 

prepared summaries, set forth in 

Sections A, B, and C below, of the most 

significant aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

On July 24, 2002, the NASD filed SR–

NASD–2002–98, which proposed a new 

member regulatory pricing structure.8

The proposed rule change was filed for 

immediate effectiveness pursuant to 

Section 19(b)(3)(A)(ii) of the Act 9 and 

Rule 19b–4(f)(2)10 thereunder. SR–

NASD–2002–98 is currently in effect. 

Assessments under the new TAF were 

effective as of October 1, 2002.11 On 

October 18, 2002, the NASD established 

a sunset provision whereby the TAF 

would cease to exist after December 31, 

2002.12 Upon expiration of SR–NASD–

2002–98, the member regulatory pricing 

was to revert to Section 8 of Schedule 

A of the By-Laws as amended.

The NASD has determined not to 

revert to the previous pricing structure 

established in Section 8 of Schedule A 

of the NASD By-Laws, but rather to 

extend the TAF pilot program in order 

to maintain the status quo and to allow 

the Commission more time to review 

issues presented by the TAF proposed 

rule change. Accordingly, the NASD 

filed the instant proposed rule change to 

extend the TAF structure pilot program 

through March 1, 2003. The NASD 

proposes no other changes to the pilot, 

other than to extend its operation 

through March 1, 2003. 

2. Statutory Basis 

The NASD believes that the proposed 

rule change is consistent with the Act, 

including Section 15A(b)(5) of the Act,13

which requires, among other things, that 

the NASD’s rules provide for the 

equitable allocation of reasonable dues, 

fees, and other charges among members 

and issuers and other persons using any 

facility or system that the NASD 

operates or controls.

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The NASD does not believe that the 

proposed rule change will result in any 

burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act, as amended. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments on this proposed 

rule change were neither solicited nor 

received. Written comments have been 

solicited on SR–NASD–2002–98, SR–

NASD–2002–147 and SR–NASD–2002–

148. These comments are not addressed 

herein, but are, as appropriate, 

discussed in connection with the 

respective rule filings. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing proposed rule 

change does not: 

(i) Significantly affect the protection 

of investors or the public interest; 

(ii) Impose any significant burden on 

competition; and 

(iii) Become operative for 30 days 

from the date on which it was filed, or 

such shorter time as the Commission 

may designate, it has become effective 

pursuant to Section 19(b)(3)(A) of the 

Act 14 and Rule 19b–4(f)(6) 

thereunder.15 At any time within 60 

days of the filing of the proposed rule 

change, the Commission may summarily 

abrogate such rule change if it appears 

to the Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or otherwise in furtherance of the 

purposes of the Act.

The NASD has requested that the 

Commission waive the five-day prefiling notice requirement and the 30-day 

operative delay. The Commission 

believes waiving the five-day pre-filing 

notice requirement and the 30-day 

operative delay is consistent with the 

protection of investors and the public 

interest. In particular, acceleration of 

the operative date will allow the pilot to 

operate without interruption. For these 

reasons, the Commission designates the 

proposal to be effective and operative 

upon filing with the Commission.16

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposal is 

consistent with the Act. Persons making 

written submissions should file six 

copies thereof with the Secretary, 

Securities and Exchange Commission, 

450 Fifth Street, NW., Washington, DC 

20549–0609. Copies of the submission, 

all subsequent amendments, all written 

statements with respect to the proposed 

rule change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room. Copies of such filing will also be 

available for inspection and copying at 

the principal office of the Association. 

All submissions should refer to file 

number SR–NASD–2002–182 and 

should be submitted by January 28, 

2003.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.17

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–268 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

826 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b–4.

3See Letter from Darla Stuckey, Corporate 

Secretary, New York Stock Exchange, Inc., to James 

A. Brigagliano, Assistant Director, Division of 

Market Regulation (‘‘Division’’), Commission 

(December 4, 2002) (‘‘NYSE Amendment No. 1’’). 

NYSE Amendment No. 1 conformed aspects of the 

proposed NYSE rules to those of NASD (See SR–

NASD–2002–154), and proposed effective dates for 

the various rule provisions.

4See Letter from Philip Shaikun, Assistant 

General Counsel, NASD, to Katherine A. England, 

Assistant Director, Division of Market Regulation, 

Commission (December 18, 2002) (‘‘NASD 

Amendment No. 1’’). NASD Amendment No. 1 

inserted language in proposed Rule 1050 to clarify 

that only research analysts who are directly 

responsible for the preparation of research reports 

(as opposed to indirect supervisors or others who 

are not directly responsible) would be required to 

register with NASD and pass a qualification 

examination. NASD Amendment No. 1 also 

conformed NASD’s proposed research analyst 

compensation provisions to comparable provisions 

in the NYSE’s research analyst rule amendments. 

NASD Amendment No. 1 also amended the 

definition of ‘‘research report’’ to conform it to the 

requirements of the Sarbanes-Oxley Act of 2002. 

NASD Amendment No. 1 also revised certain 

language that was contained in the discussion of the 

proposed amendment concerning print media 

interviews and articles.

5See Securities Exchange Act Release No. 45908 

(May 10, 2002), 67 FR 34968 (May 16, 2002).

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47110; File No. SR–NYSE–

2002–49; SR–NASD–2002–154] 

Self-Regulatory Organizations: Notice 

of Filing of Proposed Rule Changes by 

the New York Stock Exchange, Inc. 

Relating to Exchange Rules 344 

(‘‘Supervisory Analysts’’), 345A 

(‘‘Continuing Education for Registered 

Persons’’), 351 (‘‘Reporting 

Requirements’’) and 472 

(‘‘Communications With the Public’’) 

and by the National Association of 

Securities Dealers, Inc. Relating to 

Research Analyst Conflicts of Interest 

December 31, 2002. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Exchange Act’’),1 and Rule 19b–4 

thereunder,2 notice is hereby given that 

on October 9, 2002, the New York Stock 

Exchange, Inc. (‘‘NYSE’’ or the 

‘‘Exchange’’), and on October 25, 2002, 

National Association of Securities 

Dealers (‘‘NASD’’), filed with the 

Securities and Exchange Commission 

(‘‘SEC’’ or ‘‘Commission’’) the proposed 

rule changes as described in Items I, II, 

and III below, which Items have been 

prepared by the respective selfregulatory organizations (‘‘SROs’’). On 

December 4, 2002, NYSE submitted 

Amendment No. 1 to its proposed rule 

change.3 On December 18, 2002, NASD 

submitted Amendment No. 1 to its 

proposed rule change.4

The Commission is publishing this 

notice to solicit comments on the 

proposed rule changes from interested 

persons. 

I. Self-Regulatory Organizations’

Statement of the Terms of Substance of 

the Proposed Rule Changes 

The SROs propose to amend their 

rules to address research analyst 

conflicts of interest. NYSE filed with the 

Commission proposed amendments to 

Rule 472 (‘‘Communications with the 

Public’’). The proposed amendments 

expand upon recently approved 

amendments to Rule 472 5 and will 

place further restrictions on associated 

persons’ (hereinafter referred to as 

research analysts) preparing research 

reports, compensation and trading 

activities, as well as additional 

disclosure requirements on research 

reports issued by members and member 

organizations.

Proposed amendments to Rule 351 

(‘‘Reporting Requirements’’), will 

require members and member 

organizations to document the basis and 

approval of a research analyst’s 

compensation as required by Rule 

472(h)(2) and include it in the annual 

written attestation that they are required 

to submit to the Exchange. 

Proposed amendments to Rule 344 

(‘‘Supervisory Analysts’’), will require a 

new registration category and 

qualification examination for research 

analysts. Proposed amendments to Rule 

345A (‘‘Continuing Education for 

Registered Persons’’), will include 

research analysts and supervisory 

analysts as covered persons subject to 

the Firm Element of the Continuing 

Education Program to address 

applicable rules, regulations, ethics and 

professional responsibility.

NASD filed with the Commission 

proposed amendments to NASD Rules 

1120 and 2711, and a proposed rule 

change to create a new NASD Rule 

1050, to expand upon recently approved 

rules that govern research analyst 

conflicts of interest. 

Below is the text of the proposed rule 

changes. Proposed new language is in 

italics; proposed deletions are in 

[brackets]. 

A. NYSE’s Proposed Rule Text 

Rule 472 Communications With the 

Public 

Approval of Communications and 

Research Reports 

(a)(1) Each advertisement, market 

letter, sales literature or other similar 

type of communication which is 

generally distributed or made available 

by a member or member organization to 

customers or the public must be 

approved in advance by a member, 

allied member, supervisory analyst, or 

qualified person designated under the 

provisions of Rule 342(b)(1). 

(2) Research reports must be 

[prepared or] approved, in advance, by 

a supervisory analyst acceptable to the 

Exchange under the provisions of Rule 

344. Where a supervisory analyst does 

not have technical expertise in a 

particular product area, the basic 

analysis contained in such report may 

be co-approved by a product specialist 

designated by the organization. In the 

event that the member organization has 

no principal or employee qualified with 

the Exchange to approve such material, 

it must be approved by a qualified 

supervisory analyst in another member 

organization by arrangement between 

the two member organizations. 

Investment Banking, Research 

Department and Subject Company 

Relationships and Communications 

(b)(1) Research Department personnel 

or any associated person(s) engaged in 

the preparation of research reports may 

not be subject to the supervision or 

control of the Investment Banking 

Department of the member or member 

organization. Research reports may not 

be subject to review or approval prior to 

distribution by the Investment Banking 

Department. 

(2) Investment Banking personnel 

may check research reports prior to 

distribution only to verify the accuracy 

of information and to identify or to 

review for any potential conflicts of 

interest that may exist, provided that: 

(i) Any such written communication 

concerning the accuracy of research 

reports between the Investment Banking 

and Research Departments must be 

made either through the Legal or 

Compliance Department or in a 

transmission copied to Legal or 

Compliance; and 

(ii) Any such oral communication 

concerning the accuracy of research 

reports between the Investment Banking 

and Research Departments must be 

documented and made either with Legal 

or Compliance personnel acting as 

intermediary or in a conversation 

conducted in the presence of Legal or 

Compliance personnel. 

(3) A member or member organization 

may not submit a research report to the 

subject company prior to distribution, 

except for the review of sections of a 

draft of the research report solely to 

verify facts. Members and member 

organizations may not, under any 

circumstances, provide the subject 

company sections of research reports 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 827

that include the research summary, the 

research rating or the price target.

(i) Prior to submitting any sections of 

the research report to the subject 

company, the Research Department 

must provide a complete draft of the 

research report to the Legal or 

Compliance Department. 

(ii) If after submission to the subject 

company, the Research Department 

intends to change the proposed rating or 

price target, the Research Department 

must provide written justification to, 

and receive prior written authorization 

from, the Legal or Compliance 

Department for any change. The Legal or 

Compliance Department must retain 

copies of any drafts and changes thereto 

of the research reports provided to the 

subject company. 

(iii) The member or member 

organization may not notify a subject 

company that a rating will be changed 

until after the close of trading in the 

principal market of the subject company 

one business day prior to the 

announcement of the change. 

(4) No associated person may issue a 

research report or make a public 

appearance concerning a subject 

company if the associated person 

engaged in any communication with the 

subject company in furtherance of 

obtaining investment banking business 

prior to the time the subject company 

entered into a letter of intent or other 

written agreement with the member or 

member organization designating the 

member or member organization as an 

underwriter of an initial public offering 

by the subject company. This provision 

shall not apply to any due diligence 

communication between the associated 

person and the subject company, the 

sole purpose of which was to analyze 

the financial condition and business 

operations of the subject company.

Written Procedures 

(c) Each member and member 

organization must establish written 

procedures reasonably designed to 

ensure that members, member 

organizations and their associated 

persons are in compliance with this 

Rule (see Rule 351(f) and Rule 472(h)(2)

for attestations to the Exchange 

regarding compliance). 

Retention of Communications 

(d) Communications with the public 

prepared or issued by a member or 

member organization must be retained 

in accordance with Rule 440 (‘‘Books 

and Records’’). The names of the 

persons who prepared and who 

reviewed and approved the material 

must be ascertainable from the retained 

records and the records retained must 

be readily available to the Exchange, 

upon request. 

Restrictions on Trading Securities by 

Associated Persons 

(e)(1) No associated person or member 

of the associated person’s household 

may purchase or receive an issuer’s 

securities prior to its initial public 

offering (e.g., so-called pre-IPO shares), 

if the issuer is principally engaged in 

the same types of business as companies 

(or in the same industry classification) 

which the associated person usually 

covers in research reports. 

(2) No associated person or member of 

the associated person’s household may 

trade in any recommended subject 

company’s securities or derivatives of 

such securities for a period of thirty (30) 

calendar days prior to and five (5) 

calendar days after the member’s or 

member organization’s issuance of 

research reports concerning such 

security or a change in rating or price 

target of a subject company’s securities. 

(3) No associated person or member of 

the associated person’s household may 

effect trades contrary to the member’s or 

member organization’s most current 

recommendations (i.e., sell securities 

while maintaining a ‘‘buy’’ or ‘‘hold’’

recommendation, buy securities while 

maintaining a ‘‘sell’’ recommendation, 

or effecting a ‘‘short sale’’ in a security 

while maintaining a ‘‘buy’’ or ‘‘hold’’

recommendation on such security). 

(4) The following are exceptions to 

the prohibitions contained in 

paragraphs (1), (2), and (3): 

(i) Transactions by associated persons 

and household members that have been 

pre-approved in writing by the Legal or 

Compliance Department that are made 

due to an unanticipated significant 

change in their personal financial 

circumstances; 

(ii) A member or member organization 

may permit the issuance of research 

reports or permit a change to the rating 

or price target on a subject company, 

regardless of whether an associated 

person and/or household members 

traded the subject company’s securities 

or derivatives of such securities, within 

the thirty (30) calendar day period 

described in paragraph (e)(2), when the 

issuance of such research reports, or 

change in such rating or price target is 

attributable to some significant news or 

events regarding the subject company, 

provided that the issuance of such 

research reports, or change in rating or 

price target on such subject company 

has been pre-approved in writing by the 

Legal or Compliance Department; 

(iii) Sale transactions by an associated 

person and/or household member who 

is new to the member or member 

organization within thirty (30) calendar 

days of such associated person’s 

employment with the member or 

member organization when such 

associated person and/or household 

member had previously purchased such 

security or derivatives of such security 

prior to the associated person’s 

employment with the member or 

member organization;

(iv) Sale transactions by an associated 

person and/or household member 

within thirty (30) calendar days from 

the date of the member’s or member 

organization’s issuance of research 

reports or changes to the rating or price 

target on a subject company when such 

associated person and/or household 

member had previously purchased the 

subject company’s securities or 

derivatives of such securities prior to 

initiation of coverage of the subject 

company by the associated person; 

(v) Transactions in accounts not 

controlled by the associated person and 

for investment funds in which an 

associated person or household member 

participates as a passive investor, 

provided the interest of the associated 

person or household member in the 

assets of the fund does not exceed 1% 

of the fund’s assets, and the fund does 

not invest more than 20% of its assets 

in securities of issuers principally 

engaged in the same types of business 

as companies (or in the same industry 

classification) which the associated 

person usually covers in research 

reports. If an investment fund 

distributes securities in kind to an 

associated person before the issuer’s 

initial public offering, the associated 

person must either divest those 

securities immediately or refrain from 

participating in the preparation of 

research reports concerning that issuer; 

(vi) Transactions in a registered 

diversified investment company as 

defined under Section 5(b)(1) of the 

Investment Company Act of 1940. 

Restrictions on Member’s or Member 

Organization’s Issuance of Research 

Reports and Participation in Public 

Appearances

(f)(1) A member or member 

organization may not issue research 

reports regarding an issuer or 

recommend an issuer’s securities in a 

public appearance, for which the 

member or member organization acted 

as manager or co-manager of an initial 

public offering within forty (40) 

calendar days following the effective 

date of the offering. 

(2) A member or member organization 

may not issue research reports regarding 

an issuer or recommend an issuer’s 

securities in a public appearance, for 

828 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

which the member or member 

organization acted as manager or comanager of a secondary offering within 

ten (10) calendar days following the 

effective date of the offering. This 

prohibition shall not apply to research 

reports issued under Securities Act Rule 

139 regarding issuers whose securities 

are actively traded, as defined in 

Securities Exchange Act Rule 101(c)(1) 

of Regulation M. 

(3) A member or member organization 

may permit exceptions to the 

prohibitions in paragraphs (f)(1) and (2) 

(consistent with other securities laws 

and rules) for research reports that are 

issued due to significant news or events, 

provided that such research reports are 

pre-approved in writing by the 

member’s or member’s organization’s

Legal or Compliance Department. 

(4) No member or member 

organization which has acted as a 

manager or co-manager of a securities 

offering may issue a research report or 

make a public appearance within fifteen 

(15) days prior to or after the expiration, 

waiver or termination of a lock-up 

agreement or any other agreement that 

the member or member organization has 

entered into with a subject company 

and its shareholders that restricts or 

prohibits the sale of the subject 

company’s or its shareholder’s securities 

after the completion of a securities 

offering. A member or member 

organization may permit exceptions to 

the prohibitions in paragraph (f)(4) 

(consistent with other securities laws 

and rules) for research reports that are 

issued as a result of the development of 

significant news or events, provided that 

such research reports are pre-approved 

in writing by the member’s or member 

organization’s Legal or Compliance 

Department.

(5) If a member or member 

organization withdraws its research 

coverage of a subject company, notice of 

this withdrawal must be made. Such 

notice must be made in the same 

manner as when research coverage was 

first initiated by the member or member 

organization and must include the 

member’s or member organization’s 

final recommendation or rating.

Prohibition of Offering Favorable 

Research for Business 

(g) No member or member 

organization may directly or indirectly 

offer a favorable research rating or 

specific price target, or offer to change 

a rating or price target, to a subject 

company as consideration or 

inducement for the receipt of business 

or for compensation. 

Restrictions on Compensation to 

Associated Persons 

(h)(1) No member or member 

organization may compensate an 

associated person(s) for specific 

investment banking services 

transactions. An associated person may 

not receive an incentive or bonus that is 

based on a specific investment banking 

services transaction. However, a 

member or member organization is not 

prohibited from compensating an 

associated person based upon such 

member’s or member organization’s

[person’s] overall performance, 

including [services provided to] the 

performance of the Investment Banking 

Department (see Rule 472(k)(2) for 

disclosure of such compensation). 

(2) An associated person’s 

compensation must be reviewed and 

approved at least annually by a 

committee which reports to the Board of 

Directors or where the member or 

member organization has no Board of 

Directors to a senior executive officer of 

the member or member organization. 

Such committee may not include 

representatives from the member’s or 

member organization’s Investment 

Banking Department. The committee 

must, among other things, consider the 

following factors, if applicable, when 

reviewing an associated person’s 

compensation:

i. The associated person’s individual 

performance, (e.g., productivity, and 

quality of research product);

ii. The correlation between the 

associated person’s recommendations 

and stock price performance;

iii. The overall ratings received from 

clients, sales force, and peers 

independent of the Investment Banking 

Department, and other independent 

rating services.

The committee may not consider as a 

factor in determining the associated 

person’s compensation, his or her 

contributions to the member’s or 

member organization’s investment 

banking business.

The committee must document the 

basis upon which each associated 

person’s compensation was established. 

The annual attestation required by Rule 

351(f) must certify that the committee 

reviewed and approved each associated 

person’s compensation and has 

documented the basis upon which such 

compensation was established.

General Standards for All 

Communications 

(Formerly positioned at Supplementary 

Material .30)

(i) No change 

Specific Standards for Communications 

(Formerly positioned at Supplementary 

Material .40)

(j) No change (except for deletion of 

.40(2)). 

Disclosure 

(k)(1)Disclosures Required in Research 

Reports and Public Appearances 

Disclosure of Member’s, Member 

Organization’s and Associated Person’s 

Ownership of Securities 

(i) A member or member organization 

must disclose in research reports and an 

associated person must disclose in 

public appearances: 

a. If, as of the last day of the month 

before the publication or appearance (or 

the end of the second most recent 

month if the publication or appearance 

is less than ten (10) calendar days after 

the end of the most recent month), the 

member or member organization or its 

affiliates beneficially own 1% or more 

of any class of common equity securities 

of the subject company. The member or 

member organization must make the 

required beneficial ownership 

computation no later than ten (10) 

calendar days after the end of the prior 

month. Computation of beneficial 

ownership of securities must be based 

upon the same standards used to 

compute ownership for purposes of the 

reporting requirements under Section 

13(d) of the Securities Exchange Act of 

1934, 

b. If the associated person or a 

household member has a financial 

interest in the securities of the subject 

company, and the nature of the 

financial interest, including, without 

limitation, whether it consists of any 

option, right, warrant, futures contract, 

long or short position, or

c. Any other actual, material conflict 

of interest of the member or member 

organization, which the associated 

person knows, or has reason to know, at 

the time the research report is issued or 

at the time the public appearance is 

made. 

Member, Member Organization and 

Affiliate Compensation 

(ii) A member or member organization 

must disclose in research reports if the 

member or member organization or its 

affiliates: a) Has managed or comanaged a public offering of equity 

securities for the subject company in the 

past twelve (12) months; b) has received 

compensation for investment banking 

services from the subject company in 

the past twelve (12) months; or c) 

expects to receive or intends to seek 

compensation for investment banking 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 829

services from the subject company in 

the next three (3) months. 

When an associated person 

recommends securities in a public 

appearance, the associated person must 

disclose if the subject company is an 

investment banking services client of 

the member, member organization, or 

one of its affiliates; when the associated 

person knows or has reason to know of 

this relationship. 

Disclosure of Associated Person’s 

Affiliations With Subject Company 

(iii) A member or member 

organization must disclose in research 

reports, and an associated person must 

disclose in public appearances, whether 

the associated person or member of the 

associated person’s household is an 

officer, director or advisory board 

member of the recommended issuer. 

(k)(2) Disclosures Specific to Research 

Reports 

The front page of a research report 

either must include the disclosures 

required under this Rule or must refer 

the reader to the page(s) on which each 

such disclosure is found. Disclosures, 

and references to disclosures, must be 

clear, comprehensive and prominent. 

A member or member organization 

must disclose in research reports if the 

associated person preparing such 

reports received compensation that is 

based upon (among other factors) the 

member’s or member organization’s 

overall investment banking revenues. 

A member or member organization 

must disclose in research reports that 

recommend securities: 

(i) If it is making a market in the 

subject company’s securities at the time 

the research report is issued. 

(i) The valuation methods used, and 

any price objectives must have a 

reasonable basis and include a 

discussion of risks. 

(iii) The meanings of all ratings used 

by the member or member organization 

in its ratings system. (For example, a 

member or member organization might 

disclose that a ‘‘strong buy’’ rating 

means that the rated security’s price is 

expected to appreciate at least 10% 

faster than other securities in its sector 

over the next 12-month period). 

Definitions of ratings terms also must be 

consistent with their plain meaning. 

Therefore, for example, a ‘‘hold’’ rating 

should not mean or imply that an 

investor should sell a security. 

(iv) The percentage of all securities 

that the member or member 

organization recommends an investor 

‘‘buy,’’ ‘‘hold,’’ or ‘‘sell.’’ Within each of 

the three categories, a member or 

member organization must also disclose 

the percentage of subject companies that 

are investment banking services clients 

of the member or member organization 

within the previous twelve (12) months. 

(See Rule 472.70 for further 

information.). 

(v) A chart that depicts the price of 

the subject company’s stock over time 

and indicates points at which a member 

or member organization assigned or 

changed a rating or price target. This 

provision would apply only to securities 

that have been assigned a rating for at 

least one year, and need not extend 

more than three years prior to the date 

of the research report. The information 

in the price chart must be current as of 

the end of the most recent calendar 

quarter (or the second most recent 

calendar quarter if the publication date 

is less than fifteen (15) calendar days 

after the most recent calendar quarter). 

When a member or member 

organization distributes a research 

report covering six (6) or more subject 

companies for purposes of the 

disclosures required in paragraph (k) of 

this Rule, such research report may 

direct the reader in a clear and 

prominent manner as to where they may 

obtain applicable current disclosures in 

written or electronic format. 

Other Communications Activities 

(l) Other communications activities 

are deemed to include, but are not 

limited to, conducting interviews with 

the media, writing books, conducting 

seminars or lecture courses, writing 

newspaper or magazine articles or 

making radio/TV appearances.

Members and member organizations 

must establish specific written 

supervisory procedures applicable to 

members, allied members and 

employees who engage in these types of 

communications activities. These 

procedures must include provisions that 

require prior approval of such activity 

by a person designated under the 

provisions of Rule 342(b)(1). These types 

of activities are subject to the general 

standards set forth in paragraph (i). In 

addition, any activity which includes 

discussion of specific securities and/or 

industries is subject to the specific 

standards in paragraph (j) and the 

disclosure requirements of paragraphs 

(k)(1) and (k)(2)(i).

.10 Definitions 

(1) Communication—The term 

‘‘Communication’’ is deemed to include, 

but is not limited to, advertisements, 

market letters, research reports, sales 

literature, electronic communications, 

communications in and with the press 

and wires and memoranda to branch 

offices or correspondent firms which are 

shown or distributed to customers or the 

public. 

(2) Research Report—‘‘Research 

report’’ is generally defined as a written 

or electronic communication which 

includes an analysis of equity securities 

of individual companies or industries, 

and provides information reasonably 

sufficient upon which to base an 

investment decision. [and includes a 

recommendation]. 

For purposes of approval by a 

supervisory analyst pursuant to Rule 

472(a)(2), research report includes, but 

is not limited to, reports which 

recommend equity securities, 

derivatives of such securities, including 

options, debt and other types of fixed 

income securities, single stock futures 

products, and other investment vehicles 

subject to market risk. 

(3) Advertisement—‘‘Advertisement’’

is defined to include, but is not limited 

to, any sales communications that is 

published, or designed for use in any 

print, electronic or other public media 

such as newspapers, periodicals, 

magazines, radio, television, telephone 

recording, web sites, motion pictures, 

audio or video device, 

telecommunications device, billboards 

or signs.

(4) Market letters—‘‘Market letters’’

are defined as, but are not limited to, 

any written comments on market 

conditions, individual securities, or 

other investment vehicles that are not 

defined as research reports. They also 

may include ‘‘follow-ups’’ to research 

reports and articles prepared by 

members or member organizations 

which appear in newspapers and 

periodicals. 

(5) Sales literature—‘‘Sales literature’’

is defined as, but is not limited to, 

written or electronic communications 

including, but not limited to, 

telemarketing scripts, performance 

reports or summaries, form letters, 

seminar texts, and press releases 

discussing or promoting the products, 

services and facilities offered by a 

member or member organization, the 

role of investment in an individual’s 

overall financial plan, or other material 

calling attention to any other 

communication. 

.20 For purposes of this Rule, 

‘‘investment banking services’’ includes, 

without limitation, acting as an 

underwriter in an offering for the issuer; 

acting as a financial adviser in a merger 

or acquisition; providing venture 

capital, equity lines of credit, PIPEs 

(private investment, public equity 

transaction), or similar investments; or 

serving as placement agent for the 

issuer. 

830 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

.30 For purposes of this Rule, the 

term ‘‘Investment Banking Department’’

means any department or division of the 

member or member organization, 

whether or not identified as such, that 

performs any investment banking 

services on behalf of the member or 

member organization. 

.40 For purposes of this Rule, the 

term ‘‘associated person’’ includes a 

member, allied member, or employee of 

a member or member organization 

responsible for, and any person who 

reports directly or indirectly to such 

associated person in connection with,

the preparation of [making of the 

recommendation to purchase, sell or 

hold an equity security in] research 

reports, or making recommendations or 

offering opinions in public appearances 

or establishing a rating or price target of 

a subject company’s equity securities. 

For purposes of this Rule, the term 

‘‘household member’’ means any 

individual whose principal residence is 

the same as the associated person’s 

principal residence. Paragraphs (e)(1), 

(2), (3); (4)(i), (ii), (iii), (iv) and (v); 

(k)(1)(i)b., (k)(1)(iii) apply to any 

account in which an associated person 

has a financial interest, or over which 

the associated person exercises 

discretion or control, other than an 

investment company registered under 

the Investment Company Act of 1940. 

This term ‘‘associated person’’ also 

includes such ‘‘other persons,’’ e.g., 

Director of Research, Supervisory 

Analyst, or member of a committee, who 

have direct influence and/or control 

with respect to (1) preparing research 

reports, or (2) establishing or changing 

a rating or price target of a subject 

company’s equity securities. Such other 

persons are subject to the provisions of 

paragraph (e)(1)—(4) of this Rule.

.50 For purposes of this Rule, the 

term ‘‘public appearance’’ includes, 

without limitation, participation in a 

seminar, forum (including an interactive 

electronic forum), radio, [or] television 

or print media interview, or other public 

appearance or public speaking activity, 

or the writing of a newspaper article or 

other type of public written medium in 

which an associated person makes a 

recommendation or offers an opinion 

concerning any equity securities and/or

industries.

.60 For purposes of this Rule, 

‘‘subject company’’ is the company 

whose equity securities are the subject 

of research reports. 

.70 For purposes of Rule 

472(k)(2)(iv), a member or member 

organization must determine, based on 

its own ratings system, into which of the 

three categories each of their securities 

ratings utilized falls. This information 

must be current as of the end of the most 

recent calendar quarter (or the second 

most recent calendar quarter if the 

publication date is less than fifteen (15) 

calendar days after the most recent 

calendar quarter). For example, a 

research report might disclose that the 

member or member organization has 

assigned a ‘‘buy’’ rating to 58% of the 

securities that it follows, a ‘‘hold’’ rating 

to 15%, and a ‘‘sell’’ rating to 27%. 

Rule 472(k)(2)(iv) requires members 

or member organizations to disclose the 

percentage of companies that are 

investment banking services clients for 

each of the three ratings categories 

within the previous twelve (12) months. 

For example, if 20 of the 25 companies 

to which a member or member 

organization has assigned a ‘‘buy’’ rating 

are investment banking clients of the 

member or member organization, the 

member or member organization would 

have to disclose that 80% of the 

companies that received a ‘‘buy’’ rating 

are its investment banking clients. Such 

disclosure must be made for the ‘‘buy,’’

‘‘hold’’ and ‘‘sell’’ ratings categories as 

appropriate. 

.80 For purposes of this Rule, the 

term ‘‘Legal or Compliance Department’’

also includes, but is not limited to, any 

department of the member or member 

organization which performs a similar 

function. 

.90 For purposes of Rule 472(a), a 

qualified person is one who has passed 

an examination acceptable to the 

Exchange. 

.100 For purposes of this Rule, the 

term ‘‘initial public offering’’ refers to 

the initial registered equity security 

offering by an issuer, regardless of 

whether such issuer is subject to the 

reporting requirements of Section 13 or 

15(d) of the Securities Exchange Act of 

1934, prior to the time of the filing of 

such issuer’s registration statement.

.110 For purposes of this Rule, a 

secondary offering shall include a 

registered follow-on offering by an 

issuer or a registered offering by persons 

other than the issuer involving the 

distribution of securities subject to 

Regulation M of the Securities Exchange 

Act of 1934. 

Reporting Requirements 

Rule 351 

(a)–(e) No change. 

(f) Each member and member 

organization that prepares, issues or 

distributes [communications to the 

public, (including but not limited to,] 

research reports and whose associated 

persons make public appearances [, 

media presentations and interviews]), is 

required to submit to the Exchange 

annually, a letter of attestation signed by 

a senior officer or partner that the 

member or member organization has 

established and implemented 

procedures reasonably designed to 

comply with the provisions of Rule 472. 

The attestation must also specifically 

certify that each associated person’s 

compensation was reviewed and 

approved in accordance with the 

requirements of Rule 472(h)(2) and that 

the basis for such approval has been 

documented.

* * * * *

.11 For purposes of Rule 351(f), the 

attestation must be submitted by April 

1 of each year. 

.12 The term ‘‘research report’’ is 

defined in Rule 472.10 and the term 

‘‘public appearance’’ is defined in Rule 

472.50.

Securities Analysts and Supervisory 

Analysts 

Rule 344. Securities analysts and 

supervisory analysts must be registered 

with, qualified by, and approved by the 

Exchange.

[Supervisory analysts required under 

Rule 472 shall be acceptable to, and 

approved by, the Exchange.] 

.10 For purposes of this Rule, the 

term ‘‘securities analyst’’ includes a 

member, allied member or employee 

who is directly responsible for the 

preparation of research reports. 

Securities analyst candidates must pass 

a qualification examination acceptable 

to the Exchange.

.11 [.10] For purposes of this rule, the 

term ‘‘supervisory analyst’’ includes a 

member, allied member or employee 

who is responsible for approving 

research reports under Rule 472(a)(2). In 

order to show evidence of acceptability 

to the Exchange as a supervisory 

analyst, a member, allied member or 

employee may do one of the following: 

(1) Present evidence of appropriate 

experience and pass an Exchange 

Supervisory Analysts Examination. 

(2) Present evidence of appropriate 

experience and successful completion of 

a specified level of the Chartered 

Financial Analysts Examination 

prescribed by the Exchange and pass 

only that portion of the Exchange 

Supervisory Analysts Examination 

dealing with Exchange rules on research 

standards and related matters.

[In addition, if not a member, allied 

member or registered representative, the 

candidate is subject to Exchange 

investigation of character and conduct 

and should submit personal information 

on Form U–4 for this purpose.] 

The Exchange publishes a Study 

Outline for the Securities Analyst 

Examination and the Supervisory 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 831

Analysts Examination. [Examinations 

are requested and given under the 

procedures described in Para. of 2345.15 

for registered representative 

examinations.] 

Continuing Education for Registered 

Persons 

Rule 345A.(a) Regulatory Element—

No change. 

(b) Firm Element 

(1) Persons Subject to the Firm 

Element—The requirements of Section 

(b) of this Rule shall apply to any 

registered person who has direct contact 

with customers in the conduct of the 

member’s or member organization’s 

securities sales, trading or investment 

banking activities, and to the immediate 

supervisors of such persons, and to 

registered persons who function as 

supervisory analysts, and securities 

analysts as defined in Rule 344

(collectively, ‘‘covered registered 

persons’’). 

(2) Standards—No Change. 

(3) Participation in the Firm 

Element—No Change. 

(4) Specific Training Requirements—

The Exchange may require a member or 

member organization, either 

individually or as part of a larger group, 

to provide specific training to its 

covered registered persons in such areas 

the Exchange deems appropriate. Such 

a requirement may stipulate the class of 

covered registered persons for which it 

is applicable, the time period in which 

the requirement must be satisfied and, 

where appropriate, the actual training 

content. 

.10 For purposes of this Rule, the 

term ‘‘registered person’’ means any 

member, allied member, registered 

representative or other person registered 

or required to be registered under 

Exchange rules, but does not include 

any such person whose activities are 

limited solely to the transaction of 

business on the Floor with members or 

registered broker-dealers. For purposes 

of the Regulatory Element required 

under Rule 345A(a), the term does not 

include persons registered as securities 

analysts or supervisory analysts 

pursuant to Rule 344.

.20–.40 No Change. 

.50 Pursuant to Rule 345A(b)(1), all 

persons registered as securities analysts 

and supervisory analysts pursuant to 

Rule 344 must participate in a Firm 

Element Continuing Education program 

that includes training in applicable 

rules and regulations, ethics and 

professional responsibility.

* * * * *

The Exchange is requesting the 

following implementation schedule for 

the proposed amendments (all time 

periods are from the date that the 

Commission approves the filing) in 

order to provide reasonable time periods 

for members and member organizations 

to develop and implement policies, 

procedures and systems to comply with 

the new requirements: 

• NYSE Rule 345A(b) and .50—

Implementation of a Firm Element 

Continuing Education Program for 

Research Analysts—90 calendar days.

• All other provisions—60 calendar 

days. 

In addition, the Exchange is 

proposing an effective date of 180 days 

after approval of the amendments to 

NYSE Rule 344.10 to provide sufficient 

time for the Exchange to develop and 

implement a qualification examination 

for research analysts. 

B. NASD’s Proposed Rule Text

Rule 1050. Registration of Research 

Analysts 

All persons associated with a member 

who are to function as research analysts 

shall be registered with NASD. Before 

their registrations can become effective, 

they shall pass a Qualification 

Examination for Research Analysts as 

specified by the Board of Governors. For 

the purposes of this Rule 1050, 

‘‘research analyst’’ shall mean an 

associated person who is directly 

responsible for the preparation of 

research reports.

* * * * *

Rule 1120. Continuing Education 

Requirements 

This Rule prescribes requirements 

regarding the continuing education of 

certain registered persons subsequent to 

their initial qualification and 

registration with the Association. The 

requirements shall consist of a 

Regulatory Element and a Firm Element 

as set forth below. 

(a) Regulatory Element 

(1)–(4) (No change.) 

(5) Definition of Registered Person 

For purposes of this Rule, the term 

‘‘registered person’’ means any person 

registered with [the Association] NASD

as a representative, principal, [or] 

assistant representative or research 

analyst pursuant to Rule 1020, 1030, 

1040, 1050 and 1110 Series. 

(6) (No change.) 

(b) Firm Element 

(1) Persons Subject to the Firm Element 

The requirements of this 

subparagraph shall apply to any person 

registered with the member who has 

direct contact with customers in the 

conduct of the member’s securities 

sales, trading and investment banking 

activities, and to the immediate 

supervisors of such persons, and to any 

person registered as a research analyst 

pursuant to Rule 1050 (collectively, 

‘‘covered registered persons’’). 

‘‘Customer’’ shall mean any natural 

person and any organization, other than 

another broker or dealer, executing 

securities transactions with or through 

or receiving investment banking 

services from a member. 

(2) Standards for the Firm Element 

(A) (No change.) 

(B) Minimum Standards for Training 

Programs—Programs used to implement 

a member’s training plan must be 

appropriate for the business of the 

member and, at a minimum must cover 

the following matters concerning 

securities products, services, and 

strategies offered by the member: 

(i) General investment features and 

associated risk factors; 

(ii) Suitability and sales practice 

considerations; [and] 

(iii) Applicable regulatory 

requirements[.]; and

(iv) With respect to registered research 

analysts, training in ethics, professional 

responsibility and the requirements of 

Rule 2711.

(3)–(4) (No change.)

* * * * *

Rule 2711. Research Analysts and 

Research Reports 

(a) Definitions 

For purposes of this rule, the 

following terms shall be defined as 

provided. 

(1)–(3) (No change.) 

(4) ‘‘Public appearance’’ means any 

participation in a seminar, forum 

(including an interactive electronic 

forum), radio, [or] television or print 

media interview, or other public 

speaking activity, or the writing of a 

print media article, in which a research 

analyst makes a recommendation or 

offers an opinion concerning an equity 

security. 

(5) ‘‘Research analyst’’ means the 

associated person who is principally 

responsible for, and any associated 

person who reports directly or 

indirectly to such a research analyst in 

connection with, preparation of the 

substance of a research report, whether 

or not any such person has the job title 

of ‘‘research analyst.’’ Solely for 

purposes of paragraph (g), the term 

‘‘research analyst’’ also includes such 

other persons as the director of 

research, supervisory analyst, or 

832 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

member of a committee who have direct 

influence or control with respect to (A) 

the preparation of research reports, or 

(B) establishing or changing a rating or 

price target of a subject company’s 

equity securities.

(6)–(7) (No change.) 

(8) ‘‘Research report’’ means a written 

or electronic communication which 

includes an analysis of equity securities 

or individual companies or industries, 

and which provides information 

reasonably sufficient upon which to 

base an investment decision [and 

includes a recommendation]. 

(9) (No change.) 

(b) (No change.) 

(c) Restrictions on Review of a Research 

Report by the Subject Company 

(1)–(3) (No change.) 

(4) No research analyst may issue a 

research report or make a public 

appearance concerning a subject 

company if the research analyst 

engaged in any communication with the 

subject company in furtherance of 

obtaining investment banking business 

prior to the time the subject company 

entered into a letter of intent or other 

written agreement with the member 

designating the member as an 

underwriter of an initial public offering 

by the subject company. This provision 

shall not apply to any due diligence 

communication between the research 

analyst and the subject company, the 

sole purpose of which was to analyze 

the financial condition and business 

operations of the subject company.

(d) [Prohibition of Certain Forms of] 

Restrictions on Research Analyst 

Compensation 

(1) No member may pay any bonus, 

salary or other form of compensation to 

a research analyst that is based upon a 

specific investment banking services 

transaction. 

(2) A research analyst’s compensation 

must be reviewed and approved at least 

annually by a committee that reports to 

the member’s board of directors, or 

when the member has no board of 

directors, to a senior executive officer of 

the member. This committee may not 

have representation from the member’s 

investment banking department. The 

committee must consider the following 

factors when reviewing a research 

analyst’s compensation, if applicable:

(A) the research analyst’s individual 

performance, including the analyst’s 

productivity and the quality of the 

analyst’s research;

(B) the correlation between the 

research analyst’s recommendations 

and the stock price performance; and

(C) the overall ratings received from 

clients, sales force, and peers 

independent of the member’s 

investment banking department, and 

other independent ratings services.

The committee may not consider as a 

factor in determining the research 

analyst’s compensation his or her 

contributions to the member’s 

investment banking business. The 

committee must document the basis 

upon which each research analyst’s 

compensation was established. The 

annual attestation required by Rule 

2711(i) must certify that the committee 

reviewed and approved each research 

analyst’s compensation and 

documented the basis upon which this 

compensation was established.

(e) (No change.)

(f) [Imposition of Quiet Periods] 

Restrictions on Publishing Research 

Reports and Public Appearances; 

Termination of Coverage

(1) No member may publish a 

research report regarding a subject 

company or recommend a subject 

company’s securities in a public 

appearance for which the member acted 

as manager or co-manager of: 

[(1)](A) an initial public offering, for 

40 calendar days following the date of 

the offering; or 

[(2)](B) a secondary offering, for 10 

calendar days following the date of the 

offering; provided that: 

[(A)](i) paragraphs (f)(1)(A) and 

(f)[(2)](1)(B) will not prevent a member 

from publishing a research report 

concerning the effects of significant 

news or a significant event on the 

subject company within such 40- and 

10-day periods, and provided further 

that the legal and compliance 

department authorizes publication of 

that research report before it is issued; 

and 

[(B)](ii) paragraph (f)[(2)](1)(B) will 

not prevent a member from publishing 

a research report pursuant to SEC Rule 

139 regarding a subject company with 

‘‘actively-traded securities,’’ as defined 

in Regulation M, 17 CFR 242.101(c)(1). 

(3) No member that has acted as a 

manager or co-manager of a securities 

offering may publish a research report 

or make a public appearance 

concerning a subject company 15 days 

prior to and after the expiration, waiver 

or termination of a lock-up agreement or 

any other agreement that the member 

has entered into with a subject company 

or its shareholders that restricts or 

prohibits the sale of securities held by 

the subject company or its shareholders 

after the completion of a securities 

offering. This paragraph will not prevent 

a member from publishing a research 

report concerning the effects of 

significant news or a significant event 

on the subject company within such 

period, provided that the legal and 

compliance department authorized 

publication of that research report 

before it is issued.

(4) If a member intends to discontinue 

its research coverage of a subject 

company, notice of this withdrawal 

must be made in the same manner as 

when research coverage was first 

initiated by the member and must 

include the member’s final 

recommendation or rating.

(g)–(i) (No change.) 

II. Self-Regulatory Organization’s 

Statements of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Changes 

In their filings with the Commission, 

the NYSE and NASD included 

statements concerning the purpose of 

and basis for the proposed rule changes. 

The text of these statements may be 

examined at the places specified in Item 

IV below. The NYSE and NASD have 

prepared summaries, set forth in 

Sections A, B, and C below. 

A. Self-Regulatory Organizations’

Statements of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Changes 

1. NYSE’s Purpose 

Background 

NYSE believes that allegations 

regarding improprieties in solicitation of 

investment banking business impugn 

the objectivity and integrity of research 

analysts and the reports they prepare 

and have continued to undermine 

investor confidence in the equity 

markets. According to the NYSE, in 

discharging their duties as SROs, the 

NYSE and NASD have been proactive in 

this regard and have passed sweeping 

changes, described below, to their rules 

governing research analysts, their 

member organizations and their 

communications with the public. The 

proposed amendments described below 

are a continuation of this process to 

restore integrity to the public equity 

markets. 

Prior Amendments 

On May 10, 2002, the SEC approved 

amendments to Exchange Rules 472 and 

351 which significantly changed the 

manner in which members and member 

organizations, their investment-banking 

departments and their research analysts 

manage and disclose conflicts of interest 

between their investment banking and 

research activities. The SEC also 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 833

6NYSE Information Memo No. 02–26 (June 26, 

2002), and NASD Notice to Members 02–39 (July 

2002).

7Telephone conversation between NYSE and 

Division Staff on December 30, 2002.

8Telephone conversation between NYSE and 

Division Staff on December 30, 2002.

simultaneously approved comparable 

changes to NASD rules (new NASD Rule 

2711—‘‘Research Analysts and Research 

Reports’’). NYSE believes that these rule 

amendments are the result of the SROs 

working to develop uniform industry 

rules. 

The rule amendments generally 

restrict the relationship between 

research and investment banking 

departments and the companies that are 

the subject of research reports; require 

disclosure of a financial interest in a 

subject company by an analyst or a 

member or member organization; 

require disclosure of existing and 

potential investment banking 

relationships with a subject company; 

impose quiet periods for the issuance of 

research reports following the 

completion of a company’s securities 

offering; restrict personal trading by 

research analysts in the stock of the 

companies covered by such analysts; 

and generally require extensive 

disclosure in research reports of certain 

important information to help 

customers monitor the correlation 

between an analyst’s rating and the 

stock’s price movements.

The rule amendments have been 

phased-in incrementally to provide 

members and member organizations 

time to develop and implement policies, 

procedures and systems and hire 

additional personnel to comply with the 

new requirements. The staggered 

implementation of the Rules began July 

9, 2002, with September 9, 2002 and 

November 6, 2002 as the effective dates 

for certain specified provisions. 

Implementation dates for certain of the 

SRO rules have also been delayed for 

small firms. As a result of numerous 

interpretive requests, on June 26, 2002, 

the Exchange and the NASD issued a 

Joint Memo providing interpretive 

guidance to certain rule provisions.6

According to NYSE, the Exchange, 

together with other regulatory 

organizations and SROs, is currently 

examining members’ and member 

organizations’ research practices to 

determine compliance with the new 

SRO Rules. 

According to the NYSE, some of the 

interpretive issues raised by the 

industry and the preliminary findings 

from the recent examinations have 

highlighted the need for certain 

additional changes to the existing SRO 

Rules. NYSE believes that further 

amendments to the SRO rules will also 

be required to comply with the mandate 

of the Sarbanes-Oxley Act of 2002 

(‘‘SOA’’), which requires the SEC, either 

directly or indirectly through SROs, to 

adopt not later than one year after the 

date of enactment of the Act (July 24, 

2002), ‘‘rules reasonably designed to 

address conflicts of interest that can 

arise when securities analysts 

recommend equity securities in research 

reports and public appearances, in order 

to improve the objectivity of research 

and provide investors with more useful 

and reliable information.’’

According to the NYSE, certain of the 

disclosure requirements and 

prohibitions that the SOA mandates 

have already been adopted in the new 

NYSE Rules. In some cases, the SOA 

appears to impose more stringent 

requirements. The NYSE is currently 

analyzing the differences between the 

SOA and NYSE Rules, to determine the 

extent of additional amendments to be 

made. 

Proposed Amendments Regarding 

Research Analysts 

The following proposed amendments 

to Exchange rules governing 

communications with the public expand 

upon the recently approved rule 

changes. The amendments generally 

provide for further restrictions on 

research analysts’ compensation and 

trading activities, and impose additional 

disclosure requirements for research 

reports and associated persons. 

Proposed amendments to Rule 472 

would further separate an analyst’s 

compensation from investment banking 

influence by requiring procedures for 

review and approval of research 

analysts’ compensation by a Committee 

that reports to the Board of Directors or 

a senior executive. Recently approved 

amendments prohibit an associated 

person from being compensated for 

specific investment services 

transactions. 

Such a Committee, at a minimum, 

would consider the following factors: 

the associated person’s individual 

performance (e.g., quality of research 

product), correlation between a research 

analyst’s recommendations and stock 

prices, and overall ratings from various 

internal or external parties exclusive of 

member or member organization 

investment banking personnel. 

Further, in determining an individual 

research analyst’s compensation, the 

Committee may not consider his or her 

contribution to the firm’s overall 

investment banking business. The basis 

for a research analyst’s compensation 

would have to be documented and an 

annual attestation to the Exchange 

would certify that the Committee 

reviewed and approved each associated 

person’s compensation and documented 

the basis for such approval (Rule 

472(h)(1) and (2)). 

Proposed Rule 472(b)(4) will prohibit 

a research analyst from issuing a 

research report or making a public 

appearance concerning a subject 

company if the research analyst engaged 

in any communication with the subject 

company in furtherance of obtaining 

investment banking business prior to 

the time the subject company entered 

into a letter of intent or other written 

agreement with the member or member 

organization designating the member or 

member rganization as an underwriter 

of an initial public offering by the 

subject company.7 Prohibiting research 

analysts from issuing research reports or 

making public appearances after 

participating in ‘‘pitch’’ meetings is 

intended to prevent the use or promise 

of research as an influence or a sales 

and marketing tool with prospective 

investment banking clients of the 

member or member organization, and 

would cause subject companies to 

choose a prospective investment 

banking firm based on the merits of its 

underwriting capabilities, rather than its 

research coverage.8

Due diligence communications 

between the research analyst and the 

subject company, the sole purpose of 

which is to analyze the financial 

condition and business operations of the 

subject company, is not subject to the 

prohibition. Recognizing the need for 

critical financial analysis of a subject 

company during the period an issuer is 

preparing to engage in a securities 

offering with the public, the rule allows 

research analysts to participate in due 

diligence communications. In doing so, 

the rule is intended to segregate 

legitimate research analyst duties/

functions, traditionally associated with 

their profession, from the sales/

marketing duties that they may have 

been called upon recently to do by their 

firms.

Proposed amendments to Rule 472 

would prohibit the issuance of research 

reports by the manager or co-manager of 

a securities offering for fifteen (15) days 

prior to and after the expiration time of 

any ‘‘lock-up agreement’’ (Rule 

472(f)(4)). This provision is intended to 

address situations where research 

analysts may issue positive research 

reports or reiterated ‘‘buy’’

recommendations shortly before or just 

after the expiration of a lock-up 

agreement. Through issuance or 

reiteration of ‘‘buy’’ recommendations, 

834 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

9The Exchange requested that Commission Staff 

delete the reference to a final recommendation or 

rating ‘‘if any’’ in order to conform to changes made 

by NYSE Amendment No. 1.

10Telephone conversation between NYSE and 

Division Staff on December 30, 2002.

11The Exchange requested that Commission Staff 

delete the reference to ‘‘research reports.’’

Telephone conversation between NYSE and 

Division Staff on December 30, 2002.

12 15 U.S.C. 78f(b)(5).

13Supra note 5,m See also Securities Exchange 

Act Release No. 46402 (June 6, 2002), 67 FR 40361 

(June 12, 2002)(correcting language contained in 

rule 2711(h)).

shareholders of the subject company 

which were precluded from selling 

shares in the immediate aftermarket for 

specified periods of time, may be able 

to sell their shares at higher prices. 

Imposition of this fifteen (15) day 

blackout period around the expirations 

of lockups is intended to mitigate and/

or eliminate the incentive for a research 

analyst to issue positive research 

reports, and should permit real market 

forces to determine the price at which 

such securities can be sold after the 

expiration of such agreements. 

Proposed amendments to Rule 472 

would require notification to customers 

when a member or member organization 

terminates research coverage of a subject 

company and require that the final 

report include a final recommendation 

or rating 9 (assuming the member or 

member organization had issued a prior 

rating or recommendation) 10 (Rule 

472(f)(5)). This provision is intended to 

address situations where research 

analysts have discontinued following 

subject companies without changing 

their ratings of such companies, even 

though ratings changes, may have in 

many instances, been warranted. Thus, 

investors held the securities of such 

companies, often while these companies 

were deteriorating financially, without 

the benefit of guidance from the firms 

from which they had purchased them. 

The recently approved amendments to 

Rule 472 also address this issue, in part, 

by requiring the disclosure of a price 

chart versus changes in ratings in order 

to help investors track the correlation 

between a research analyst’s rating/

recommendation and the stock’s price 

performance. NYSE believes that the 

proposed amendments would enhance 

this required disclosure by providing 

investors with notice of termination of 

coverage as well as any final rating the 

member or member organization has 

issued on the subject company.

As proposed, the definition of 

research analyst (associated person) 

would be amended to include research 

directors, supervisory analysts and 

others e.g., committee members, who 

have direct influence, or control the 

preparation of research reports and 

establishment or change in ratings or 

price targets and thereby subject them to 

the trading and ownership prohibitions 

of the Rule (Rule 472.40) as research 

analysts. 

As proposed, the current ten (10) and 

forty (40) day quiet periods for research 

analysts’ issuance of research reports by 

managers and co-managers of initial and 

secondary offerings would be extended 

to include public appearances (Rule 

472(f)(1) and (2)). Extending the quiet 

periods to public appearances would 

preclude members and member 

organizations from engaging in 

communications through public 

appearances that they are otherwise 

prohibited from making in written 

communications to the same standards. 

NYSE believes that subjecting all types 

of appearances and written 

communications should further remove 

any incentives for biased research 

recommendations in any potential type 

of medium. 

The definition of ‘‘public appearance’’

would be amended to include research 

analysts’’ making a recommendation in 

a newspaper article or similar public 

medium (Rule 472.50). Extending the 

definition of public appearance to 

recommendations in a newspaper article 

would require research analysts to make 

the same disclosures that they are 

required to make in other public 

appearances.11

Proposed amendments to Rule 344 

(‘‘Supervisory Analysts’’) would 

establish a new registration category and 

require a qualification examination for 

research analysts (Rule 344). In 

addition, Rule 345A (‘‘Continuing 

Education for Registered Persons’’) 

would be amended to include research 

analysts and supervisory analysts as 

covered persons subject to the Firm 

Element of the Continuing Education 

Program to address applicable rules and 

regulations, ethics, and professional 

responsibility (Rule 345A(b) and .50). 

NYSE believes that research analysts 

as securities professionals perform vital 

functions for their members or member 

organizations in the public equity 

markets. As such, they should be subject 

to the highest ethical and professional 

competency standards. Accordingly, 

NYSE believes that establishing a new 

registration category with a 

corresponding qualifying examination 

will raise such standards. Further, 

including research and supervisory 

analysts as covered persons in the Firm 

Element component of Continuing 

Education Programs would place an 

obligation on members and member 

organizations to ensure that they are 

receiving the requisite ethics and 

professional responsibility training that 

NYSE believes they will require to 

properly conduct their duties as 

research analysts. 

The Exchange is making certain 

clarifying amendments to Rule 472 that 

would make it more uniform with the 

NASD rule and would bring it into 

conformity with certain of the new 

requirements of the Act. 

Rule 472 is being amended to require 

that the nature of a research analyst’s 

financial interest in a subject company’s 

securities be disclosed in research 

reports and public appearances, 

including whether the interest consists 

of any option, right, warrant, futures 

contract, or long or short position, etc. 

This would make NASD and NYSE rule 

texts consistent with each other (Rule 

472(k)(1)(i)(b). 

Proposed amendments to Rule 472(l) 

with respect to specified 

communications activities, including, 

interviews with the media, writing 

books and newspaper/periodical articles 

etc., engaged in by members, allied 

members or employees, would clarify 

the approval and supervisory 

requirements for such activities. 

As proposed, the term ‘‘research 

report’’ as it is currently defined in the 

Rule 472 is being amended to conform 

to the Act’s definition by deleting the 

criterion of providing a 

recommendation from the criteria that 

determines what constitutes a research 

report (Rule 472.10(2)). NYSE believes 

conforming the definition to the one 

required by the SOA would help 

facilitate members’ and member 

organizations’ future compliance with 

the SOA in the least disruptive manner. 

2. NYSE’s Statutory Basis 

The NYSE believes that the proposed 

rule change is consistent with Section 

6(b)(5) of the Exchange Act 12 which 

requires, among other things, that the 

rules of the Exchange are designed to 

prevent fraudulent and manipulative 

acts and practices, to promote just and 

equitable principles of trade and in 

general to protect investors and the 

public interests.

3. NASD’s Purpose 

Background 

In May 2002, the SEC approved new 

NASD Rule 2711 and similar 

amendments to existing New York Stock 

Exchange (‘‘NYSE’’) rules that increased 

the regulation of research analysts and 

research reports.13 The new rules are 

intended to improve the objectivity of 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 835

14See Securities Exchange Act Release No. 46165 

(July 3, 2002), 67 FR 46555 (July 15, 2002).

15See Notice to Members 02–39 (July 2002).

research and provide investors with 

more useful and reliable information 

when making investment decisions. 

Most of the new rules’ provisions 

became effective on July 9, 2002, 

although some provisions took effect on 

September 9, 2002, and one provision 

took effect on November 6, 2002. 

Additionally, in July 2002, the SEC 

approved an NASD rule proposal to 

delay until November 6, 2002 the 

effectiveness of certain provisions for 

certain members with foreign affiliates, 

certain research analysts that are 

divesting the securities of all subject 

companies that they cover, and certain 

defined small firms.14

In June 2002, NASD and the NYSE 

issued a joint memorandum that 

provided members with the new rule 

language, as well as interpretive 

guidance on a number of Rule 2711’s 

provisions.15 NASD and the NYSE also 

have been examining members’ research 

practices to determine compliance with 

the new research analyst rules.

According to NASD, as a result of the 

examinations and further discussions 

with the SEC staff, NASD and NYSE 

agreed that additional rules governing 

members’ research activities are 

necessary to protect investors. This rule 

change proposal would effectuate those 

additional safeguards. Generally, the 

proposed amendments would further 

separate analyst compensation from 

investment banking influence, prohibit 

analysts from issuing ‘‘booster shot’’

research reports, prohibit analysts from 

participating in ‘‘bake-off’’ meetings 

with prospective investment banking 

clients, require members to publish a 

final research report when they 

terminate coverage of a subject 

company, impose registration, 

qualification and continuing education 

requirements on research analysts, and 

make certain other changes. 

NASD believes that these 

amendments do not implement all of 

the changes that may be required 

pursuant to the research analyst 

provisions of the SOA. NASD 

anticipates filing additional proposed 

amendments to Rule 2711 in the future 

to meet the requirements of SOA after 

further discussions with NYSE and SEC 

staff. 

A more detailed discussion of the 

proposed rule change follows. 

1. Analyst Compensation 

The proposed amendments would 

require members to further separate 

analyst compensation from investment 

banking influence by imposing new 

restrictions on the manner in which 

research analysts may be compensated. 

The rule proposal would require 

members to employ a compensation 

committee that reports to the member’s 

board of directors (or if the member 

does not have a board of directors, a 

senior executive officer of the member) 

responsible for reviewing and approving 

analyst compensation at least annually. 

The committee could not have 

representation from the member’s 

investment banking department. In 

determining an analyst’s compensation, 

the committee would have to consider, 

if applicable, the research analyst’s 

individual performance, including the 

analyst’s productivity and research 

quality, the correlation between the 

analyst’s recommendations and stock 

price performance, and overall ratings of 

clients, sales force, and peers 

independent of the member’s 

investment banking department. The 

committee could not consider the 

analyst’s contributions to the member’s 

investment banking business. 

The committee would be required to 

document the basis for establishing the 

analyst’s compensation. The member 

also would have to attest annually to 

NASD that the committee reviewed and 

approved each analyst’s compensation 

and documented the basis upon which 

the compensation was established. 

2. Restrictions on Publishing Research 

Reports and Public Appearances 

The proposed amendments would 

make several changes to current Rule 

2711(f), which imposes ‘‘quiet periods’’

on members during which members 

may not publish research reports 

following an initial or secondary public 

offering of securities. First, the proposed 

amendments would extend the quiet 

period prohibitions to public 

appearances by research analysts as well 

as to the issuance of research reports. 

Second, the proposed amendments 

would prohibit ‘‘booster shot’’ research 

reports or public appearances around 

the time of the expiration, waiver or 

termination of a ‘‘lock-up’’ agreement. 

Members often enter into lock-up 

agreements with subject companies or 

their shareholders that restrict or 

prohibit the sale of a subject company’s 

or its shareholder’s securities for a 

defined period after the completion of a 

securities offering. This provision 

would prohibit members from 

publishing a research report or making 

a public appearance concerning a 

subject company for 15 days prior to or 

after the expiration, waiver or 

termination of a lock-up agreement, thus 

helping prevent members from 

publishing favorable research that is 

intended to benefit the shareholders 

whose lock-up agreement is no longer in 

effect by driving up the price of the 

issuer’s shares. However, the rule 

proposal includes an exception that 

would allow members to publish 

research reports during this quiet period 

to comment on the effect of significant 

news or a significant event on the 

subject company, provided that the legal 

and compliance department authorizes 

the publication of the report before it is 

issued. A similar exception exists with 

respect to quiet periods in the current 

rule. 

Third, the proposed amendments 

would require a member that decides to 

terminate coverage of a subject company 

to publish a notice of this termination, 

and to publish its final rating or 

recommendation of the subject 

company’s securities (assuming the 

member had issued a prior rating or 

recommendation). This provision is 

intended to eliminate the practice of 

dropping coverage of a subject company 

rather than lowering a rating or 

recommendation. 

3. Bake-Offs 

The proposed amendments would 

prohibit a research analyst from issuing 

a research report or making a public 

appearance concerning a subject 

company if the research analyst 

communicated with the subject 

company in furtherance of obtaining 

investment banking business before the 

subject company had entered into a 

letter of intent or other written 

agreement designating the member as an 

underwriter of an initial public offering 

of the subject company. This provision 

would not apply to due diligence 

communications between an analyst 

and a subject company where the sole 

purpose is to analyze the financial 

condition and business operations of the 

subject company. The purpose of this 

provision is to prevent research analysts 

from attending ‘‘bake-off’’ meetings or 

otherwise communicating with a subject 

company where the intention is to pitch 

the member’s investment banking 

services. 

4. Registration, Qualification and 

Continuing Education of Research 

Analysts

The proposed amendments would 

create new NASD Rule 1050, which 

would require all persons associated 

with a member that function as research 

analysts to register with NASD. For 

purposes of Rule 1050, ‘‘research 

analyst’’ would be defined as any 

associated person who is directly 

responsible for the preparation of 

836 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

16 15 U.S.C. 78o–3(b)(6). 17 17 CFR 200.30–3(a)(12).

research reports. Before these persons’

registrations could become effective, 

they would be required to pass a 

qualification examination for research 

analysts specified by NASD. The 

proposed amendments also would 

amend Rule 1120 to require research 

analysts to participate in the regulatory 

element and firm element of a member’s 

continuing education program. The firm 

element program would have to include 

research analysts’ training and 

education in ethics, professional 

responsibility and the requirements of 

Rule 2711. 

5. Definitions 

The proposed amendments would 

revise the definition of ‘‘research 

analyst’’ to include supervisors of 

research analysts, including directors of 

research and members of supervisory 

committees. The proposed expanded 

definition would apply only with 

respect to the personal trading 

restrictions of Rule 2711(g). NASD 

believes the amendment is necessary 

because these supervisory personnel 

review and often greatly influence the 

content of and recommendation 

contained in research reports and 

therefore should be subject to the same 

trading restrictions, such as the 

prohibition on trading against the 

member’s recommendation. The other 

provisions of Rule 2711 that govern 

research analyst conduct and 

disclosures would not apply to 

supervisors of research analysts. 

Additionally, the definition of ‘‘public 

appearance’’ would be revised to 

include interviews with print media and 

the writing of a print media article by 

a research analyst. In NASD’s 

experience, the opinions and 

recommendations by research analysts 

made in the print media, specifically in 

opinion pieces, have created some of the 

same concerns as those made in radio 

and television appearances, which are 

covered by the current definition. NASD 

is modifying the guidance discussed in 

NASD’s Notice to Members 02–39 

concerning the making of the required 

disclosures in public appearances with 

media outlets. An analyst would not 

violate the rule if the analyst makes the 

required disclosures to the print, radio 

or television media in good faith, even 

if the media outlet does not print or 

broadcast the information. NASD thus 

recognizes the independent editorial 

discretion of the print, radio and 

television media. 

6. NASD’s Statutory Basis 

NASD believes that the proposed rule 

change is consistent with the provisions 

of Section 15A(b)(6) 16 of the Act, which 

require, among other things, that the 

NASD’s rules be designed to prevent 

fraudulent and manipulative acts and 

practices, to promote just and equitable 

principles of trade, and, in general, to 

protect investors and the public interest. 

The NASD believes that this proposed 

rule change would eliminate or expose 

conflicts of interest and thereby 

significantly curtail the potential for 

fraudulent and manipulative acts. The 

NASD further believes that the proposed 

rule change will provide investors with 

better and more reliable information 

with which to make investment 

decisions.

B. Self-Regulatory Organizations’

Statements on Burden on Competition 

NYSE and NASD do not believe that 

the proposed rule changes will result in 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Exchange Act. 

C. Self-Regulatory Organizations’

Statements on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

NYSE and NASD has neither solicited 

nor received written comments on the 

proposed rule change.

III. Date of Effectiveness of the 

Proposed Rule Changes and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding, or 

(ii) as to which the SROs consent, the 

Commission will: 

A. By order approve such proposed 

rule change, or 

B. Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

IV. Solicitation of Comments 

The Commission notes that the NYSE 

and NASD have worked together to 

develop these proposals. The 

Commission specifically requests 

comment on the substance of the 

proposals, and whether there are any 

differences between the NYSE and 

NASD proposals that present 

compliance or interpretive issues. The 

Commission also specifically seeks 

comment on the practicalities of making 

the required disclosures in print media 

and other public appearances. The 

Commission requests comment on 

whether the SROs should consider 

whether there are other effective means 

(including abbreviated disclosures) to 

alert investors of conflicts in the context 

of public media appearances that would 

take into account possible space or time 

limitations. 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposals, as 

amended, are consistent with the Act. 

Persons making written submissions 

should file six copies thereof with the 

Secretary, Securities and Exchange 

Commission, 450 Fifth Street, NW, 

Washington, DC 20549–0609. 

Comments also may be submitted 

electronically to the following e-mail 

address: rule-comments@sec.gov.

Electronically submitted comments will 

be posted on the Commission’s Web site 

(http://www.sec.gov). All submissions 

should refer to File Nos. SR–NASD–

2002–154 and SR–NYSE–2002–49 and 

should be submitted by March 10, 2003. 

Copies of the rule filings, all 

subsequent amendments, all written 

statements with respect to the proposed 

rule change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room. Copies of the rule filings and 

amendments will also be available for 

inspection and copying at the principal 

offices of the SROs and on the SROs’

respective Web sites (http://

www.nyse.com and http://

www.nasd.com).

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.17

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–223 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 837

1 15 U.S.C. 78s(b)(7).

2 17 CFR 240.19b–7.

3 7 U.S.C. 7a–2(c).

4 15 U.S.C. 78f(h)(3).

5 7 U.S.C. 2(a)(1)(D)(i).

6SEC, Division of Market Regulation, Staff Legal 

Bulletin No. 15: Listing Standards for Trading 

Security Futures Products (September 5, 2001) 

[available at http://.sec.gov].

7See Joint Order Granting the Modification of 

Listing Standards Requirements (Exchange-Traded 

Funds, Trust-Issued Receipts and shares of ClosedEnd Funds), Securities Exchange Act Release No. 

46090 (June 19, 2002), 67 FR 42760 (June 25, 2002) 

and Joint Order Granting the Modification of Listing 

Standards Requirements (American Depository 

Receipts), Securities Exchange Act Release No. 

44725 (August 20, 2001), 67 FR 42760 (June 25, 

2002).

8See Securities Exchange Act Release No. 46669 

(October 16, 2002); 67 FR 65156 (October 23, 2002) 

(File No. 10–133).

9See Securities Exchange Act Release No. 46669 

(October 16, 2002); 67 FR 65156 (October 23, 2002) 

(File No. 10–133).

10See Securities Exchange Act Release No. 46787 

(November 7, 2002); 67 FR 69059 (November 14, 

2002) (SR–OC–2002–01).

11 15 U.S.C 78f(h)(3).

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47114; File No. SR–OC–

2002–04] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by 

OneChicago, LLC Relating to Listing 

Standards for Security Futures 

Products 

December 31, 2002. 

Pursuant to Section 19(b)(7) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–7 under the 

Act,2 notice is hereby given that on 

November 7, 2002, OneChicago, LLC 

(‘‘OneChicago’’) filed with the Securities 

and Exchange Commission (‘‘SEC’’ or 

‘‘Commission’’) the proposed rule 

change described in Items I and II 

below, which Items have been prepared 

by OneChicago. On December 11, 2002, 

OneChicago filed Amendment No. 1 to 

the proposed rule change. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

changes from interested persons. 

OneChicago also filed the proposed rule 

change with the Commodity Futures 

Trading Commission (‘‘CFTC’’), together 

with written certifications under 

Section 5c(c) of the Commodity 

Exchange Act (‘‘CEA’’) 3 on November 6 

and 7, 2002.

I. Self-Regulatory Organization’s 

Description of the Proposed Rules 

OneChicago is proposing to adopt 

rules on listing standards for security 

futures contracts (‘‘Eligibility and 

Maintenance Criteria for Security 

Futures Products’’) to comply with the 

requirements under Section 6(h)(3) of 

the Act 4 and the criteria under Section 

2(a)(1)(D)(i) of the CEA.5 The 

OneChicago Listing Standards are, for 

the most part, substantially identical to 

the sample listing standards (the 

‘‘Sample Listing Standards’’) included 

in Staff Legal Bulletin No. 15 (‘‘SLB 

15’’),6 except that the OneChicago 

Listing Standards:

• Reflect the modifications to the 

statutory listing standards requirements 

adopted by the Commission and the 

CFTC with respect to shares of 

exchange-traded funds, trust-issued 

receipts, shares of registered closed-end 

management investment companies, 

and American Depositary Receipts 

(‘‘ADRs’’) 7 and

• Establish an approximately equal 

dollar-weighting methodology for 

physically settled futures based on 

narrow-based security indices (such 

indices are referred to hereafter as 

‘‘NBIs’’), which (i) Requires the number 

of each component security to be 

rounded up or down to the nearest 

multiple of 100 shares or receipts in the 

course of the initial index composition 

and any subsequent rebalancing, (ii) 

contemplates mandatory annual 

rebalancing of such indices under 

specified circumstances, complemented 

by OneChicago’s ability to rebalance 

indices on an interim basis if it so 

elects, and (iii) ensures that outstanding 

contracts will not be affected by any 

rebalancing. 

In connection with the adoption of 

the OneChicago Listing Standards, 

OneChicago is proposing the following 

rule changes, which are referenced in 

Item II.A.1.b below, from the version of 

the OneChicago Rulebook filed as part 

of OneChicago’s notice registration with 

the Commission on Form 1–N: 8

• An amendment to its Rule 213 (the 

‘‘Information Sharing Rule’’), to add the 

following text after the first sentence: 

‘‘The Chief Executive Officer, or his or 

her delegate, is authorized to provide 

information to any such organization, 

association, board of trade or regulator 

that is a party to an information sharing 

agreement with the Exchange, in 

accordance with the terms and subject 

to the conditions set forth in such 

agreement.’’; 

• An amendment to its Rule 603 (the 

‘‘Market Manipulation Rule’’), to (i) 

remove the reference to market 

demoralization from the heading and (ii) 

replace the reference to ‘‘upsetting the 

equilibrium of the market in any 

Contract’’ with the words ‘‘generating 

unnecessary volatility’’; 

• An amendment to its Rule 605 (the 

‘‘Sales Practice Rule’’), to provide that 

each Clearing Member, Exchange 

Member (including its Related Parties) 

and Access Person shall comply with 

any and all sales practice rules from 

time to time promulgated by the 

National Futures Association (‘‘NFA’’) 

(in the case of any Clearing Member, 

Exchange Member or Access Person that 

is registered with the NFA) or the 

National Association of Securities 

Dealers, Inc. (‘‘NASD’’) (in the case of 

any other Clearing Member, Exchange 

Member or Access Person) with respect 

to security futures. 

• An amendment to its Rule 610 (the 

‘‘Trading Ahead Rule’’) to remove the 

requirement that a customer’s consent 

under such rule be in writing and 

indicated on each relevant order; and

• An amendment to its Rule 611 (the 

‘‘Trading Against Rule’’), to remove the 

requirement that a customer’s consent 

under such rule be in writing and given 

or renewed within 12 months of the 

transaction at issue. 

OneChicago is also filing herewith 

proposed Rules 403, 415, 419, 501, 601, 

602, 604, 612 and 613, which remain 

unchanged from the Rulebook filed with 

the Commission as part of OneChicago’s 

notice registration on Form 1–N.9

OneChicago Rule 515, while also 

referenced in Item II.A.1.b below, is not 

filed in this proposed rule change 

because it was the subject of a separate 

filing by OneChicago on Form 19b–4, 

and was approved by the Commission 

on November 7, 2002.10

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

OneChicago has prepared statements 

concerning the purpose of, and statutory 

basis for, the proposed rules, burdens on 

competition, and comments received 

from members, participants, and others. 

The text of these statements may be 

examined at the places specified in Item 

IV below. These statements are set forth 

in Sections A, B, and C below. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Section 6(h)(3) of the Act 11 sets forth 

a number of requirements for listing 

standards applicable to security futures 

products. Among other things, that 

Section provides that such listing 

standards must (i) be no less restrictive 

than comparable listing standards for 

options traded on a national securities 

838 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

12 15 U.S.C. 78f(h)(3)(C).

13 15 U.S.C. 78f(h)(3)(H).

14See supra note 7.

15See 15 U.S.C. 78f(h)(3)(H).

16See Amex Rule 1000, in particular Commentary 

.03 thereto.

17See Amex Rule 1000A, in particular 

Commentary .02 thereto.

18See Amex Rule 1202, in particular Commentary 

.01 thereto.

19See supra note 7.

20 15 U.S.C. 78f(h)(3).

exchange 12 and (ii) require that trading 

in security futures products not be 

readily susceptible to manipulation of 

the price of such products or of the 

underlying securities or options on such 

securities.13

a. OneChicago Listing Standards 

According to OneChicago, 

Commission staff published SLB 15, 

including the Sample Listing Standards 

(which were derived from typical listing 

standards used by exchanges trading 

options based on securities or security 

indices), to provide guidance as to how 

an exchange can comply with the 

foregoing requirements, but noted that 

different listing standards could also be 

consistent with the Act. 

OneChicago believes that the Sample 

Listing Standards, as modified by the 

order relating to shares of exchangetraded funds, trust-issued receipts and 

shares of registered closed-end 

management investment companies,14

constitute a useful and appropriate 

model to be used in developing initial 

listing and maintenance standards for 

security futures products. The 

OneChicago Listing Standards therefore 

generally follow the Sample Listing 

Standards (as so modified), subject to 

the additional modifications relating to 

physically settled futures based on NBIs 

described under Item I. above. The 

additional modifications are (i) a 

function of OneChicago’s providing for 

physical settlement of futures contracts 

based on NBIs, and accordingly, are 

limited in application to such 

physically settled contracts, and (ii) 

designed to enhance the usefulness and 

effectiveness of futures on NBIs in 

connection with hedging, arbitrage and 

other investment strategies.

Unlike options on security indices 

currently listed on national securities 

exchanges, all NBI futures to be listed 

on OneChicago are expected to be 

physically settled. OneChicago believes 

that physical settlement will effectively 

reduce the basis risk related to trading 

in these products and lead to tighter 

bid-ask spreads, thereby limiting the 

potential for market manipulation. 

OneChicago believes that its decision in 

favor of physical settlement therefore 

furthers the statutory objective of 

avoiding price manipulation of security 

futures products and their underlying 

securities.15 Physical settlement, 

however, makes it impracticable to have 

NBIs consisting of component securities 

in increments that are smaller than 100 

shares or receipts, which corresponds to 

customary increments for transactions 

in the markets for those securities. For 

this reason, rounding is a necessary step 

in the initial index composition and any 

subsequent rebalancing.

If the composition of NBIs were 

subject to frequent or retroactive 

changes as a result of index 

rebalancings, OneChicago believes that 

NBI futures would lose their potential as 

particularly useful and effective tools in 

the implementation of hedging, 

arbitrage and other investment 

strategies. 

The Sample Listing Standards 

contemplate at least quarterly 

rebalancings of equal dollar-weighted 

indices. The OneChicago Listing 

Standards modify this requirement by 

providing that an approximately equal 

dollar-weighted NBI underlying a 

physically settled security futures 

product is to be rebalanced annually, 

but only if the aggregate value of the 

security position with the highest value 

is two or more times greater than the 

aggregate value of the security position 

with the lowest value in the index for 

a specified time period. OneChicago 

believes that this test adequately 

balances the potential adverse 

consequences of too frequent changes in 

the composition of any NBI with the 

objective that an NBI should be, and 

remain, representative of the industry 

segment to which it relates. OneChicago 

will have the ability to rebalance any 

NBI on an interim basis should this 

become necessary as a result of 

exceptional changes in the relative 

values of the component securities. As 

OneChicago plans to list only contracts 

expiring on the next two quarterly 

expiration dates (based on the quarterly 

cycle of March, June, September and 

December) and the nearest two serial 

monthly expiration dates that are not 

quarterly expiration dates, OneChicago 

will be able to phase in contracts based 

on a rebalanced NBI, and thereby 

replace contracts with open interest 

based on the previous NBI composition, 

within a short period of time. 

OneChicago believes it is critical, 

however, that investors with open 

positions in contracts based on a 

particular NBI be able to rely on the 

number of shares or receipts evidencing 

each component security remaining 

unchanged for purposes of those 

contracts. Accordingly, the OneChicago 

Listing Standards clarify that 

outstanding contracts will not be 

affected by any rebalancing. 

Unlike the Sample Listing Standards 

(and the listing standards for options on 

which they are based), exchange rules 

and other requirements applicable to a 

variety of financial instruments based 

on ‘‘narrowly-based’’ security indices or 

baskets contemplate modifications to a 

pure equal dollar-weighted composition 

methodology and/or do not require 

automatic periodic rebalancings. For 

example, OneChicago believes that the 

rules of the American Stock Exchange 

(‘‘Amex’’) for portfolio depositary 

receipts 16 and index fund shares 17

expressly permit a ‘‘modified equaldollar weighting methodology’’ and do 

not appear to provide for rebalancing. 

Similarly, no rebalancing is required for 

the component securities represented by 

any series of trust-issued receipts traded 

on Amex.18 Further, OneChicago notes 

that the offering documents for the 

‘‘Holding Company Depositary Receipts 

(HOLDRS)’’ developed by Merrill Lynch 

& Co., Inc., another exchange-listed 

instrument designed to enable investors 

to indirectly gain exposure to equity 

securities of multiple issuers through a 

single investment, specify that the 

underlying trust assets will not change 

during the (indefinite) term of the trust 

unless one of several narrowly defined 

‘‘reconstitution events’’ occurs. In this 

connection, OneChicago notes that 

single-security futures based on at least 

some of the aforementioned instruments 

are permissible under the relief granted 

by the Commission and the CFTC19

with respect to shares of exchangetraded funds, trust-issued receipts and 

shares of registered closed-end 

management investment companies.

The contents of the OneChicago 

Listing Standards, including the 

approximately equal dollar-weighting 

methodology described above, will be 

publicly available and fully disclosed. 

Finally, OneChicago believes that it is 

also worth noting that, despite the 

differences between the OneChicago 

Listing Standards and the Sample 

Listing Standards, hypothetical indices 

following one or the other methodology 

have been shown to be highly 

correlated. 

b. Section 6(h)(3) Requirements 

Section 6(h)(3) of the Act 20 contains 

detailed requirements for listing 

standards and conditions for trading 

applicable to security futures products. 

Set forth below is a summary of each 

such requirement or condition, followed 

by a brief explanation of how 

OneChicago will comply with it, 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 839

21 15 U.S.C. 78f(h)(3)(A).

22 15 U.S.C. 78l.

23 15 U.S.C. 78f(h)(3)(B).

24 15 U.S.C. 78f(h)(3)(C).

25 15 U.S.C. 78o–3(a).

26 15 U.S.C. 78f(h)(3)(D).

27 15 U.S.C. 78f(h)(3)(E). 28 15 U.S.C. 78f(h)(7). 29 15 U.S.C. 78f(h)(3)(F). 30 15 U.S.C. 78o–3(a). 31 15 U.S.C. 78f(h)(3)(G). 32 7 U.S.C. 4j. 33 15 U.S.C. 78k(a). 34See supra note 8.

35 17 CFR 155.2–155.4.

36 17 CFR 41.27.

37 7 U.S.C. 4j(a).

38 15 U.S.C. 78f(h)(3)(H).

39 17 CFR 240.6h–1.

whether by particular provisions in the 

OneChicago Listing Standards or 

otherwise.

Clause (A) of Section 6(h)(3) of the 

Act 21 requires that any security 

underlying a security future be 

registered pursuant to Section 12 of the 

Act.22 This requirement is addressed by 

sections I.A.(ii), II.A.(i), III.A.(ii)(b) and 

IV.A.(ii)(a) of the OneChicago Listing 

Standards.

Clause (B) of Section 6(h)(3) of the 

Act 23 requires that a market on which 

a physically settled security futures 

product is traded have arrangements in 

place with a registered clearing agency 

for the payment and delivery of the 

securities underlying the security 

futures product. All security futures 

products initially proposed to be traded 

on OneChicago will be physically 

settled. OneChicago has entered into 

arrangements with both The Options 

Clearing Corporation (‘‘OCC’’) and the 

clearinghouse of the Chicago Mercantile 

Exchange Inc. (‘‘CME’’), both of which 

are registered clearing agencies, relating 

to the clearing of security futures 

products. By virtue of the CME 

clearinghouse being an associated 

clearinghouse of OCC, and OCC having 

in place arrangements with the National 

Securities Clearing Corporation for the 

delivery of securities underlying 

physically settled security futures 

products, OneChicago believes that the 

payment and delivery of the securities 

underlying OneChicago’s security 

futures products in accordance with the 

statutory requirements should be 

ensured.

Clause (C) of Section 6(h)(3) of the 

Act 24 provides that listing standards for 

security futures products must be no 

less restrictive than comparable listing 

standards for options traded on a 

national securities exchange or national 

securities association registered 

pursuant to Section 15A(a) of the Act.25

For the reasons discussed under Item 

II.A.1. above, notwithstanding specified 

differences between the Sample Listing 

Standards and the OneChicago Listing 

Standards, OneChicago believes that the 

latter are no less restrictive than 

comparable listing standards for 

exchange-traded options.

Clause (D) of Section 6(h)(3) of the 

Act 26 requires that each security future 

be based on common stock or such other 

equity securities as the Commission and 

the CFTC jointly determine appropriate. 

This requirement is addressed by 

sections I.A(i), III.A(ii)(c) and IV.A(ii)(b) 

of the OneChicago Listing Standards.

Clause (E) of Section 6(h)(3) of the 

Act 27 requires that each security futures 

product be cleared by a clearing agency 

that has in place provisions for linked 

and coordinated clearing with other 

clearing agencies that clear security 

futures products, which permits the 

security futures product to be purchased 

on one market and offset on another 

market that trades such product. 

OneChicago notes that pursuant to 

Section 6(h)(7) of the Act,28 the 

foregoing requirement is deferred until 

the ‘‘compliance date’’ (as defined 

therein). OneChicago expects that both 

OCC and the CME clearinghouse will 

have in place procedures complying 

with the requirements of clause (E) after 

such ‘‘compliance date.’’

Clause (F) of Section 6(h)(3) of the 

Act 29 requires that only a broker or 

dealer subject to suitability rules 

comparable to those of a national 

securities association registered 

pursuant to Section 15A(a) of the Act 30

effect transactions in a security futures 

product. This requirement is addressed 

by the Sales Practice Rule. As amended, 

the Sales Practice Rule requires all 

security futures intermediaries entering 

into transactions on OneChicago to 

comply with the applicable sales 

practice rules from time to time 

promulgated by the NFA (in the case of 

any Clearing Member, Exchange 

Member or Access Person that is 

registered with the NFA) or the NASD 

(in the case of any other Clearing 

Member, Exchange Member or Access 

Person), both of which are national 

securities associations.

Clause (G) of Section 6(h)(3) of the 

Act 31 requires that each security futures 

product be subject to the prohibition 

against dual trading in Section 4j of the 

CEA 32 and the rules and regulations 

thereunder or the provisions of Section 

11(a) of the Act 33 and the rules and 

regulations thereunder. Security futures 

intermediaries trading on OneChicago 

will be subject to the aforementioned 

statutory and regulatory prohibitions 

against dual trading by virtue of 

OneChicago Rule 604 previously 

included in Exhibit A–5 to 

OneChicago’s Form 1–N, filed with the 

Commission on August 20, 2002,34

which requires such intermediaries to 

comply with all applicable law. 

OneChicago Rules 610 through 613 

contain customary provisions relating to 

the priority of customers’ orders, trading 

against customers’ orders, withholding 

orders and disclosing orders, consistent 

with Regulations §§ 155.2 through 155.4 

under the CEA.35 The amendments 

reflected in Rules 610 and 611 as filed 

herewith reflect the fact that the 

customer consents referred to therein 

are not generally required to be in 

writing or renewed. OneChicago notes, 

however, that the prohibition of dual 

trading in security futures products as 

set forth in Regulation § 41.2736 adopted 

pursuant to Section 4j(a) of the CEA 37

by its terms only applies to a contract 

market operating an electronic trading 

system if such market provides 

participants with a time or place 

advantage or the ability to override a 

predetermined algorithm. Since those 

conditions do not exist on OneChicago, 

OneChicago has no specific rule 

prohibiting dual trading.

Clause (H) of Section 6(h)(3) of the 

Act 38 provides that trading in a security 

futures product must not be readily 

susceptible to manipulation of the price 

of such security futures product, nor to 

causing or being used in the 

manipulation of the price of any 

underlying security, option on such 

security, or option on a group or index 

including such securities. As discussed 

in Item II.A.1. above, the eligibility and 

maintenance criteria for security futures 

products contained in the OneChicago 

Listing Standards have been designed to 

ensure that the products that will be 

listed on OneChicago and the 

underlying securities will not be readily 

susceptible to price manipulation. In 

addition, Rule 603 in the OneChicago 

Rulebook, as amended by this filing, 

prohibits market manipulation 

(including generating unnecessary 

volatility or creating a condition where 

prices do not or will not reflect fair 

market values). The amendments 

reflected in Rule 603 as filed herewith 

were designed to avoid the use of terms 

or concepts that are not germane to 

futures markets. OneChicago Rules 

415(b) and 419 implement the 

requirements contained in Rule 6h-1, 

under the Act 39 relating to settlement 

and regulatory halts with respect to 

security futures products.

840 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

40 15 U.S.C. 78f(h)(3)(I).

41 15 U.S.C. 78f(h)(3)(J).

42 15 U.S.C. 78f(h)(3)(K).

43 15 U.S.C. 78f(h)(3)(L).

44 15 U.S.C. 78g(c)(2)(B).

45The Commission notes that OneChicago’s Rule 

515 regarding customer margin was approved on 

November 7, 2002. Securities Exchange Act Release 

No. 46787 (November 7, 2002); 67 FR 69059 

(November 14, 2002) (SR–OC–2002–01). See supra

note 9.

46 15 U.S.C. 78f(h)(3).

47 15 U.S.C. 78s(b)(7).

48 15 U.S.C. 78f(b)(5).

Clause (I) of Section 6(h)(3) of the 

Act 40 requires that procedures be in 

place for coordinated surveillance 

among the market on which a security 

futures product is traded, any market on 

which any security underlying the 

security futures product is traded, and 

other markets on which any related 

security is traded to detect manipulation 

and insider trading. The relevant 

provisions are OneChicago Rules 601, 

602 and 603, which prohibit fraudulent 

acts, fictitious transactions and market 

manipulation, respectively. OneChicago 

notes that it is an affiliate member of the 

Intermarket Surveillance Group (‘‘ISG’’) 

and has executed an affiliate agreement, 

an agreement to share market 

surveillance and regulatory information 

and an addendum to the foregoing 

agreements with the other ISG members. 

The Information Sharing Rule permits 

OneChicago to enter into agreements for 

the exchange of information and other 

forms of mutual assistance with 

domestic or foreign self-regulatory 

organizations, associations, boards of 

trade and their respective regulators. To 

the extent permitted by any such 

agreement, OneChicago’s Chief 

Executive Officer, or his or her designee, 

will be authorized to provide 

information to any such organization, 

association, board of trade or regulator 

that is a party to an information sharing 

agreement. Additional provisions 

related to coordinated surveillance are 

contained in sections I.A.(ix)(a), 

III.A(ii)(g) and IV.A(ii)(b) of the 

OneChicago Listing Standards.

Clause (J) of Section 6(h)(3) of the 

Act 41 requires that a market on which 

a security futures product is traded have 

in place audit trails necessary or 

appropriate to facilitate the coordinated 

surveillance referred to in the preceding 

paragraph. The audit trail capability 

provided by CBOEdirect, the trade 

matching engine utilized by 

OneChicago, will create and maintain 

an electronic transaction history 

database that contains information with 

respect to all orders, whether executed 

or not, and resulting transactions on 

OneChicago. This applies to orders 

entered through CBOEdirect terminals 

as well as to orders routed to 

CBOEdirect through CME’s Globex

system. The information recorded with 

respect to each order includes: time 

received (by CBOEdirect or Globex), 

terms of the order, order type, 

instrument and contract month, price, 

quantity, account type, account 

designation, user code and clearing 

firm.

OneChicago’s electronic audit trail 

will consist of data recorded by 

CBOEdirect and Globex, and 

OneChicago will have full access to all 

such data. Information logged by 

CBOEdirect, including in respect of 

orders received through CBOEdirect

terminals, will be archived and 

provided to OneChicago each day. 

Orders received through Globex will 

be archived and maintained at CME. 

Together these data sets will enable 

OneChicago to trace each order back to 

the clearing firm by or through which it 

was submitted. If any question or issue 

arises as to the source of an order prior 

to submission by or through a clearing 

firm, OneChicago will request that the 

clearing firm provide an electronic or 

other record of the order. 

For orders that cannot be immediately 

entered into either Chicago Board 

Options Exchange, Inc (‘‘CBOE’’) or 

CME systems, and therefore will not be 

recorded electronically by CBOEdirect

and Globex at the time they are 

placed, OneChicago Rule 403(b) 

requires that the Clearing Member or, if 

applicable, the Exchange Member or the 

Access Person receiving such order 

must prepare an order form in a nonalterable written medium, which must 

be time-stamped and include the 

account designation, date and other 

required information (i.e., order terms, 

order type, instrument and contract 

month, price and quantity). Each such 

form must be retained for at least five 

years from the time it is prepared. In 

addition, OneChicago Rule 501 

establishes a general recordkeeping 

requirement pursuant to which each 

Clearing Member, Exchange Member 

and Access Person must keep all books 

and records as required to be kept by it 

pursuant to the CEA, CFTC regulations, 

the Act, regulations under the Act and 

the Rules of OneChicago. OneChicago 

Rule 501 also requires that such books 

and records be made available to 

OneChicago upon request. Current 

CFTC regulations require books and 

records to be maintained for a period of 

five years. 

Block trades will be entered in 

CBOEdirect by OneChicago’s operations 

management after they are verbally 

reported by designated individuals at 

the Clearing Member for the selling 

party. At the time of each such verbal 

report, a trade identification number 

will be assigned and provided to the 

caller. Both the buyer and the seller in 

each trade will then follow up the 

verbal report by submitting a block trade 

reporting form via facsimile or email to 

OneChicago. Generally, the same 

procedures apply to exchange of future 

for physical (‘‘EFP’’) transactions, 

except that no verbal report is required 

for such transactions. Since block trades 

and EFP transactions involve orders that 

cannot be immediately entered into 

either CBOE’s or CME’s systems, the 

Clearing Members or, if applicable, 

Exchange Members or Access Persons 

involved must comply with the 

procedures specified in the preceding 

paragraph. 

Clause (K) of Section 6(h)(3) of the 

Act 42 requires that a market on which 

a security futures product is traded have 

in place procedures to coordinate 

trading halts between such market and 

any market on which any security 

underlying the security futures product 

is traded and other markets on which 

any related security is traded. 

OneChicago Rule 419 provides for 

trading in a security future to be halted 

at all times that a regulatory halt has 

been instituted for the relevant 

underlying security or securities.

Clause (L) of Section 6(h)(3) of the 

Act 43 requires that the margin 

requirements for a security futures 

product comply with the regulations 

prescribed pursuant to Section 7(c)(2)(B) 

of the Act.44 OneChicago believes that 

its proposed Rule 515 regarding 

customer margin is consistent with the 

requirements of the Act. 45

For the reasons described above, 

OneChicago submits that the 

OneChicago Listing Standards and the 

proposed changes to the Information 

Sharing Rule, the Market Manipulation 

Rule, the Sales Practice Rule, the 

Trading Ahead Rule, the Trading 

Against Rule and the other proposed 

OneChicago rules filed herewith, satisfy 

the requirements set forth in Section 

6(h)(3) of the Act.46

2. Statutory Basis 

One Chicago has filed these proposed 

rules pursuant to Section 19(b)(7) of the 

Act.47 OneChicago believes that the 

OneChicago Listing Standards are 

authorized by, and consistent with, 

Section 6(b)(5)48 of the Act because they 

are designed to prevent fraudulent and 

manipulative acts and practices and to 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 841

49 15 U.S.C. 78s(b)(7)(B).

50 15 U.S.C. 78s(b)(1).

51 17 CFR 200.30–3(a)(75).

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b–4.

3AUTOM is the Exchange’s electronic order 

delivery, routing, execution and reporting system, 

which provides for the automatic entry and routing 

of equity option and index option orders to the 

Exchange trading floor. Orders delivered through 

AUTOM may be executed manually, or certain 

orders are eligible for AUTOM’s automatic 

execution feature, AUTO–X. Equity option and 

index option specialists are required by the 

Exchange to participate in AUTOM and its features 

and enhancements. Option orders entered by 

Exchange members into AUTOM are routed to the 

appropriate specialist unit on the Exchange trading 

floor. See Exchange Rule 1080.

4This fee will be eligible for the monthly credit 

of up to $1,000 to be applied against certain fees, 

dues, charges and other amounts owed to the 

Exchange by certain members. See Securities 

Exchange Act Release No. 44292 (May 11, 2001), 66 

FR 27715 (May 18, 2001) (SR–Phlx–2001–49).

promote just and equitable principles of 

trade.

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

OneChicago does not believe that the 

OneChicago Listing Standards will have 

an impact on competition because (i) It 

can be expected that other selfregulatory organizations that will list 

security futures products will adopt 

substantially similar listing standards 

and (ii) any concerns about possible 

anti-competitive effects should be 

evaluated in light of the standards 

applicable to other financial 

instruments based on ‘‘narrowly based’’

security indices or baskets, which are 

consistent with the OneChicago Listing 

Standards. In addition, OneChicago 

does not believe that the proposed 

amendment to the Information Sharing 

Rule will have an impact on 

competition because such amendment 

deals with procedural aspects of sharing 

information and is not substantive. 

Similarly, OneChicago does not believe 

that the proposed amendment to the 

Sales Practice Rule will have an impact 

on competition because it is designed to 

reflect the fact that members of 

OneChicago that are registered with the 

NFA will be subject to the sales practice 

rules of such organization rather than 

the sales practice rules of the NASD. 

Finally, OneChicago does not believe 

that the proposed amendments to the 

Market Manipulation Rule, the Trading 

Ahead Rule or the Trading Against Rule 

or the other proposed rules will have an 

impact on competition because such 

amendments constitute non-substantive 

changes to reflect market practice in the 

areas to which they relate. 

C. Self-Regulatory Organization’s 

Statement on Comments on Proposed 

Rules Received From Members, 

Participants, or Others 

Comments on the OneChicago Listing 

Standards have not been solicited. 

III. Date of Effectiveness of the 

Proposed Rules and Timing for 

Commission Action

Pursuant to Section 19(b)(7)(B) of the 

Act,49 the proposed rule change, as filed 

with the Commission on November 7, 

2002, became effective on November 8, 

2002. Amendment No. 1 to the proposed 

rule change became effective on 

December 11, 2002. Within 60 days of 

the date of effectiveness of the proposed 

rule change, the Commission, after 

consultation with the CFTC, may 

summarily abrogate the proposed rule 

change and require that the proposed 

rule change be refiled in accordance 

with the provisions of Section 19(b)(1) 

of the Act.50

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rules 

conflict with the Act. Persons making 

written submissions should file nine 

copies of the submission with the 

Secretary, Securities and Exchange 

Commission, 450 Fifth Street, NW, 

Washington, DC 20549–0609. 

Comments also may be submitted 

electronically to the following e-mail 

address: rule-comments@sec.gov. Copies 

of the submission, all subsequent 

amendments, all written statements 

with respect to the proposed rules that 

are filed with the Commission, and all 

written communications relating to the 

proposed rules between the Commission 

and any person, other than those that 

may be withheld from the public in 

accordance with the provisions of 5 

U.S.C. 552, will be available for 

inspection and copying in the 

Commission’s Public Reference Room. 

Copies of these filings will also be 

available for inspection and copying at 

the principal office of OneChicago. 

Electronically submitted comments will 

be posted on the Commission’s internet 

Web site (http://www.sec.gov). 

All submissions should refer to File 

No. SR–OC–2002–04 and should be 

submitted by January 28, 2003.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.51

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–272 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–47109; File No. SR–Phlx–

2002–78] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by the 

Philadelphia Stock Exchange, Inc. To 

Increase the Transaction Charge for 

Off-Floor Broker-Dealer Orders 

Delivered via AUTOM and Executed via 

AUTO–X 

December 30, 2002. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–42 thereunder, 

notice is hereby given that on December 

16, 2002, the Philadelphia Stock 

Exchange, Inc. (‘‘Exchange’’ or ‘‘Phlx’’) 

submitted to the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule change as described 

in Items I, II, and III below, which Items 

have been prepared by the Phlx. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons.

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Phlx proposes to amend its 

schedule of dues, fees and charges to 

increase the off-floor broker-dealer 

equity option transaction charge from 

$.35 per contract to $.45 per contract for 

orders delivered through the Phlx 

Automated Options Market (‘‘AUTOM’’) 

System, and automatically executed by 

the Exchange’s Automatic Execution 

System (‘‘AUTO–X’’).3 The $.45 per 

contract transaction charge applicable to 

off-floor broker-dealer orders entered via 

AUTOM and executed via AUTO-X will 

apply to transactions in equity options 

only.4 The option transaction charge 

applicable to off-floor broker-dealer 

orders not executed by AUTO–X 

remains at $.35 per contract. The 

Exchange intends to implement this fee 

on transactions settling on or after 

January 2, 2003.

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Phlx included statements concerning 

the purpose of and basis for the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item IV below. The Exchange has 

842 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

5 15 U.S.C. 78f(b).

6 15 U.S.C. 78f(b)(4).

7 15 U.S.C. 78(s)(b)(3)(A)(ii).

8 17 CFR 240.19b–4(f)(2).

9 17 CFR 200.30–3(a)(12).

prepared summaries, set forth in 

Sections A, B, and C below, of the most 

significant aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The purpose of the proposed rule 

change is to raise revenue for the 

Exchange by charging a $.45 transaction 

charge for off-floor broker-dealer orders 

that are delivered via AUTOM and 

executed automatically via AUTO–X. 

Currently, the Exchange charges a fee 

of $.35 per contract for all off-floor 

broker-dealer transactions, regardless of 

how such an order is executed. The $.35 

charge will continue to apply to off-floor 

broker-dealer orders not executed by 

AUTO–X.

The $.35 charge for non-AUTO–X 

transactions and the $.45 charge for 

AUTO–X transactions apply to members 

for orders, received from other than the 

floor of the Exchange, for any account 

(i) in which the holder of beneficial 

interest is a member or non-member 

broker-dealer or (ii) in which the holder 

of beneficial interest is a person 

associated with or employed by a 

member or non-member broker-dealer. 

Accordingly, an order for the account of 

an ROT entered from off-floor would be 

subject to one of the two charges. 

2. Statutory Basis 

The Exchange believes that its 

proposal to amend its schedule of dues, 

fees and charges is consistent with 

Section 6(b) of the Act 5 in general, and 

furthers the objectives of Section 6(b)(4) 

of the Act 6 in particular, in that it is an 

equitable allocation of reasonable dues, 

fees, and other charges among Exchange 

members relating to the automatic 

execution of off-floor broker-dealer 

orders.

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Phlx does not believe that the 

proposed rule change will impose any 

inappropriate burden on competition. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

No written comments were either 

solicited or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing proposed rule change 

has been designated as a fee change 

pursuant to Section 19(b)(3)(A)(ii) of the 

Act 7 and Rule 19b–4(f)(2) 8 thereunder. 

Accordingly, the proposal will take 

effect upon filing with the Commission. 

At any time within 60 days of the filing 

of the proposed rule change, the 

Commission may summarily abrogate 

such rule change if it appears to the 

Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or otherwise in furtherance of the 

purposes of the Act.

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Persons making written submissions 

should file six copies thereof with the 

Secretary, Securities and Exchange 

Commission, 450 Fifth Street, NW., 

Washington, DC 20549–0609. Copies of 

the submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room. Copies of such filing will also be 

available for inspection and copying at 

the principal office of the Phlx. 

All submissions should refer to File 

No. SR–Phlx–2002–78 and should be 

submitted by January 28, 2003.

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.9

Margaret H. McFarland, 

Deputy Secretary.

[FR Doc. 03–270 Filed 1–6–03; 8:45 am] 

BILLING CODE 8010–01–P

DEPARTMENT OF THE TREASURY

Submission for OMB Review; 

Comment Request 

December 24, 2002. 

The Department of Treasury has 

submitted the following public 

information collection requirement(s) to 

OMB for review and clearance under the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. Copies of the 

submission(s) may be obtained by 

calling the Treasury Bureau Clearance 

Officer listed. Comments regarding this 

information collection should be 

addressed to the OMB reviewer listed 

and to the Treasury Department 

Clearance Officer, Department of the 

Treasury, Room 11000, 1750 

Pennsylvania Avenue, NW., 

Washington, DC 20220.

DATES: Written comments should be 

received on or before February 6, 2003 

to be assured of consideration. 

Internal Revenue Service 

OMB Number: 1545–1681. 

Form Number: IRS Form A. 

Type of Review: Extension. 

Title: Qualifications & Availability 

Form. 

Description: Form A is used by 

external applicants applying for clerical 

and technical positions with the 

Internal Revenue Service. Applicants 

will complete information relating to 

their address, job preference, veteran’s 

preference and a series of occupational 

questions, knowledge and skills along 

with background information. 

Respondents: Individuals or 

households. 

Estimated Number of Respondents:

90,000. 

Estimated Burden Hours Per 

Respondent: 30 minutes. 

Frequency of Response: On occasion. 

Estimated Total Reporting Burden:

45,000 hours. 

OMB Number: 1545–1685. 

Regulation Project Number: REG–

103735–00 NPRM and Temporary. 

Type of Review: Extension. 

Title: Tax Shelter Disclosure 

Statements. 

Description: The regulations provide 

guidance on the filing requirement 

under section 6011 for certain corporate 

taxpayers engaged in transactions 

producing tax savings in excess of 

certain dollar thresholds. 

Respondents: Business or other forprofit, individuals or households. 

Estimated Number of Respondents/

Recordkeepers: 1. 

Estimated Burden Hours Per 

Respondent/Recordkeeper: 1 hour. 

Frequency of Response: Annually. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 843

Estimated Total Reporting/

Recordkeeping Burden: 1 hour. 

OMB Number: 1545–1686. 

Regulation Project Number: REG–

103736–00 NPRM and Temporary. 

Type of Review: Extension. 

Title: Requirement to Maintain List of 

Investors in Potentially Abusive Tax 

Shelters. 

Description: The regulations provide 

guidance on the requirement under 

section 6112 to maintain a list of 

investors in potentially abusive tax 

shelters. 

Respondents: Business or other forprofit, individual or household. 

Estimated Number of Recordkeepers:

150. 

Estimated Burden Hours Per 

Recordkeeper: 100 hours.

Frequency of Response: On occasion. 

Estimated Total Recordkeeping 

Burden: 15,000 hours. 

OMB Number: 1545–1687. 

Regulation Project Number: REG–

110311–98 NPRM and Temporary. 

Type of Review: Extension. 

Title: Corporate Tax Shelter 

Registration. 

Description: The regulations provide 

the guidance required to activate the 

registration requirements of Internal 

Revenue Code (IRC) section 6111 and 

penalty provisions of IRC section 6707 

for confidential corporate tax shelters 

described in IRC section 6111(d). 

Respondents: Business or other forprofit. 

Estimated Number of Respondents: 4. 

Estimated Burden Hours Per 

Respondent: 15 minutes. 

Estimated Total Reporting Burden: 1 

hour. 

Clearance Officer: Glenn Kirkland 

(202) 622–3428, Internal Revenue 

Service, Room 6411–03, 1111 

Constitution Avenue, NW, Washington, 

DC 20224. 

OMB Reviewer: Joseph F. Lackey, Jr. 

(202) 395–7316, Office of Management 

and Budget, Room 10235, New 

Executive Office Building, Washington, 

DC 20503.

Lois K. Holland, 

Departmental Reports Management Officer.

[FR Doc. 03–267 Filed 1–6–03; 8:45 am] 

BILLING CODE 4830–01–P

DEPARTMENT OF VETERANS 

AFFAIRS 

Advisory Committee on Women 

Veterans; Notice of Meeting 

The Department of Veterans Affairs 

gives notice under Public Law 92–463 

(Federal Advisory Committee Act) that 

the Advisory Committee on Women 

Veterans will meet January 21–23, 2003, 

from 8:30 a.m. to 5 p.m. each day. The 

meeting will be held at the Department 

of Veterans Affairs, 810 Vermont 

Avenue, NW., Room 230, Washington, 

DC. The meeting is open to the public. 

The purpose of the Committee is to 

advise the Secretary of Veterans Affairs 

regarding the needs of women veterans 

with respect to healthcare, 

rehabilitation, compensation, outreach, 

and other programs and activities 

administered by the VA designed to 

meet such needs. The Committee will 

make recommendations to the Secretary 

regarding such programs and activities. 

On January 21, the agenda topics for 

this meeting will include briefings and 

updates on the Women Veterans Health 

Program, the National Survey of 

Veterans, Board of Veterans Appeals 

issues, legislative issues affecting 

women veterans, community-based 

outpatients clinics, and the National 

Women Veterans Study. On January 22, 

the Committee will be briefed on 

Committee requirements, compensation 

and pension benefits, VA-funded 

research on women veterans, the status 

of the VA Homeless Program and related 

issues that the Committee members may 

choose to introduce. On January 23, 

discussions will include briefings 

regarding the VA Domiciliary Programs 

and the 8 Comprehensive Women 

Veterans Health Centers. The Committee 

is tentatively scheduled for a briefing on 

Capitol Hill and from the Department of 

Labor, Veterans Employment and 

Training Service. 

Any member of the public wishing to 

attend should contact Ms. Maryanne 

Carson, at the Department of Veterans 

Affairs, Center for Women Veterans 

(00W), 810 Vermont Avenue, NW., 

Washington, DC 20420. Ms. Carson may 

be contacted either by phone at (202) 

273–6193, fax at (202) 273–7093 or email at 00W@mail.va.gov. Interested 

persons may attend, appear before, or 

file statements with the Committee. 

Statements, if in written form, may be 

filed before the meeting, or within 10 

days after the meeting.

Dated: December 23, 2002. 

By Direction of the Secretary. 

Nora E. Egan, 

Committee Management Officer.

[FR Doc. 03–258 Filed 1–6–03; 8:45 am] 

BILLING CODE 8320–01–M

DEPARTMENT OF VETERANS 

AFFAIRS 

Allowance for Private Purchase of an 

Outer Burial Receptacle in Lieu of a 

Government-Furnished Graveliner for 

a Grave in a VA National Cemetery

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

SUMMARY: Public Law 104–275 was 

enacted on October 9, 1996. It allowed 

the Department of Veterans Affairs (VA) 

to provide a monetary allowance 

towards the private purchase of an outer 

burial receptacle for use in a VA 

national cemetery. Under VA regulation 

(38 CFR 1.629), the allowance is equal 

to the average cost of Governmentfurnished graveliners minus any 

administrative costs to VA. The law 

continues to provide a veteran’s 

survivors with the option of selecting a 

Government-furnished graveliner for 

use in a VA national cemetery where 

such use is authorized. 

The purpose of this Notice is to notify 

interested parties of the average cost of 

Government-furnished graveliners, 

administrative costs that relate to 

processing a claim, and the amount of 

the allowance payable for qualifying 

interments that occur during calendar 

year 2003.

FOR FURTHER INFORMATION CONTACT:

Karen Barber, Program Analyst, 

Legislation and Regulatory Division 

(402B3), National Cemetery 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420. Telephone: 

202–273–5183 (this is not a toll-free 

number).

SUPPLEMENTARY INFORMATION: Under 38 

U.S.C. 501(a) and Pub. L. 104–275, 

Section 213, VA may provide a 

monetary allowance for the private 

purchase of an outer burial receptacle 

for use in a VA national cemetery where 

its use is authorized. The allowance for 

qualified interments that occur during 

calendar year 2003 is the average cost of 

Government-furnished graveliners in 

fiscal year 2002, less the administrative 

costs incurred by VA in processing and 

paying the allowance in lieu of the 

Government-furnished graveliner. 

The average cost of Governmentfurnished graveliners is determined by 

taking VA’s total cost during a fiscal 

year for single-depth graveliners that 

were procured for placement at the time 

of interment and dividing it by the total 

number of such graveliners procured by 

VA during that fiscal year. The 

calculation excludes both graveliners 

procured and pre-placed in gravesites as 

part of cemetery gravesite development 

844 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Notices 

projects and all double-depth 

graveliners. Using this method of 

computation, the average cost was 

determined to be $162.90 for fiscal year 

2002. 

The administrative costs incurred by 

VA consist of those costs that relate to 

processing and paying an allowance in 

lieu of the Government-furnished 

graveliner. These costs have been 

determined to be $9.75 for calendar year 

2003. 

The net allowance payable for 

qualifying interments occurring during 

calendar year 2003, therefore, is 

$153.15.

Approved: December 26, 2002. 

Anthony J. Principi, 

Secretary of Veterans Affairs.

[FR Doc. 03–217 Filed 1–6–03; 8:45 am] 

BILLING CODE 8320–01–P

This section of the FEDERAL REGISTER

contains editorial corrections of previously

published Presidential, Rule, Proposed Rule,

and Notice documents. These corrections are

prepared by the Office of the Federal

Register. Agency prepared corrections are

issued as signed documents and appear in

the appropriate document categories

elsewhere in the issue.

Corrections Federal Register

845

Vol. 68, No. 4

Tuesday, January 7, 2003

DEPARTMENT OF COMMERCE 

International Trade Adminstration 

[A–201–827] 

Notice of Final Rescission of 

Antidumping Duty Administrative 

Review: Certain Large Diameter 

Carbon and Alloy Seamless Standard, 

Line and Pressure Pipe from Mexico

Correction 

In notice document 02–33134 

beginning on page 81 in the issue of 

Thursday, January 2, 2003, make the 

following correction: 

On page 81, in the third column, in 

the EFFECTIVE DATE section, in the first 

and second lines, ‘‘(Insert date of 

publication in the Federal Register).’’ 

should read, ‘‘January 2, 2003’’.

[FR Doc. C2–33134 Filed 1–6–03; 8:45 am] 

BILLING CODE 1505–01–D 

Tuesday,

January 7, 2003

Part II

Environmental 

Protection Agency

40 CFR Parts 9, 710, and 723

TSCA Inventory Update Rule Amendments

848 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 9, 710, and 723

[OPPT–2002–0054; FRL–6767–4] 

RIN 2070–AC61

TSCA Inventory Update Rule 

Amendments

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is promulgating 

amendments to the Toxic Substances 

Control Act (TSCA) section 8(a) 

Inventory Update Rule (IUR). The IUR 

currently requires manufacturers 

(including importers) of certain 

chemical substances on the TSCA 

Chemical Substances Inventory to report 

data on each chemical’s current 

production volume, site–limited status, 

and plant site information every 4 years. 

Through these IUR amendments (IURA), 

EPA is requiring the reporting of 

additional data for certain chemicals to 

assist EPA and others in screening 

potential exposures and risks resulting 

from industrial chemical operations and 

commercial and consumer uses of TSCA 

chemical substances. EPA is also 

modifying the IUR reporting and 

recordkeeping requirements, removing 

one reporting exemption and creating 

others, and modifying its procedures for 

making Confidential Business 

Information claims. EPA is also making 

certain non–substantive technical 

corrections.

DATES: This final rule is effective 

February 6, 2003. For purposes of 

judicial review, this rule shall be 

promulgated at 1 p.m. eastern daylight/

standard time on January 21, 2003.

FOR FURTHER INFORMATION CONTACT: For 

general information contact: Barbara 

Cunningham, Acting Director, 

Environmental Assistance Division, 

Office of Pollution Prevention and 

Toxics (7401M), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone number: (202) 564–8170; e–

mail address: TSCA–Hotline@epa.gov. 

For technical information contact: 

Susan Sharkey, Project Manager, 

Economics, Exposure and Technology 

Division (7406M), Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone number: (202) 564–8789; e–

mail address: sharkey.susan@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information 

A. Does this Action Apply to Me? 

You may be affected by this action if 

you manufacture (defined by statute to 

include import) chemical substances 

currently subject to reporting under the 

Inventory Update Rule (IUR) at 40 CFR 

part 710 or if you manufacture inorganic 

chemical substances. Any use of the 

term ‘‘manufacture’’ in this document 

will encompass ‘‘import,’’ unless 

otherwise stated. In the past, persons 

that only are processors of chemical 

substances have not been required to 

comply with the requirements of 40 CFR 

part 710. These amendments do not 

change the status of processors under 

the regulations at 40 CFR part 710. 

Potentially affected categories and 

entities may include, but are not limited 

to: 

Chemical manufacturers and 

importers currently subject to IUR 

reporting, and chemical manufacturers 

and importers of inorganic chemical 

substances (NAICS codes 325, 32411). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. North American Industrial 

Classification System (NAICS) codes 

have been provided to assist you and 

others in determining whether this 

action applies to certain entities. To 

determine whether you or your business 

is affected by this action, you should 

carefully examine the applicability 

provisions in § 710.48 in the regulatory 

text. If you have any questions regarding 

the applicability of this action to a 

particular entity, consult the technical 

contact person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Get Copies of this 

Document or Other Related 

Information? 

1. Docket. EPA has established an 

official public docket for this action 

under docket ID number OPPT–2002–

0054. The official public docket consists 

of the documents specifically referenced 

in this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the EPA Docket 

Center, Rm. B102–Reading Room, EPA 

West, 1301 Constitution Ave., NW., 

Washington, DC. The EPA Docket 

Center is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The EPA Docket Center 

Reading Room telephone number is 

(202) 566–1744 and the telephone 

number for the OPPT Docket, which is 

located in EPA Docket Center, is (202) 

566–0280. 

2. Electronic access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. An 

electronic version of the public docket 

is available through EPA’s electronic 

public docket and comment system, 

EPA Dockets. You may use EPA Dockets 

at http://www.epa.gov/edocket/ to view 

public comments, access the index 

listing of the contents of the official 

public docket, and access those 

documents in the public docket that are 

available electronically. Although not 

all docket materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified in Unit I.B.1. Once in the 

system, select ‘‘search,’’ then key in the 

appropriate docket identification 

number. 

II. Background 

A. What Action is the Agency Taking? 

1. Substantive changes to the CFR. 

EPA is promulgating amendments to the 

IUR (IURA) which were proposed on 

August 26, 1999 (64 FR 46772) (FRL–

6097–4), taking into consideration 

comments received on the proposal. The 

amendments to the IUR that are 

contained in this final rule, as well as 

the inventory update provisions of 40 

CFR part 710 that are unchanged by 

these amendments, appear in a new 

subpart C to 40 CFR part 710. The 

inventory update provisions that apply 

to the 2002 update remain unchanged 

although the Agency has added subpart 

headings in order to distinguish the 

provisions that apply to the 2002 update 

(i.e., the existing IUR) and the new and 

revised provisions promulgated in this 

rule. The following is a brief listing of 

the primary changes to the IUR, which 

do not affect the regulations in place for 

IUR reporting in 2002. These changes 

are described in more detail in this 

document, along with a summary of the 

comments received and the Agency’s 

summary response to those comments. 

First, EPA is amending the existing 

IUR regulations, 40 CFR 710.28 and 

710.32, which appear in the new 

subpart C as §§ 710.48 and 710.52, to 

raise the production volume basic 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 849

reporting threshold from the current 

10,000 pounds (lbs.) per year to 25,000 

lbs. per year, and to add a new largervolume reporting threshold of 300,000 

lbs. per year for the reporting of 

processing and use information. 

Second, EPA is amending 40 CFR 

710.32, which appears in the new 

subpart C as § 710.52, to add exposure–

related information to the existing 

reporting requirements for chemical 

substances covered by the IUR. 

Specifically, the Agency is requiring 

that manufacturers subject to the 

amended rule (‘‘submitters’’) report, in 

ranges: (1) The number of workers 

reasonably likely to be exposed to the 

chemical substance at the site of 

manufacture; (2) the physical form(s) in 

which the chemical substance is sent 

off–site; (3) the percentage of total 

reported production volume associated 

with each physical form; and (4) the 

maximum concentration of the chemical 

substance at the time it leaves the 

submitter’s manufacturing site or, if the 

chemical substance is site–limited, the 

maximum concentration at the time it is 

reacted on–site to produce a different 

chemical substance. 

Third, EPA is amending 40 CFR 

710.32, which appears in the new 

subpart C as § 710.52, to require 

chemical manufacturers of chemical 

substances with production volumes of 

300,000 lbs. or greater to report certain 

exposure–related information 

concerning the processing and use of 

each reportable chemical substance that 

is conducted at sites that receive the 

reportable chemical substance from the 

submitter site directly or indirectly 

(whether the recipient site(s) are 

controlled by the submitter site or not) 

(including through a broker/distributor, 

from a customer of the submitter, etc.). 

Specifically, manufacturers of these 

larger–production volume chemical 

substances will be required to report, to 

the extent the information is readily 

obtainable: 

• The type of industrial processing 

or use operation(s) at each site, 

including downstream sites. 

• The five–digit NAICS codes that 

best describe the industrial activities 

during the processing or use operation. 

• The industrial function of each 

chemical substance during the 

processing or use operation, for each 

NAICS code reported. 

• The percentages of the submitter’s 

production volume used in each 

industrial function category. 

• The number of sites where the 

various processing or use operations 

occur. 

• The number of workers reasonably 

likely to be exposed to the chemical 

substance in each processing or use 

operation. 

• The categories of commercial and 

consumer uses of the reportable 

chemical substance. 

• An indication of the presence of 

the reportable chemical substance in or 

on consumer products intended for use 

by children. 

• The percentages of the submitter’s 

production volume associated with each 

commercial and consumer product 

category. 

• The maximum concentration of 

the reportable chemical substance in 

each commercial and consumer product 

category. 

Fourth, EPA is revoking the current 

full exemption from IUR reporting at 40 

CFR 710.26(a) for inorganic chemical 

substances, and is phasing in reporting 

for these substances, which appears in 

the new subpart C as § 710.46(b)(3). For 

the first submission period following 

promulgation of IURA (i.e., the 2006 

submission period), EPA is requiring 

partial reporting for these substances 

(i.e., inorganic chemical substances will 

not be subject to the reporting of 

processing and use information). In 

subsequent submission periods, 

manufacturers of an inorganic substance 

will be subject to full reporting (i.e., 

including the processing and use 

information reporting requirements), to 

the extent that they manufacture at least 

300,000 lbs. of the substance at a site 

during a given reporting year. 

Fifth, EPA is amending 40 CFR 

710.26, which appears in the new 

subpart C as § 710.46(b)(1), to create a 

partial reporting exemption for certain 

chemical substances termed ‘‘petroleum 

process streams’’ for purposes of 

reporting under the IURA (i.e., these 

chemical substances are not subject to 

the reporting of processing and use 

information). 

Sixth, EPA is providing, in 40 CFR 

710.46(b)(2), a partial exemption for 

specific chemical substances (i.e., these 

chemical substances are not subject to 

the reporting of processing and use 

information) where EPA has identified 

that there is a low current interest in the 

IURA processing and use information 

related to the chemical. EPA has 

identified a list of chemicals that are 

covered by this partial exemption, and 

provides a process for revising this list 

over time because interest in the IURA 

processing and use information for a 

particular chemical can change. 

Seventh, EPA is amending 40 CFR 

710.26, which appears in the new 

subpart C as § 710.46(a)(4), to provide a 

full exemption from IUR reporting for 

certain forms of natural gas. 

Eighth, EPA is amending 40 CFR 

710.32, which appears in the new 

subpart C as § 710.52, to require the 

reporting of more specific information 

to assist in the accurate identification of 

plant sites reporting under IUR. 

Ninth, EPA is amending 40 CFR 

710.28, 710.32, and 710.33, which 

appear in the new subpart C as 

§§ 710.48, 710.52, and 710.53, to change 

the period for which reporting is 

required from a corporate fiscal year to 

a calendar year basis. 

Tenth, EPA is amending 40 CFR 

710.32, which appears in the new 

subpart C as § 710.52, to allow 

submitters to claim their production 

volume range as CBI, in addition to the 

existing requirement that submitters 

report a specific production volume 

number and the CBI status of that 

specific number. Under the IURA, some 

submitters may choose to assert a 

confidentiality claim for specific 

production volume information while 

releasing the more general production 

volume range as public information. 

Eleventh, EPA is amending 40 CFR 

710.38, which appears in the new 

subpart C as § 710.58, to require 

substantiation of plant site 

confidentiality claims at the time such 

claims are made in IUR submissions to 

EPA (i.e., ‘‘upfront substantiation’’), in a 

manner similar to the upfront 

substantiation of chemical identity, 

which will continue to be required 

under 40 CFR 710.38, which appears in 

the new subpart C as § 710.58. 

Finally, EPA is amending 40 CFR 

710.37, which appears in the new 

subpart C as § 710.57, to extend the 

records retention period from 4 years to 

5 years. 

2. Technical changes to the CFR. The 

amendments that are contained in this 

final rule, as well as the parts of 40 CFR 

part 710 that are unchanged by these 

amendments, are codified in a new 

subpart C in 40 CFR part 710. Because 

promulgation of IURA will overlap a 

current IUR reporting cycle, EPA must 

maintain the existing IUR provisions in 

40 CFR part 710 in effect throughout the 

2002 submission period for the existing 

IUR. Submitters filing IUR reports in 

2002 must follow the regulations 

currently contained in 40 CFR part 710, 

which will now appear under the new 

heading as subpart B. On January 1, 

2003, the regulations in this final rule 

that are promulgated in subpart C of 40 

CFR part 710 will become effective for 

use by submitters filing IURA reports in 

2006 and beyond. (See § 710.1(b) of the 

regulatory text) Since the Agency has 

duplicated in subpart C those provisions 

from subpart B (i.e., the existing part 

710) that are unchanged by these 

850 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

amendments, once the current reporting 

cycle is complete, subpart B will no 

longer be applicable and the Agency 

will issue a technical amendment to 

remove it from the CFR. The creation of 

subparts in 40 CFR part 710 does not 

make any substantive changes other 

than those that have been presented in 

this final rule. 

Although there are no substantive 

changes to the provisions from existing 

40 CFR part 710 that have been 

incorporated into the new subpart C, the 

Agency has made minor technical 

corrections to those provisions, as well 

as technical changes to the existing 

provisions that now appear in subpart 

A. Specifically, the Agency is correcting 

several typographical errors that appear 

in the existing 40 CFR part 710, and is 

making other minor non–substantive 

edits to that text. These technical 

corrections include the following. (Note 

wherever a change is being made to a 

new regulatory text provision, a 

regulatory text citation to the 

corresponding existing 40 CFR part 710 

provision is provided in parentheses, 

e.g., § 710.59 (§ 710.39). This 

parenthesized citation is provided in 

order to identify where the new 

regulatory text originated.) 

In accordance with plain language 

principles, EPA has substituted ‘‘will’’

or ‘‘must’’ for ‘‘shall.’’ These three terms 

are considered to be equivalent, and 

delineate requirements to be followed or 

met. Corrections were made in the 

following sections: § 710.1(d) 

(§ 710.1(c)); § 710.3(a) (§ 710.2(a)); 

§ 710.3(b) (§ 710.2(b)); § 710.3(c) 

(§ 710.2(c)); § 710.3(d) in the definition 

for ‘‘Administrator’’ (§ 710.2(e)); 

§ 710.3(d) in the definition for ‘‘site’’

(§ 710.2(w)); § 710.3(d) in the note 

following the definition for ‘‘small 

quantities for research and 

development’’ (§ 710.2(y)); and 

§ 710.4(b)(2) (§ 710.4(b)(2)). 

EPA has corrected some punctuation 

and spelling errors: commas were added 

in § 710.1(a) (§ 710.1(a)), in § 710.3(d) in 

the definition for ‘‘distribute in 

commerce’’ (§ 710.2(j)) and in the 

definition for ‘‘small quantities for 

research and development’’ and in the 

note following the same definition 

(§ 710.2(y)); commas were removed in 

the definition for ‘‘distribute in 

commerce’’ (§ 710.2(j)) and in the note 

following the definition for ‘‘distribute 

in commerce’’ (§ 710.2(y)); in § 710.3(d) 

‘‘Process ‘for commercial purposes’’’

was substituted for ‘‘Process for 

‘commercial purposes’’’ in the 

definition for ‘‘Process ‘for commercial 

purposes’’’ ( § 710.2(u)); in § 710.3(d) 

‘‘juridical’’ was substituted for 

‘‘juridicial’’ in the definition for 

‘‘person’’ (§ 710.2(s)) and ‘‘appropriate’’

was substituted for ‘‘appropriated’’ in 

the definition for ‘‘technically qualified 

person’’ (§ 710.2(aa)(2)); in § 710.4(d)(2) 

‘‘premanufacture’’ was substituted for 

‘‘premanufacturing’’ (§ 710.4(d)(2)); and 

in § 710.4(d)(5) ‘‘photographic films’’

was substituted for ‘‘photographic, 

films’’ (§ 710.4(d)(5)). 

EPA has made certain additional non–

substantive changes. In § 710.3(d), EPA 

substituted ‘‘1,000 lbs. (454 kg)’’ for 

‘‘1,000 pounds’’ in the note following 

the definition for ‘‘small quantities for 

research and development’’ (§ 710.2(y)). 

EPA has substituted ‘‘his/her’’ for ‘‘his’’

in sections where the word ‘‘his’’ was 

used: in two instances in § 710.3(d) in 

the definition for ‘‘Administrator’’

(§ 710.2(e)); in § 710.3(d) in the 

definition for importer (§ 710.2(l)(2)); 

and in § 710.3(d) in the definition for 

‘‘technically qualified person’’

(§ 710.2(aa)). 

EPA has made certain additional nonsubstantive changes and updated 

information submission information in 

§ 710.59 by substituting ‘‘Availability of 

reporting form and instructions’’ for 

‘‘How do I submit the required 

information for the 1998 reporting 

cycle?’’ (§ 710.39); in § 710.59(a) by 

substituting ‘‘http://www.epa.gov/oppt/

iur’’ for ‘‘http://www.epa.gov/opptintr/

iur98’’ and by removing ‘‘or Fax-onDemand by using a faxphone to call 

(202) 401–0527 and selecting item 

5119’’ as Fax-on-Demand is no longer 

available (§ 710.39(a)); in § 710.59(b) by 

substituting ‘‘Guidance for completing 

the reporting form and preparing an 

electronic (magnetic media) report will 

be made available prior to each 

submission period.’’ for the existing 

paragraph after the heading 

(§ 710.39(b)); in § 710.59(c) by 

substituting ‘‘will send’’ for ‘‘is mailing’’

and ‘‘reporting package (consisting of a 

copy of Form U and a copy of the 

reporting instructions) to those 

submitters that reported in the IUR 

submission period that occurred 

immediately prior to the current 

submission period.’’ for ‘‘reporting 

package to those companies that 

reported in 1994. ’’ (§ 710.39(c)); in 

§ 710.59(c)(1), EPA substituted ‘‘By 

telephone’’ for ‘‘By phone’’ and 

removed ‘‘or TDD 202–554–0551’’ as the 

TDD number is no longer available 

(§ 710.39(c)(1)); in § 710.59(c)(2), EPA 

substituted ‘‘TSCA-Hotline@epa.gov’’

for ‘‘TSCA-Hotline@epamail.epa.gov’’

(§ 710.39(c)(2)); and in § 710.59(c) and 

(d) EPA substituted ‘‘7408M’’ for 

‘‘7408,’’ ‘‘OPPT Document Control 

Officer (DCO)’’ for ‘‘Document Control 

Officer,’’ and ‘‘Environmental Protection 

Agency’’ for ‘‘U.S. Environmental 

Protection Agency’’ (§ 710.39(c)(3)); and 

by adding § 710.59(c)(4) to state that the 

reporting form and instructions will 

additionally be available via the 

Internet. 

EPA has also made minor technical 

corrections to the existing provisions in 

§ 710.39 that now appear in subpart B. 

EPA removed ‘‘for the 1998 reporting 

cycle’’ from the section heading to 

clarify that the section applies to the 

current reporting cycle. In § 710.39(a), 

EPA replaced the website address with 

the current address, www.epa.gov/oppt/

iur/iur02/index.htm, and removed the 

Fax-on-Demand information, which is 

no longer available. In § 710.39(c)(1), 

EPA removed the TDD number, which 

is no longer available. The Agency 

corrected dates and addresses in 

§ 710.39(c), (c)(3), and (d) by replacing 

‘‘1994’’ with ‘‘1998,’’ ‘‘Mail Code 7408’’

with ‘‘Mail Code 7408M,’’ and inserting 

‘‘OPPT’’ before ‘‘Document Control 

Officer.’’

EPA made minor revisions to clarify 

the meaning of certain provisions. In 

§ 710.1(a) ‘‘and recordkeeping’’ was 

inserted after ‘‘governing reporting,’’

‘‘(TSCA)’’ was inserted after ‘‘(15 U.S.C. 

2607(a)),’’ and ‘‘and keeping current’’

was inserted after ‘‘purpose of 

compiling’’ (§ 710.1(a)); in § 710.1(d), 

the note following the paragraph was 

added to the end of the paragraph and 

‘‘Note: As a matter of traditional Agency 

policy,’’ was removed (§ 710.1(b)); in 

§ 710.52(c)(1) ‘‘submitter’’ was 

substituted for ‘‘respondent’’ and ‘‘as 

described in § 710.59’’ for ‘‘from EPA at 

the address set forth in § 710.39’’

(§ 710.32(c)(1)); in § 710.52(c)3(ii) 

‘‘indicating, for each reportable 

chemical substance at each site,’’ was 

substituted for ‘‘for each substance for 

which information is being submitted 

indicating’’ and added ‘‘, or both 

manufactured in the United States and 

imported in the United States’’

(§ 710.32(c)(5)); in § 710.52(c)(3)(iii) 

‘‘designation indicating, for each 

reportable chemical substance at each 

site,’’ was substituted for ‘‘statement for 

each substance for which information is 

being submitted indicating’’

(§ 710.32(c)(6)); in §§ 710.45 and 

710.55(a) ‘‘submission period’’ was 

substituted for ‘‘reporting period’’

(§§ 710.25 and 710.35(a)); in § 710.48 

‘‘section’’ was substituted for ‘‘§ 710.28’’

(§ 710.28); in § 710.48(b) ‘‘paragraphs (a) 

and (b)’’ were deleted (§ 710.28(c)); in 

§ 710.52(c)(3)(iv) ‘‘reportable’’ was 

substituted for ‘‘subject’’ (§ 710.32(c)(7)); 

in § 710.58(b) ‘‘Chemical identity.’’ was 

added as a section header to more 

clearly identify the topic of the section, 

and ‘‘The following steps must be taken 

to assert’’ was substituted for ‘‘To 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 851

assert,’’ and ‘‘reportable’’ was 

substituted for ‘‘specific’’ (§ 710.38(c)(b) 

and (c)); in § 710.58(b)(1) ‘‘submitter’’

was substituted for ‘‘person’’

(§ 710.38(c)(1)); in § 710.58(b)(1)(i) 

‘‘subpart’’ was substituted for ‘‘part’’

(§ 710.58(c)(1)(i)); in § 710.58(b)(1)(vi) 

substituted ‘‘have been taken’’ for ‘‘have 

you taken’’ and ‘‘the’’ for ‘‘this’’

(§ 710.38(c)(1)(vi)); in § 710.58(c)(2) 

‘‘listed in paragraph (c)(1) of this 

section’’ was added for clarification 

purposes, ‘‘submitter’’ was substituted 

for ‘‘person’’ and ‘‘clearly identify the 

information that is claimed confidential 

by marking the specific information on 

each page with a label such as 

‘confidential business information,’

‘proprietary,’ or ‘trade secret.’’’ was 

substituted for ‘‘mark that information 

as ‘trade secret,’ ‘confidential,’ or other 

appropriate designation.’’

(§ 710.38(c)(2)); and in § 710.58(d) ‘‘is 

indicated on the reporting form’’ was 

substituted for ‘‘accompanies 

information at the time it is’’ and 

‘‘confidentiality claim substantiation’’

was substituted for ‘‘substantiation’’

(§ 710.38(d)). 

EPA replaced ‘‘manufactured or 

imported’’ with ‘‘manufactured 

(including imported)’’ to provide 

consistency and clarification. EPA made 

this change in: § 710.52(c)(3)(iv) 

(§ 710.32(c)(7)); § 710.58(c)(1)(v) 

(§ 710.38(c)(1)(v)); § 710.58(c)(1)(vi) 

(§ 710.38(c)(1)(vi)); § 710.58(c)(1)(vii) 

(§ 710.38(c)(1)(vii)); § 710.58(c)(1)(viii) 

(§ 710.38(c)(1)(viii)); § 710.58(c)(1)(x) 

(§ 710.38(c)(1)(x)); and § 710.48 

(§ 710.28). 

EPA moved three definitions that 

currently appear in § 710.2 to § 710.23, 

to clarify that they apply to the existing 

IUR. In § 710.3(d), three changes were 

made in recognition that the definitions 

are no longer separated into sections, 

but are contained within paragraph (d): 

in the § 710.3(d) definition for 

‘‘Commerce,’’ ‘‘paragraph (1) of this 

definition’’ was substituted for 

‘‘paragraph (1) of this section’’

(§ 710.2(i)), and in the § 710.3(d) 

definition for ‘‘Technically qualified 

individual,’’ ‘‘this paragraph’’ was 

substituted for ‘‘paragraph (aa)(3) of this 

section’’ and ‘‘paragraph (1) of this 

definition’’ was substituted for 

‘‘paragraph (aa)(1) of this section’’

(§ 710.2(aa)(3)). 

Section 553 of the Administrative 

Procedure Act (APA), 5 U.S.C. 

553(b)(B), provides that, when an 

agency for good cause finds that notice 

and public procedure are impracticable, 

unnecessary or contrary to the public 

interest, the agency may promulgate a 

rule without providing notice and an 

opportunity for public comment. EPA 

has determined that there is good cause 

for making these minor regulatory 

changes in this final rule without prior 

notice and opportunity for comment 

because these minor corrections are 

non–substantive and do not affect the 

meaning or legal effect of the provisions 

affected, which remains the same as it 

was when the provision appeared in 40 

CFR part 710. Thus, notice and public 

procedure are unnecessary for these 

minor changes to the existing or new 

provisions in 40 CFR part 710. EPA 

finds that this constitutes good cause 

under 5 U.S.C. 553(b)(B). 

B. What is the Agency’s Authority for 

Taking this Action? 

EPA is required under TSCA section 

8(b), 15 U.S.C. 2607(b), to compile and 

keep current an inventory of chemical 

substances in commerce. This inventory 

is known as the TSCA Chemical 

Substances Inventory (the TSCA 

Inventory). In 1977, EPA promulgated a 

rule (42 FR 64572, December 23, 1977) 

under TSCA section 8(a), 15 U.S.C. 

2607(a), to compile an inventory of 

chemical substances in commerce at 

that time. In 1986, EPA promulgated the 

initial IUR at 40 CFR part 710 (51 FR 

21447, June 12, 1986), also under TSCA 

section 8(a), to facilitate the periodic 

updating of the TSCA Inventory and to 

support activities associated with the 

implementation of TSCA. 

TSCA section 8(a)(1) authorizes the 

EPA Administrator to promulgate rules 

under which manufacturers and 

processors of chemical substances and 

mixtures (referred to hereinafter as 

‘‘chemical substances’’) must maintain 

such records and submit such 

information as the Administrator may 

reasonably require. Under TSCA section 

8(a), the Agency may collect 

information associated with chemical 

substances to the extent that it is known 

to or reasonably ascertainable by the 

submitter. TSCA section 8(a) gives EPA 

broad discretion in determining the 

information for which reporting can be 

required. Some of the types of 

information which can be required 

under TSCA section 8(a)(2) include: 

Categories of use for each chemical 

substance; estimates of the amount 

manufactured or processed for each 

category of use; a description of the 

byproducts resulting from the 

manufacture, processing, use, or 

disposal of each chemical substance; an 

estimate of the number of individuals 

exposed in their places of employment; 

and the duration of such exposure. 

TSCA section 8(a) generally excludes 

small manufacturers and processors of 

chemical substances from the reporting 

requirements established in TSCA 

section 8(a). However, EPA is 

authorized by TSCA section 8(a)(3) to 

require TSCA section 8(a) reporting 

from small manufacturers and 

processors with respect to any chemical 

substance that is the subject of a rule 

proposed or promulgated under TSCA 

section 4, 5(b)(4), or 6, or that is the 

subject of an order under TSCA section 

5(e), or that is the subject of relief that 

has been granted pursuant to a civil 

action under TSCA section 5 or 7. The 

standard for determining whether an 

entity qualifies as a ‘‘small 

manufacturer’’ for purposes of 40 CFR 

710.29, and for 40 CFR part 710 

generally, is defined in 40 CFR 704.3. 

Processors are not currently subject to 

the regulations at 40 CFR part 710. 

This document promulgates the IURA 

as subpart C in 40 CFR part 710, which 

includes provisions copied from the 

existing IUR regulations in 40 CFR part 

710 that are not substantively changed 

as a part of this rulemaking, and the 

new IURA provisions in this final rule. 

Failure to comply fully with any 

provision of this final rule will be a 

violation of TSCA section 15 and will 

subject the violator to the penalties of 

TSCA sections 16 and 17. 

C. What is the Inventory Update Rule 

(IUR)? 

The IUR requires U.S. manufacturers 

of organic chemicals to report to EPA 

every 4 years the identity of chemical 

substances manufactured annually 

during the reporting year in quantities 

of 10,000 lbs. or more at each plant site 

they own or control. The current IUR 

generally excludes several categories of 

substances from its reporting 

requirements, i.e., polymers, inorganic 

substances, microorganisms, and 

naturally occurring chemical 

substances. Plant sites subject to the 

rule are currently required to report 

information such as company name, 

plant site location, plant site Dun and 

Bradstreet number(s), identity of the 

reportable chemical substance, and 

production volume of each reportable 

chemical substance. Data were reported 

to EPA under the IUR in 1986, 1990, 

1994, and 1998, and a collection is 

occurring in 2002. 

The data reported under IUR are used 

to update the information maintained 

on the TSCA Inventory, which is a 

listing of chemical substances in 

commerce. EPA uses the TSCA 

Inventory and data reported under the 

IUR to support many TSCA-related 

activities and to provide overall support 

for a number of EPA and other Federal 

health, safety, and environmental 

protection activities (See Unit II.E. for 

852 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

further explanation of some of these 

activities). 

D. Why is EPA amending the IUR? 

EPA is amending the IUR for three 

primary reasons: (1) To tailor the 

chemical substance reporting 

requirements to more closely match the 

Agency’s information needs; (2) to 

obtain new and updated information 

relating to potential exposures to a 

subset of chemical substances listed on 

the TSCA Inventory; and (3) to improve 

the utility of the information reported. 

These amendments will enhance the 

information collected through the IUR, 

improve the scope of chemicals covered 

by the rule, and improve CBI claims, 

thereby accomplishing these three goals. 

These goals are supported by the 

policy in section 2(b)(1) of TSCA, that 

‘‘adequate data should be developed 

with respect to the effect of chemical 

substances and mixtures on health and 

the environment and that the 

development of such data should be the 

responsibility of those who manufacture 

and those who process such chemical 

substances and mixtures.’’ The data 

currently available to EPA are generally 

inadequate for risk screening purposes. 

TSCA section 8(a)(2) authorizes EPA to 

require manufacturers and processors of 

chemical substances to report a wide 

variety of data, including exposure–

related information which will be 

reported for certain chemical substances 

under IURA. These amendments remove 

certain reporting requirements and add 

others to focus reporting under the IUR 

on that information which is most 

needed by EPA and other Federal 

agencies for screening, assessing, and 

managing risk. Additionally, the 

availability of these data will enhance 

public awareness of basic information 

about chemical substances. 

Any evaluation of potential ‘‘risk’’ is 

generally based on a combination of 

hazard information and exposure 

information. EPA relies on risk 

screening to indicate which chemical 

substances pose a potential risk to 

human health or the environment, and 

thus warrant a more detailed, resource 

intensive analysis. The EPA Science 

Advisory Board’s report ‘‘Reducing 

Risk: Setting Priorities and Strategies for 

Environmental Protection’’ (Ref. 1) and 

the National Academy of Public 

Administration’s report ‘‘Setting 

Priorities, Getting Results, A New 

Direction for EPA’’ (Ref. 2) recognize 

that EPA’s ability to use risk screening 

to set priorities and allocate its limited 

resources has been significantly 

impeded by a lack of exposure data. The 

manufacturing, processing, and use of 

chemicals on the TSCA Inventory result 

in a wide array of exposure scenarios. 

The exposure-related data included in 

IURA will greatly improve EPA’s ability 

to conduct risk screening to identify 

chemical substances that could pose an 

unreasonable risk to human health or to 

the environment, or that otherwise 

warrant further investigation. 

E. What are EPA’s TSCA-Related 

Chemical Screening and Assessment 

Activities? 

TSCA authorizes EPA to gather 

chemical hazard and exposure data, as 

well as related information such as 

production volume, to determine 

whether a chemical may pose an 

unreasonable risk of injury to human 

health or the environment. The Agency 

is able to institute risk management 

actions when necessary to mitigate or 

avoid unreasonable risk. Important 

elements in a successful chemical risk 

management program include 

identifying the chemical substances, 

manufacturing sites, and exposure 

scenarios of greatest potential concern, 

and using that information to set 

priorities for more detailed risk 

assessment, further research, advisory 

notices, or other appropriate actions. To 

help fulfill its TSCA responsibilities, 

EPA has established the IUR and other 

regulations to collect information on 

commercial chemicals. 

The TSCA Inventory currently 

includes more than 76,000 chemical 

substances. Approximately 8,900 of 

these chemical substances are nonpolymer, organic chemical substances 

manufactured at at least one site in 

quantities of 10,000 lbs. or more per 

year, as reported under the 1998 IUR 

data collection. EPA estimates that 

IURA will continue to collect 

information on approximately 8,900 

chemical substances. However, the set 

of substances that will be reported 

under IURA will be somewhat different 

than the set of substances that was 

reported under the previous IUR 

collections primarily because of two 

changes: Raising the basic reporting 

threshold (see Unit II.F.2.) and adding 

reporting on the manufacture of 

inorganic chemical substances (see Unit 

II.F.1.a.). Data collected under IURA 

will enable EPA to more effectively 

conduct initial risk screening on a 

subset of the chemical substances 

within its purview, as described in the 

remaining part of this section and in 

Unit III.A.1. 

EPA conducted tiered risk evaluations 

of chemical substances even prior to the 

enactment of TSCA in 1976. A tiered 

approach allows EPA to sort through 

many chemicals, focus on those 

chemical substances of greatest concern, 

and take appropriate actions. The 

Agency is thus able to optimize 

resources while limiting overall 

regulatory burdens. The essential steps 

of the tiered risk evaluation generally 

include: An initial evaluation 

(sometimes preceded by a prescreen of 

candidate chemicals); basic risk 

management decisions resulting from 

the initial screening; more detailed risk 

assessment when appropriate; and 

resulting risk management actions, such 

as regulatory or voluntary efforts to 

reduce risk. Each of these steps is only 

as effective as the available data inputs-

-if little data exist to inform the process, 

each step suffers as a result. 

Exposure-related information 

collected through the IURA will inform 

the initial risk screening step. Initial risk 

screening is conducted using readily 

accessible information from the 

scientific literature, as well as other data 

readily available to the Agency, such as 

those provided by manufacturers and 

processors. This information set often is 

incomplete or of insufficient quality to 

allow the Agency to reach definitive 

conclusions about the set of chemicals 

under review, but may be sufficient to 

decide which chemicals appear to 

warrant further evaluation, or 

conversely, appear to be low priority 

and therefore do not currently warrant 

further review. These initial reviews are 

often more qualitative than quantitative. 

Also, continual updates to these data, 

such as the recurring reporting of 

exposure-related data under IURA, will 

ensure that the most serious concerns 

will be addressed even as chemical 

quantities and exposure potentials 

change between submission periods. 

The effectiveness of risk screening, 

risk assessment, and risk management is 

dependent upon the quality as well as 

the availability of both hazard and 

exposure information. While past 

approaches to priority setting have 

emphasized relative chemical hazards 

and used production volume as a simple 

surrogate for exposure, EPA must 

increase its emphasis on the exposure 

component of risk screening and 

assessment. EPA no longer believes that 

reporting under the current IUR is 

adequate for these purposes. The IURA 

will provide EPA with data that will 

more accurately and realistically gauge 

potential exposures. The exposurerelated information reported under 

IURA will be used in combination with 

hazard information developed under 

TSCA section 4 test rules and 

enforceable consent agreements/orders, 

through voluntary efforts such as the 

High Production Volume (HPV) 

Challenge Program (see www.epa.gov/

opptintr/chemrtk/volchall.htm), and 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 853

other sources. These more current and 

complete data from the IURA will allow 

the Agency and others to screen and 

prioritize chemicals based on potential 

risk more effectively than it is currently 

able to do. 

Although the inherent hazard 

associated with a chemical substance 

will generally remain the same over 

time, exposure of workers and affected 

populations can change significantly. If 

the amount of a chemical substance 

produced increases significantly, 

releases to the environment and human 

exposures would also be expected to 

increase. Conversely, if the amount 

produced remains constant, 

environmental releases and human 

exposures may decline as engineering 

controls are added and pollution 

prevention practices are implemented. 

Although the hazard associated with a 

chemical generally remains constant, 

the risk associated with the 

manufacturing, processing, and use of a 

chemical substance will change as 

exposure increases or changes. The 

Agency needs to be able to identify 

changes in exposures as well as specific 

exposure scenarios, making it important 

to collect exposure data on a regular 

basis. Chemicals that present low 

hazard may still pose a risk if they are 

produced in large amounts and have 

high exposure potential, are released 

into the environment at high volumes 

and/or concentrations, or involve 

exposures to particularly sensitive 

subpopulations. 

A voluntary effort called the Use and 

Exposure Information Project (UEIP) 

demonstrated that useful screening level 

exposure information is available to and 

can be reported by industry. The UEIP 

was a cooperative effort begun in the fall 

of 1992 between government and 

industry in recognition of the 

difficulties encountered in obtaining 

accurate and up-to-date exposure 

information on HPV TSCA chemicals. 

Participants included EPA, the 

Chemical Manufacturers Association 

(CMA) (now the American Chemistry 

Council, or ACC), the Chemical 

Specialty Manufacturers Association 

(CSMA), the Synthetic Organic 

Chemical Manufacturers Association 

(SOCMA), and the American Petroleum 

Institute (API) (Ref. 3). Data collected by 

EPA under the UEIP were similar to 

those now being required under IURA, 

and included the following: Production 

volume, site location, percentage of 

production volume for a given use, 

environmental releases, number of 

workers, worker activities, monitoring 

data, and industrial and consumer uses. 

EPA’s experience with UEIP has shown 

that the types of data requested by the 

UEIP are available from industry and 

can be used to prepare screening level 

exposure assessments. 

The UEIP, however, provided onetime reporting of information by a 

subset of the manufacturers of a small 

number of selected HPV chemicals. 

Given these efforts, the limitations of 

the data available from past and current 

information collections that are 

described in detail in the proposal for 

these amendments (64 FR 46772, 

August 26, 1999), and the amount of 

time it would otherwise take to acquire 

screening level exposure data for the 

chemical substances on the TSCA 

Inventory, it is appropriate to develop a 

more systematic and broadly applied 

approach to the prioritization process. 

The Agency is doing this by requiring 

that certain basic exposure-related 

information be reported under this 

amended rule instead of collecting the 

information through a one-time 

voluntary program. 

F. What Are the Requirements of IURA? 

The regulatory text of this document 

describes the specific IURA reporting 

requirements. EPA is also developing a 

guidance document with specific 

reporting instructions, and intends to 

conduct workshops to help potential 

IURA submitters become familiar with 

the revised reporting form (Form U) and 

amended reporting requirements. A 

draft version of the revised Form U is 

available in the docket, and EPA intends 

to develop an electronic version of the 

revised Form U. EPA will seek 

additional feedback on the revised 

form’s structure, format, and layout 

before finalizing it for use in 2006. 

Submitters should note that the 

information in § 710.52(c)(1) and (c)(2) 

of the regulatory text (Part I of the 

revised Form U) need only be reported 

once per reporting cycle for each 

submitter site manufacturing 25,000 lbs. 

or more of a reportable chemical, while 

the information in § 710.52(c)(3) and 

(c)(4) of the regulatory text (Parts II and 

III of the revised Form U, respectively) 

will be reported for each reportable 

chemical at a reporting site, depending 

upon the chemical’s production volume. 

1. What are the changes to the 

chemical substances covered by IUR?—

a. Inorganic chemical substances. EPA 

is requiring partial reporting for 

inorganic chemical substances for 

reporting year 2005 information 

submitted to EPA during the 2006 

submission period, and full reporting 

for inorganic chemical substances in 

subsequent submission periods (see 

§ 710.46(b)(3) of the regulatory text). 

Partial reporting means that the 

submitter must report the information 

described in § 710.52(c)(1), (c)(2), and 

(c)(3), as well as §710.58 of the 

regulatory text, as applicable (i.e., Parts 

I and II of revised Form U.). Full 

reporting means that the submitter must 

additionally report the processing and 

use information as described in 

§ 710.52(c)(4) of the regulatory text (i.e., 

all parts of revised Form U). 

EPA intends to screen potential risks 

associated with inorganic chemical 

substances to set priorities for testing, 

more detailed risk assessment and 

potential risk management. The 

phasing-in of inorganic chemical 

reporting provides manufacturers of 

these chemicals with the opportunity to 

familiarize themselves with IUR 

reporting while providing EPA and 

others with needed basic manufacturing 

information on inorganic chemicals. 

Future full reporting of exposure-related 

information will provide EPA and 

others with needed additional 

information for those inorganic 

chemicals with production volumes of 

300,000 lbs. or more at a site. See Unit 

III.A.1. for a discussion of the 

importance of this exposure-related 

information to EPA and others for both 

organic and inorganic chemicals. Unit 

III.C.1.a. contains a discussion specific 

to inorganic chemicals. The basic 

impetus for collecting information on 

organic chemicals also holds for 

inorganic chemicals. 

b. Petroleum process streams. EPA is 

exempting certain chemical substances, 

termed ‘‘petroleum process streams’’ for 

purposes of IURA, from reporting the 

processing and use data contained in 

the regulatory text at § 710.52(c)(4). For 

purposes of this rule, the petroleum 

process streams included in the 

exemption are the multi-component 

complex chemical substances listed by 

Chemical Abstracts Service (CAS) 

Registry Number in the regulatory text 

at § 710.46(b)(1). This list of chemical 

substances was derived from the 1983 

publication of the API entitled 

‘‘Petroleum Process Stream Terms 

Included in the Chemical Substances 

Inventory Under the Toxic Substances 

Control Act (TSCA)’’ (Ref. 4). Chemical 

substances listed in the API document 

consisting of a single component 

chemical, except for water, will not be 

considered petroleum process streams 

for IURA reporting purposes. Water 

(CAS number 7732–18–5) is partially 

exempt from IURA reporting under the 

petroleum process stream exemption. 

The basis for this exemption is not 

because these streams are of known low 

toxicity. EPA believes that the 

chemicals termed ‘‘petroleum process 

streams’’ for purposes of IURA are often 

toxicologically active. However, these 

854 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

chemicals are frequently processed at 

the site where they are produced in 

vessels which are designed to minimize 

losses and, coincidentally, the potential 

for releases and exposure. In many 

cases, the flammable nature of these 

products requires that they also be 

transported, processed, and stored in 

well controlled vessels. For these 

reasons, EPA believes worker exposure 

to the chemicals termed ‘‘petroleum 

process streams’’ for purposes of IURA 

is diminished and thus full IURA 

exposure-related reporting is not 

warranted at this time. Partial IURA 

reporting includes site location and 

production volume information which 

have important uses by EPA and others 

apart from gauging exposures and risk 

screening. EPA may take action to 

revoke this exemption if circumstances 

warrant. 

In the final rule, EPA is making 

selected changes to the partial 

exemption list of petroleum process 

stream chemicals published in the 

proposed rule. Certain chemicals are 

being added to the list because they 

were inadvertently left off the proposed 

list covered by the exemption. These 

multi–component chemicals, all of 

which are listed in the 1983 API 

publication (Ref. 4), include the 

following chemical substances (CAS 

numbers): 8052–41–3, 64742–21–8, 

64742–26–3, 64742–94–5, 68476–32–4, 

68515–29–7, 68783–12–0, 68918–98–9, 

68919– 15–3, 68953–80–0, and 70693–

06–0. 

In the final rule, EPA is also removing 

a number of chemicals from the 

petroleum process stream partial 

exemption list published in the 

proposed rule. These chemicals fall into 

three groups: 

(1) Certain chemicals that are already 

part of the broader natural gas or 

polymer exemptions. Those already 

exempted under the natural gas 

exemption are: 8006–14–2, 8006–61–9, 

64741–48–6, 68410–63–9, 68425–31–0, 

and 68919–39–1. Additionally, an 

incorrect CAS number 68425–31–1 was 

corrected to read 68425–31–0, which, 

again, has been removed from the 

partial exemption because it is already 

fully exempt from IUR reporting under 

the natural gas exemption. Chemicals 

removed because they are already fully 

exempt under the polymer exemption 

are: 64741–71–5, 64741–72–6, 67891–

77–4, 67891–78–5, 68131–77–1, 68131–

79–3, 68131–80–6, 68131–81–7, 68131–

83–9, 68131–99–7, 68132–00–3, 68410–

01–5, 68410–10–6, 68410–13–9, 68410–

14–0, 68410–16–2, 68410–59–3, 68425–

27–4, 68425–28–5, 68476–87–9, 68477–

37–2, 68477–43–0, 68477–45–2, 68477–

46–3, 68477–50–9, 68477–51–0, 68477–

52–1, 68478–07–9, 68478–09–1, 68527–

24–2, 68527–25–3, 68783–10–8, 68783–

11–9, and 68955–30–6. 

(2) Single component chemicals, 

except for water, should not have been 

included in the petroleum process 

streams partial exemption. As stated in 

the proposed rule, the exemption was 

intended to include only certain multi–

component chemicals derived from the 

1983 API publication (Ref. 4). As a 

result, the following single–component 

chemicals have been removed from the 

petroleum process streams partial 

exemption list as proposed: 8007–45–2 

and 10024–97–2. 

(3) Certain chemicals that are not 

included on the TSCA Inventory and 

therefore are not currently reportable 

under IUR have also been removed from 

the exemption list: 64741–93–1, 64741–

94–2, 64742–00– 3, 64742–02–5, 64742–

17–2, 64742–66–1, 64742–74–1, 64742–

84–3, and 64754–96–7. 

In this final rule, EPA is also making 

some additional corrections to the 

petroleum process streams partial 

exemption list published in the 

proposed rule. 

(1) Incorrect CAS numbers for certain 

chemicals were provided in the 

proposed rule. These CAS numbers 

were incorrect because of typographical 

errors in the proposed rule. The correct 

CAS numbers (incorrect CAS numbers 

are in parentheses) are as follows: 8006–

20–0 (8006–20–2), 64742–18–3 (64742–

18–2), 64742–20–7 (64742–20–3), 

68187–60–0 (68187–60–9), 68459–78–9 

(68459–79–8), 68513–14–4 (68514–14–

4), 68513–19–9 (68512–19–9), and 

68514–38–5 (68514–38–4). Two 

additional incorrect CAS numbers were 

provided in the proposed rule, i.e., 

64742–36–2 and 68741–41–9. The 

corrected CAS numbers for these 

chemicals, i.e., 64742–36–5 and 64741–

41–9 respectively, were also provided in 

the proposed rule. 

(2) Several duplicate CAS numbers 

that were included in the proposed rule 

have been removed. 

(3) CAS numbers for certain 

chemicals have been superceded by new 

CAS numbers. The new CAS numbers 

are as follows (superceded CAS 

numbers are in parenthesis): 68187–58–

6 (68334–31–6), 68410–13–9 (68477–

56–5), 68308–08–7 (68478–21–7), 

68334–30–5 (68512–90–3), 68918–99–0 

(68513–26–8), 64742–83–2 (6851–30–7), 

68988–79–4 (68515–31–1), 64742–93–4 

(68516–21–2), 68606–10–0 (68606–35–

9), and 64742–93–4 (68650–78–2). 

c. Natural gas. EPA is exempting 

certain forms of natural gas from IUR 

reporting. These substances are listed in 

the regulatory text at § 710.46(a)(4). EPA 

believes that, to date, adequate IUR 

information has been collected on these 

chemical substances to fulfill EPA’s and 

other IUR information users’ current 

needs. EPA will take action to revoke 

this exemption if circumstances warrant 

in the future. 

d. Specific chemical substances. EPA 

is exempting certain specific chemical 

substances for which EPA has 

determined that there is a low current 

interest in the IURA processing and use 

information from reporting the 

processing and use information 

contained in the regulatory text at 

§ 710.52(c)(4). These chemicals are still 

subject to the other requirements of 

IURA. The chemical substances 

included in this partial exemption are 

listed by CAS Number in the regulatory 

text at § 710.46(b)(2)(iv). EPA is also 

establishing a process for revising the 

list of exempted chemical substances 

over time. 

EPA is establishing this partial 

exemption in an effort to improve 

IURA’s efficiency and effectiveness. 

This partial exemption also provides 

additional benefits in reducing the 

potential reporting burden of IURA for 

certain manufacturers of these 

chemicals, and provides an efficient 

process for amending the partial 

exemption list as the need for 

processing and use information under 

IURA changes over time. The inclusion 

of a chemical substance under this 

partial exemption is not based on the 

potential risks of a chemical. This 

partial exemption is solely intended to 

provide a tool to assist the Agency in 

better managing the collection of 

processing and use information under 

IURA. 

In the proposed rule, EPA specifically 

sought comment on a partial reporting 

exemption for ‘‘low priority’’ chemicals, 

and requested comment on the criteria 

the Agency might use to establish such 

an exemption, as well as the specific 

chemicals that might qualify for such an 

exemption. (See Unit IX.3. of the 

preamble to the proposal, at 64 FR 

46794). EPA also offered several 

approaches for identifying the 

chemicals that could be considered for 

such an exemption. A number of 

commenters supported the creation of a 

partial exemption, and several provided 

suggestions for additional chemical 

substances or classes of substances that 

they wanted EPA to consider including 

in this or an expanded partial 

exemption. 

In response to the comments received, 

EPA has established a partial exemption 

that applies when EPA has determined 

that there is a low current interest in the 

chemical’s IURA processing and use 

information. Because IURA reporting is 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 855

chemical-specific, this exemption 

applies to the specific chemical 

substances that are listed within the 

exemption, which are discussed in more 

detail below. The need for EPA’s 

collection of IURA processing and use 

information related to a particular 

chemical substance can change over 

time; therefore, EPA has also established 

a process that will allow EPA to revise 

the list by adding or removing a 

chemical to reflect the change in 

interest. The process allows anyone to 

submit a written request for EPA to 

consider revising the list of chemical 

substances covered under this partial 

exemption. EPA may also revise the list 

on its own initiative. When a list 

revision is necessary, EPA’s preferred 

approach will be to issue a direct final 

rule, which affords an opportunity for 

public comment, while providing an 

efficient mechanism for revising the list. 

In determining whether there is low 

current interest in IURA processing and 

use information related to a specific 

chemical substance, EPA will look to 

the specific circumstances surrounding 

the chemical in question, and may use 

one or more of the considerations 

identified below, and/or considerations 

not identified below, to make an 

informed decision. EPA will consider 

the totality of information available for 

the chemical substance, including but 

not limited to the following: 

(A) Whether the chemical qualifies or 

has qualified in past IUR collections for 

the reporting of the information 

described in § 710.52(c)(4) (i.e., at least 

one site manufactures 300,000 pounds 

or more of the chemical). 

(B) The chemical substance’s 

chemical and physical properties or 

potential for persistence, 

bioaccumulation, health effects, or 

environmental effects (considered 

independently or together). 

(C) The information needs of EPA, 

other federal agencies, tribes, states, and 

local governments, as well as members 

of the public. 

(D) The availability of other 

complementary risk screening 

information. 

(E) The availability of comparable 

processing and use information. 

(F) Whether the potential risks of the 

chemical substance are adequately 

managed by EPA or another agency or 

authority. 

It is important to note that the inclusion 

of these chemical substances under this 

partial exemption is not based on the 

potential risks of the chemicals, but is 

based on the Agency’s current 

assessment of the need for collecting 

IURA processing and use information. 

Additionally, some of these chemicals 

have issues that may renew interest in 

them in the future, at which time EPA 

will reconsider the applicability of this 

partial exemption for those chemicals. 

To create an initial list of specific 

chemical substances covered by this 

partial exemption, EPA started with: 

(1) The list of chemical substances 

identified as part of the HPV Challenge 

Program for which, based upon a 

preliminary review of known hazard 

information, it was determined that the 

SIDS data set would not further our 

understanding of the chemical’s 

properties. 

(2) The list of the chemical substances 

that the European Union (EU) exempted 

from its reporting requirements for 

existing chemical substances. 

(3) Certain other chemicals identified 

during the Executive Order 12866 

interagency review, for which EPA was 

able to quickly determine, based on a 

review of their chemical structures, 

properties, existing hazard information, 

and available exposure information, that 

IURA processing and use information is 

of low current interest. 

This list was then adjusted based 

upon the totality of information 

available to EPA during the Executive 

Order 12866 interagency review period 

to ensure that the chemicals included in 

this partial exemption were those for 

which EPA determined that IURA 

processing and use information is of low 

current interest. EPA chose these 

chemicals because almost all previously 

underwent a review to have gotten on 

these lists and, considering the time 

available during the Executive Order 

12866 interagency review, the Agency 

was able to utilize these lists, along with 

the Agency’s current knowledge and 

understanding of the individual 

chemical’s structure, properties, 

indications of hazards and potential 

exposures, to inform its determination 

that there is a low current interest in 

IURA processing and use information 

for these specific chemicals (Ref. 5). As 

indicated previously, EPA has 

established a process for revising the list 

of chemicals covered by this partial 

exemption, and intends to reconsider 

the chemicals identified in comments 

for applicability under this partial 

exemption. 

The list currently consists of the 

following chemicals: 

(1) Chemicals for which it had been 

determined that the SIDS data set would 

not further our understanding of the 

chemical’s properties, and not otherwise 

sponsored under the HPV Challenge 

Program: 50–70–4, 50–99–7, 56–87–1, 

57–50–1, 59–02–9, 69–65–8, 124–38–9, 

142–47–2, 1592–23–0, 7440–44–0, 

8001–21–6, 8001–22–7, 8001–26–1, 

8001–29–4, 8001–30–7, 8001–31–8, 

8001–78–3, 8001–79–4, 8002–03–7, 

8002–75–3, 8006–54–0, 8016–28–2, 

8016–70–4, 8021–99–6, 8029–43–4, 

9050–36–6, 16291–96–6, 61789–97–7, 

61789–99–9, 64147–40–6, 64755–01–7, 

65996–63–6, 65996–64–7, 68188–81–8, 

68334– 00–9, 68334–28–1, 68409–76–7, 

68425–17–2, 68439–86–1, 68476–78–8, 

68514–27–2, 68514–74–9, 68525–87–1, 

68918–42–3, 68952–94–3, 68989–98–0, 

and 73138–67–7. 

(2) Chemicals from the EU Existing 

Chemicals Program exempted list that 

are not currently otherwise a part of 

another Agency program such as the 

HPV Challenge Program: 50–81–7, 58–

95–7, 59–51–8, 87–79–6, 123–94–4, 

137–08–6, 150–30–1, 1317–65–3, 7440–

37–1, 7727–37–9, 7782–42–5, 8001–23–

8, 8002–13–9, 8002–43–5, 9004–53–9, 

9005–25–8, 11103–57–4, 26836–47–5, 

61789–44–4, 67701–01–3, 68002–85–7, 

68131–37–3, 68308–54–3, 68424–45–3, 

and 68424–61–3. 

(3) Chemicals otherwise identified by 

EPA based on consideration of the 

chemical’s structure, properties, existing 

hazard information, and available 

information concerning the extent of 

exposure, and which are not currently a 

part of another Agency program such as 

the HPV Challenge Program: 1333–74–0, 

7782–44–7, 68442–69–3, 68648–86–2, 

68648–87–3, 129813–58–7, 129813–59–

8 and 129813–60–1. 

You may use the process established 

in § 710.46(b)(2) to submit a request for 

the Agency to consider other chemical 

substances for inclusion under this 

partial exemption. Please ensure that 

you provide sufficient information in 

your requests to enable EPA to make the 

necessary determination after 

considering the totality of available 

information. If you have any questions 

about this process, please contact the 

technical person listed under FOR

FURTHER INFORMATION CONTACT for 

additional assistance. 

Under the list revision process, EPA 

will provide a written response to 

requests within 120 days of receipt, and 

will maintain copies of these responses 

in a public docket that will be 

established for each reporting cycle. In 

order to assist the Agency in completing 

any necessary revision to the list before 

the reporting period, any request for 

revising the list of chemicals under this 

partial exemption must be received by 

the Agency no later than January 1 of 

the year before the reporting period in 

question (i.e.,12 months prior to the 

reporting period). For example, any 

request for inclusion under this partial 

exemption must be submitted to EPA no 

later than January 1, 2004, i.e., 12 

months prior to the next reporting 

856 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

period, which begins on January 1, 

2005, for the 2006 submission period. If 

the request is submitted after this date, 

during an actual reporting period, or 

during the submission period, EPA is 

less likely to have sufficient time to 

complete its evaluation and make a 

determination, or issue the necessary 

rulemaking such that the decision can 

be effective for that submission period. 

Submitters should check the Federal 

Register for list revisions or may check 

the electronic CFR to identify what 

chemicals are on the partial exemption 

list prior to each reporting period. 

EPA intends to develop a standard 

operating procedure (SOP) for this 

specific chemical partial exemption 

process, which will outline the process 

steps, as well as provide guidance to 

EPA personnel on making such 

determinations. EPA would like to seek 

your input during the development of 

this SOP, as well as feedback on the 

implementation of this process, as part 

of IURA implementation workshops that 

are planned. 

One of the purposes of the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., can be achieved through federal 

agencies working together with the 

affected industries to design surveys 

that will achieve multiple purposes 

with a single survey instrument. EPA 

plans to identify and initiate dialogue 

that has the potential for generating 

additional paperwork burden reductions 

for the IURA. For example, the current 

USGS annual survey covers 

approximately 80 minerals, and 

accounts for at least 75% of the 

industrial production and 75% of the 

facilities included in the USGS survey. 

If you have identified other federal 

agency information collections that 

could satisfy the IURA purposes, or for 

which IURA information might serve as 

a viable substitute and have the 

potential to generate federal paperwork 

burden reductions, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Under the PRA, an agency may not 

conduct or sponsor, and a person is not 

required to respond to a collection of 

information, unless the agency has 

obtained approval for the activity from 

the Office of Management and Budget 

(OMB), an approval which must be 

renewed every 3 years. As part of the 

PRA approval renewal process, which 

includes an opportunity for public 

review and comment prior to OMB 

review, EPA intends to continue to 

evaluate this exemption process and 

will provide information about the 

chemicals evaluated, requests received, 

decisions made and related process 

elements and experiences as part of the 

information collection request (ICR) 

submitted to OMB. The Agency will 

also analyze the information collected 

from one reporting year to the next, in 

order to ensure that IURA information 

collection activities continue to meet 

the requirements of the PRA, including 

the demonstration of practical utility. 

e. Polymers. As a result of recent 

inquiries regarding the exemption of 

polymers from IUR reporting, EPA is 

clarifying this existing exemption. The 

exemption does not apply to a 

polymeric substance that has been 

hydrolyzed, depolymerized, or 

otherwise chemically modified, except 

in cases where the intended product of 

this reaction is totally polymeric in 

structure. The Agency’s intent under the 

exemption at 40 CFR 710.26(b) has 

always been (and continues to be under 

40 CFR 710.46(a)(1)) that the products of 

such reactions carried out on polymeric 

materials are excluded from IUR 

reporting only if they are intended to 

have a totally polymeric composition. 

There is no change in the IUR status of 

polymeric materials that have not 

undergone such reactions and are 

flagged in the TSCA Inventory. 

f. Microorganisms. EPA is clarifying 

this existing definition to ensure that 

the definition used for IURA purposes is 

consistent with the microorganisms rule 

at 40 CFR part 725 and to clarify the 

status of chemicals produced from 

living microorganisms. 

2. How have the reporting thresholds 

changed? EPA is raising the basic IUR 

reporting threshold from a production 

volume of 10,000 lbs. per year per site 

to 25,000 lbs. per year per site. Every 

person manufacturing a non–excluded 

chemical substance at or above the 

threshold will be required to report the 

information in Parts I and II of the 

revised Form U (see the regulatory text 

at §§ 710.52(c)(1), (c)(2), and (c)(3) and 

710.58). The increased IUR reporting 

threshold makes the IUR and Toxics 

Release Inventory (TRI) reporting 

thresholds equivalent for manufacturers. 

These thresholds also approximate the 

current TSCA section 5 premanufacture 

notification (PMN) low volume 

exemption threshold of 10,000 kg 

(approximately 22,000 lbs.). EPA is 

raising the basic IUR reporting threshold 

in order to reduce the number of reports 

filed, thus reducing the overall industry 

burden associated with this regulation. 

The new reporting threshold does not 

represent a finding of low exposure or 

low risk. 

EPA is also instituting a second, 

higher production volume threshold of 

300,000 lbs. per year per site. Persons 

who manufacture a reportable chemical 

substance at or above this level will be 

required to report the information in 

Part III of the revised Form U (see 

§ 710.52(c)(4) of the regulatory text) in 

addition to the information in Parts I 

and II of the revised Form U. The 

information reported on Part III of the 

form relates to the processing and use of 

chemical substances. EPA is instituting 

this separate threshold to limit 

processing and use data reporting to a 

subset of a few thousand IUR reportable 

chemicals out of the approximately 

76,000 chemicals listed on the TSCA 

Inventory. 

Information concerning lower 

production volume chemical substances 

is valuable, especially for identifying 

trends and additional substitute 

chemicals. However, wherever possible, 

the Agency has attempted to limit the 

reporting burden. In the future, EPA 

may find it necessary to collect 

information on chemicals at reporting 

thresholds below the thresholds 

introduced in this action. Although both 

the 25,000 lbs. and 300,000 lbs. 

thresholds are significantly higher than 

the current IUR 10,000 lbs. threshold, 

the enhanced information that will be 

gathered under the amended rule will 

enable the Agency and others to more 

efficiently identify those chemical 

substances warranting further, more in–

depth review, as well as chemicals of 

lesser concern (see Ref. 6). 

3. Have the reporting year, the 

submission period, or the reporting 

frequency changed? In order to provide 

clarification, two new definitions are 

being added at 40 CFR 710.43: 

‘‘reporting year’’ means the calendar 

year in which information to be 

reported to EPA during a submission 

period is generated and ‘‘submission 

period’’ means the period in which the 

information generated during the 

reporting year is submitted to EPA. 

‘‘Submission period’’ replaces the term 

‘‘reporting period,’’ as used under the 

current IUR regulations at 40 CFR part 

710. 

As proposed, EPA is changing the IUR 

reporting year to a calendar year basis 

from a corporate fiscal year basis. This 

change standardizes reporting time 

frames across IUR submitters and across 

various other reporting programs, such 

as the TRI program. 

Under the current IUR regulations at 

40 CFR 710.33(b), submitters are 

required to report on a recurring basis 

during a 120–day period from August to 

December (the ‘‘submission period’’

under IURA) every 4 years. In a separate 

action following this final rule, EPA 

intends to change the submission period 

to occur earlier in the year, for example 

from January 1 through May 1. This 

potential change is related in part to the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 857

reporting year change in this final rule 

from fiscal year to calendar year. The 

August to December submission period 

was originally used because many 

companies’ fiscal years end in July, and 

starting the IUR submission period in 

late August allowed these companies to 

report their most current information. 

Companies will now report on a 

calendar year basis, making an earlier 

submission period more appropriate. 

Changing the submission period to 

occur earlier in the year would allow 

sites to submit their information closer 

to the period during which it was 

generated, as well as allow the Agency 

to obtain the information early in the 

year, thereby increasing the timeliness 

of the availability of the data. 

In this final rule, EPA has not 

changed the reporting frequency (every 

4 years), although EPA did consider 

alternative reporting frequencies (see 

the ‘‘Revised Economic Analysis for the 

Amended Inventory Update Rule,’’ Ref. 

7). This means that the first reporting 

year for IURA information will be 4 

years after the reporting year under the 

existing IUR, i.e., existing IUR reporting 

year is 2001, so the first reporting year 

under IURA will be 2005. The 

submission period will continue to 

occur in the year following the reporting 

year, i.e., existing IUR submission 

period is in 2002, so the first submission 

period for IURA will be in 2006. 

The final rule indicates that 

subsequent reporting years and 

submission periods will occur every 4 

years. In a separate action following this 

final rule, however, EPA intends to 

change the reporting frequency after the 

first reporting year under IURA (i.e., 

2005, with submission to EPA in 2006) 

from every 4 years to every 5 years. This 

would mean that, instead of occurring 

in 2009, the second reporting year under 

IURA would be 2010 (i.e., 5 years after 

2005), and would then occur every 5 

years thereafter. The submission period 

would continue to occur in the year 

following the reporting year, so it too 

would occur every 5 years (i.e., 2011, 

2016, etc.). In making this change, EPA 

also intends to change the 

recordkeeping period from 5 years to 6 

years. EPA agreed to make these 

changes within the next 12 months as 

part of the interagency review under 

Executive Order 12866 in an effort to 

further reduce the potential reporting 

burden related to IURA. EPA estimates 

that a 5–year frequency would save 

regulated entities about $50 million over 

20 years at a 3% discount rate (about a 

16% reduction), and $37 million over 

20 years at a 7% discount rate, and 

would still meet EPA’s most critical 

data needs (Ref. 8). 

For the first reporting year under 

IURA, EPA intends to issue guidance 

and conduct workshops to help the 

regulated community become 

familiarized with the revised 

regulations. A draft copy of the 

guidance for the 2006 submission 

period can be found in the docket for 

this rulemaking (Ref. 9). 

4. How have the recordkeeping 

requirements changed? EPA is requiring 

that persons subject to reporting under 

IURA retain records that document any 

information reported to EPA under 

IURA for a period of 5 years beginning 

with the effective date of that 

submission period (see § 710.57 of the 

regulatory text). The effective date of the 

submission period is the last day of the 

submission period (currently December 

23, although EPA intends to change this 

date, see Unit II.F.3.) in a year in which 

data must be submitted to EPA under 

IURA. Previously, submitters were 

required to retain records for 4 years 

(see 40 CFR 710.37). Under IURA, if a 

person submits a report in the year 

2006, that person will retain the records 

on which the report is based until 

December 23, 2011. This change ensures 

that the submitter will have the 

previous submission available when 

determining future reporting. The 

change will also aid in EPA’s 

enforcement of IUR by requiring that 

submitters maintain records that span 

successive submission periods. As 

described in Unit II.F.3., in a separate 

action EPA intends to change the 

reporting frequency from every 4 years 

to every 5 years. In that action, EPA also 

intends to change the recordkeeping 

period from 5 years to 6 years in order 

to continue to span successive 

submission periods. A 6–year 

recordkeeping period would require, 

under IURA, that if a person submits a 

report in the year 2006, that person will 

retain the records on which the report 

is based until December 23, 2012. 

Persons who are not required to report 

under the existing IUR because they 

manufacture less than the 10,000 lb. 

reporting threshold have been required 

to retain volume records as evidence to 

support decisions not to submit a report. 

In this rulemaking, EPA is eliminating 

this provision because EPA believes that 

this type of information is routinely 

retained by companies in the normal 

course of business. 

5. How have the data elements 

reported by all submitters changed? The 

new and revised data elements to be 

reported under the amended rule are 

discussed in this section. Data elements 

that are currently reported under IUR 

but that are not revised by these 

amendments are not generally discussed 

in this document. 

a. Technical contact identification 

(§ 710.52(c)(2)(i) of the regulatory text). 

In addition to the name of a person who 

will serve as technical contact for the 

submitter company, the parent company 

name, the contact person’s full mailing 

address, and the contact person’s 

telephone number, submitters must 

report the contact person’s e–mail 

address and the parent company Dun 

and Bradstreet Number. The technical 

contact person must be able to answer 

questions about the information on the 

revised Form U that is submitted by the 

company to EPA. 

b. Plant site identification 

(§ 710.52(c)(2)(ii) of the regulatory text). 

Submitters must report the plant site 

county or parish in addition to the 

information currently required for each 

plant site that is subject to reporting. 

EPA had additionally proposed to 

require submitters to report a plant site 

identification number in order to clearly 

identify the reporting site in a way that 

would allow the cross–linking of IUR 

information with information reported 

about the same plant site contained in 

other data bases. EPA specifically 

proposed requiring the reporting of a 

newly assigned Facility Registration 

Identifier (FRI), or, if the Facility 

Registry System were not yet in place in 

time for the publication of this final 

rule, the submitter would report the 

site’s RCRA number, if one has been 

assigned to the site. In this final rule, 

EPA has decided not to require the 

submission of a site identification 

number in addition to the Dun and 

Bradstreet number that submitters must 

continue to report. The Agency may 

instead make number assignments 

either directly on the reporting form 

after it is submitted to EPA, or prior to 

mailing out the form at the beginning of 

a submission period. Submitters will 

not be responsible for obtaining or 

reporting this number. 

c. Chemical identification 

(§ 710.52(c)(3)(i) of the regulatory text). 

Submitters must indicate which type of 

chemical identifying number they are 

reporting, in addition to the number 

itself. EPA no longer allows the use of 

certain of the previously used substitute 

identifying numbers (such as EPA–

assigned numbers for Test Market 

Exemption Applications, original TSCA 

Inventory form numbers, and numbers 

associated with Notices of Bona Fide

Intent to Manufacture) because they are 

difficult to cross–reference to CAS 

Registry numbers. Submitters must 

report a CAS Registry number, or, if a 

CAS Registry Number is not known to 

the submitter, the submitter must report 

858 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

either an EPA–designated accession 

number for confidential substances or a 

PMN case number. 

d. Confidentiality of production 

volume range (§ 710.52(c)(3)(v) of the 

regulatory text). Submitters must 

continue to report the specific 

production volume of the reportable 

chemical and may claim CBI protection 

for that production volume. 

Additionally, submitters may claim as 

CBI a pre–determined production 

volume range corresponding to the 

reported production volume number. 

This claim, if needed, would be separate 

from a CBI claim for the specific 

production volume. 

Submitters of specific CBI production 

volume data may allow the release of 

more general range information. EPA 

expects that roughly 50% of submitters 

of specific CBI production volume data 

will allow the public release of volume 

ranges. This expectation of reduced CBI 

claims is based on the CBI claim 

statistics associated with the 

development of the original TSCA 

Inventory (See ‘‘Inventory Update Rule 

(IUR) Technical Support Document: 

Evaluation of Likelihood of Confidential 

Business Information Claims for 

Production Volume Information’’ (Ref. 

10)) as well as comments received from 

industry concerning potential TSCA CBI 

reforms (Ref. 11). The range option will 

allow the public greater access to data 

on chemical production volumes, and 

the Agency will be better equipped to 

publicly release more aggregate 

production volume data relevant to its 

risk screening and other decisions. 

The production volume ranges in the 

final rule are 25,000 to 300,000 lbs.; 

300,000 to 1,000,000 lbs.; 1,000,000 to 

10,000,000 lbs.; 10,000,000 to 

50,000,000 lbs.; 50,000,000 to 

100,000,000 lbs.; 100,000,000 to 

500,000,000 lbs.; 500,000,000 to 

1,000,000,000 lbs.; and greater than 

1,000,000,000 lbs. per year. These 

ranges are similar to those first used in 

the development of the original TSCA 

Inventory, except for one change, i.e., 

the lowest range starts at the IURA 

reporting threshold of 25,000 lbs. rather 

than the 10,000 lb. threshold that was 

used in the current IUR. EPA 

additionally made one change to the 

ranges included in the proposed rule, 

i.e, the upper end of the first range and 

the lower end of the second range were 

raised to 300,000 lbs. from the 100,000 

lbs. range limit included in the 

proposal, resulting in ranges of 25,000 –

300,000 lbs. and 300,000 – 1,000,000 

lbs. This change makes the ranges 

consistent with the second reporting 

threshold of 300,000 lbs. or more (see 

§ 710.52(c)(4) of the regulatory text), and 

provides additional protection for 

submitters’ production volume range 

CBI claims. 

Under the proposed rule’s 100,000 

lbs. range limit for the lowest 

production volume range, submitters 

who did not claim the production 

volume range as CBI might have 

inadvertently provided the public with 

more information than they intended. 

For instance, for a submitter whose 

production volume was in the 100,000 

to 1,000,000 lbs. range, who did not 

claim their production volume range 

CBI, and who did not report any 

information in Part III of reporting Form 

U (the industrial processing and use and 

the commercial and consumer use 

information), public users of the data 

would be able to infer that the 

submitter’s production was somewhere 

between 100,000 to 300,000 lbs. per year 

– information which the submitter 

might have considered CBI. To protect 

against such inadvertent disclosures of 

CBI, EPA changed the production 

volume ranges to reflect the second 

reporting threshold of 300,000 lbs. EPA 

does not believe that the change 

significantly affects the utility of the 

data to the public. 

e. Number of potentially exposed 

workers (§ 710.52(c)(3)(vi) of the 

regulatory text). Submitters must report 

the range code that corresponds to their 

estimate of the total number of workers 

reasonably likely to be exposed to each 

reportable chemical substance at each 

plant site. EPA defines ‘‘reasonably 

likely to be exposed’’ as an exposure to 

a chemical substance which, under 

foreseeable conditions of manufacture, 

processing, distribution in commerce, or 

use of the chemical substance, is more 

likely to occur than to not occur. Such 

exposures would normally include, but 

not be limited to, exposure during 

activities such as charging reactor 

vessels; drumming; bulk loading; 

cleaning equipment; maintenance 

operations; materials handling and 

transfers; and analytical operations. 

Covered exposures include exposures 

through any route of entry (inhalation, 

ingestion, skin contact or absorption, 

etc.), but exclude accidental or 

theoretical exposures. 

Workers involved in chemical 

manufacturing, processing, and use are 

a subpopulation of concern to EPA, the 

Occupational Safety and Health 

Administration (OSHA) (Ref. 12), the 

National Institute of Occupational 

Safety and Health (NIOSH) (Ref. 13), 

and other organizations (e.g., labor 

unions). Workers may often be exposed 

to chemical substances in higher doses 

and with greater frequency than the 

general population, and may therefore 

be at potentially greater risk of adverse 

health effects. The number of workers 

reasonably likely to be exposed to 

specific chemical substances is 

important to EPA and other 

organizations in developing screening 

level exposure scenarios. These 

scenarios are then used to develop 

priorities for testing, more detailed risk 

assessment, and risk management. 

Under IURA, submitters are required 

to use ranges rather than specific values 

for reporting certain data, including the 

number of workers reasonably likely to 

be exposed and the number of 

processing or use sites. The ranges for 

reporting the estimated number of 

potentially exposed workers are found 

in § 710.52(c)(3)(vi) of the regulatory 

text. In general, reporting these ranges 

reduces the potential burden to 

submitters of developing a precise point 

estimate for the data element. The use 

of ranges should additionally result in 

fewer CBI claims than if precise point 

estimates were provided because ranges 

tend to reveal less sensitive information 

than specific estimates while still 

conveying sufficient information useful 

to effectively screen chemical risks. 

Submitters are permitted to claim the 

reported ranges as confidential if 

revealing even this general information 

would disclose information of a 

sensitive nature. 

f. Maximum concentration 

(§ 710.52(c)(3)(vii) of the regulatory 

text). Submitters must report the 

maximum concentration, measured by 

weight, of the reportable chemical 

substance at the time it leaves the 

submitter’s manufacturing site or, if it is 

a site-limited chemical, at the time it is 

reacted on-site to produce a different 

chemical substance. This information is 

to be reported regardless of the various 

physical forms in which the chemical 

may be sent off-site or reacted on–site. 

Concentration ranges for use in 

reporting are found in § 710.52(c)(3)(vii) 

of the regulatory text. 

Concentration is an important 

variable to consider when estimating the 

magnitude of potential exposures. 

Information about the maximum 

concentration of a chemical substance 

present at processing and use sites is 

frequently used in chemical risk 

screening in the review of PMNs for 

new chemical substances required by 

section 5 of TSCA and is used to the 

extent it is available in screening 

chemicals on the TSCA Inventory. For 

example, EPA has developed standard 

methods to estimate dermal exposures 

that workers may experience while 

performing common industrial 

operations such as sampling and 

loading chemicals into drums. These 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 859

standard methods use maximum 

concentration information to estimate 

upper limits to exposure estimates. If 

EPA is aware that a chemical substance 

is processed or used only as a fraction 

of a mixture with other chemical 

substances, exposure estimates may be 

adjusted downward accordingly. For 

example, a chemical substance which is 

a component of a liquid mixture exerts 

a lower vapor pressure than it would as 

a pure chemical substance. Because 

higher vapor pressure is associated with 

increasing inhalation exposure to a 

chemical substance, the concentration 

of a chemical substance in a liquid 

mixture impacts the exposure 

assessment. 

A chemical may be produced in 

multiple physical forms and in multiple 

formulations and products. As 

described in Unit II.F.5.g., EPA is 

requiring reporting of each of the 

physical forms in which a chemical is 

sent off–site. For the purpose of 

exposure screening, EPA is requiring 

only the reporting of the maximum 

concentration, regardless of the various 

physical forms in which a chemical may 

be sent off-site. 

EPA had proposed that submitters 

also report the average concentration of 

the chemical when leaving the 

manufacturing site (at 64 FR 46788). 

EPA is not promulgating this 

requirement because of the potential 

difficulty of determining the average 

concentration. For example, a submitter 

could produce many formulations 

containing a particular chemical 

substance, making a determination of 

average concentration difficult. 

g. Physical form (§ 710.52(c)(3)(viii) of 

the regulatory text). Submitters must 

report the physical form(s) of the 

chemical at the time it leaves the site of 

manufacture or, if the chemical is sitelimited, at the time it is reacted on site 

to produce a different chemical 

substance. The list of physical forms 

from which submitters must select is 

found in § 710.52(c)(3)(viii) of the 

regulatory text. Further discussion on 

physical form reporting is found in Unit 

III.B.1.a. 

The physical form of a chemical is an 

important factor to consider when 

estimating magnitudes and 

concentrations of potential exposures. 

EPA’s analyses of TRI and PMN data 

demonstrated that the physical state of 

a chemical is a determining factor in 

predicting the potential for industrial 

releases of chemicals, and hence, 

exposures to humans and the 

environment. The results of the analyses 

are provided in a technical support 

document that was developed by EPA in 

support of this rule (‘‘Inventory Update 

Rule (IUR) Amendments Technical 

Support Document: Exposure-Related 

Data Useful for Chemical Risk 

Screening,’’ Ref. 14). The physical state, 

which provides information on 

volatility and how the chemical is likely 

to be handled during manufacturing, 

processing, and use, is an important 

data element for the purpose of 

exposure and risk screening. 

h. Percent production volume 

(§ 710.52(c)(3)(ix) of the regulatory text). 

Submitters are required to report the 

percentage of total production volume 

(as reported under regulatory text 

§ 710.52(c)(3)(iv)) of the reportable 

chemical substance that is associated 

with each physical form reported. 

Percent production volume estimates 

will allow the Agency to aggregate, on 

a case-by-case basis, the production 

volume of a particular physical form for 

a given chemical across multiple sites. 

These determinations will allow EPA to 

better characterize the risk associated 

with chemicals that are manufactured in 

physical forms that typically result in 

higher exposures, such as volatile 

liquids or powders, but that are 

produced in small quantities. These 

percent production volume estimates 

will help put the physical form 

information into context. Estimates 

must be rounded off to the nearest 10% 

of production volume. 

6. What new definitions have been 

added to explain or reworded to clarify 

the reporting requirements? EPA has 

reorganized the definition section of the 

regulatory text associated with the 

original Inventory and IUR. There are 

now three definition sections. The 

existing § 710.2 contains definitions 

relevant primarily to the compilation of 

the original Inventory, although a few of 

these definitions are also relevant to 

both IUR and IURA. EPA has recodified 

these general definitions in § 710.3. 

Definitions relevant only to IUR, which 

were originally in § 710.2, are now in 

§ 710.23. Section 710.43 contains 

definitions relevant only to IURA. This 

reorganization clarifies the relationships 

between the definitions and the various 

rules, and has no substantive effect. 

Two existing definitions are being 

clarified (§ 710.3 of the regulatory text). 

EPA defines ‘‘manufacture’’ to mean to 

manufacture, produce, or import for 

commercial purposes and ‘‘manufacture 

or import ‘for commercial purposes’’’ to 

mean to manufacture, produce, or 

import with the purpose of obtaining an 

immediate or eventual commercial 

advantage, and includes, for example, 

the manufacture or import of any 

amount of a chemical substance or 

mixture: (1) For commercial 

distribution, including for test 

marketing, or (2) for use by the 

manufacturer, including use for product 

research and development, or as an 

intermediate. 

Certain new definitions are being 

added to § 710.43 as a result of this final 

rule. 

a. Known to or reasonably 

ascertainable by. TSCA section 8(a)(2) 

authorizes EPA to require persons to 

report information that is known to or 

reasonably ascertainable by the 

submitter. For the purposes of reporting 

under IURA, a submitter will report 

information described in the regulatory 

text at § 710.52(c)(1), (c)(2), and (c)(3) 

that is known to or reasonably 

ascertainable by the submitter. This 

means all information in a person’s 

possession or control, plus all 

information that a reasonable person 

similarly situated might be expected to 

possess, control, or know. 

b. Readily obtainable information. 

TSCA section 8(a)(2) authorizes EPA to 

require persons to report information 

that is known to or reasonably 

ascertainable by the submitter. Under 

IURA, a submitter will report processing 

and use information (i.e., the 

information reported for sites at which 

the 300,000 lbs. threshold has been met 

or exceeded) only to the extent that such 

information is ‘‘readily obtainable’’ by 

the submitter’s management and 

supervisory employees responsible for 

manufacturing, processing, distributing, 

technical services, and marketing of the 

reportable chemical substance (see 

regulatory text § 710.43). Extensive file 

searches are not required. The ‘‘readily 

obtainable’’ standard for processing and 

use information requires less effort on 

the part of the submitter than the 

‘‘known to or reasonably ascertainable 

by’’ standard that applies to all other 

IUR reporting (see regulatory text 

§ 710.43), while providing sufficiently 

precise processing and use information 

for screening level reviews. In addition, 

the ‘‘readily obtainable’’ standard limits 

the reporting burden associated with 

processing and use reporting and is 

identical to the standard currently in 

effect under EPA’s TSCA Section 8(a) 

Preliminary Assessment Information 

Rule (PAIR) (See 40 CFR 712.7). The 

‘‘readily obtainable’’ definition is 

further discussed in Unit III.D.2. 

c. Reasonably likely to be exposed. 

For the purposes of reporting under 

IURA, reasonably likely to be exposed 

means an exposure to a chemical 

substance which, under foreseeable 

conditions of manufacture (including 

import), processing, distribution in 

commerce, or use of the chemical 

substance, is more likely to occur than 

not to occur. Such exposures would 

860 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

normally include, but would not be 

limited to, activities such as charging 

reactor vessels, drumming, bulk loading, 

cleaning equipment, maintenance 

operations, materials handling and 

transfers, and analytical operations. 

Covered exposures include exposures 

through any route of entry (inhalation, 

ingestion, skin contact, etc.), but 

excludes accidental or theoretical 

exposures. 

d. Use. For the purpose of reporting 

under IURA, EPA is defining ‘‘use’’ as 

any utilization of a chemical substance 

or mixture that is not otherwise covered 

by the terms ‘‘manufacture’’ or 

‘‘process’’ (see regulatory text § 710.43). 

For example, the activity of processing 

a solvent into a paint formulation is 

considered ‘‘processing’’ rather than 

‘‘use’’ because the activity incorporates 

the chemical substance (the solvent) 

into a formulation. If the paint 

formulation containing the solvent is 

then applied to a metal or wood surface 

(e.g., cars), this application would be 

considered a use activity. Relabeling or 

redistributing a container holding a 

chemical substance or mixture where no 

repackaging occurs does not constitute 

use or processing of the chemical 

substance or mixture. 

e. Repackaging. For the purpose of 

reporting under IURA, ‘‘repackaging’’ is 

defined as the physical transfer of a 

chemical substance or mixture (as is) 

from one container to another container 

or containers in preparation for 

distributing the chemical substance or 

mixture in commerce. This definition 

does not apply to sites that only relabel 

or redistribute the reportable chemical 

substance without removing the 

chemical substance from the container 

in which it is received or purchased. 

f. Industrial use. EPA defines 

‘‘industrial use’’ for purposes of 

reporting under IURA as use at a site at 

which one or more chemical substances 

or mixtures are manufactured or 

processed (see § 710.43 of the regulatory 

text). 

g. Commercial and consumer use. For 

purposes of reporting under IURA, EPA 

defines ‘‘commercial use’’ as the use of 

a chemical substance or mixture in a 

commercial enterprise providing 

saleable goods or a service, such as 

painting contractors using paint 

products. A ‘‘consumer use,’’ on the 

other hand, means the use of a chemical 

substance that is directly, or as part of 

a mixture, sold to or made available to 

consumers for their use in or around a 

permanent or temporary household or 

residence, a school, or recreational areas 

(see § 710.43 of the regulatory text). 

Exposures to commercial and consumer 

products are similar for risk screening 

purposes because existing screening 

level assessment methods are not 

sophisticated enough to distinguish 

between these exposures. 

h. Intended for use by children. For 

purposes of reporting under IURA, EPA 

defines ‘‘intended for use by children’’

as the use of a chemical substance or 

mixture in or on a product that is 

specifically intended for use by children 

age 14 or younger. A chemical substance 

or mixture is intended for use by 

children when the submitter answers 

‘‘yes’’ to at least one of the following 

questions for the product into which the 

submitter’s chemical substance or 

mixture is incorporated: (1) Is the 

product commonly recognized (i.e., by a 

reasonable person) as being intended for 

children age 14 or younger; (2) Does the 

manufacturer of the product state 

through product labeling or other 

written materials that the product is 

intended for or will be used by children 

age 14 or younger; or (3) Is the 

advertising, promotion, or marketing of 

the product aimed at children age 14 or 

younger? 

i. Reportable chemical substance. For 

the purposes of reporting under IURA, 

a reportable chemical substance is a 

chemical substance described in 

§ 710.45 of the regulatory text. 

j. Reporting year. For the purposes of 

reporting under IURA, the reporting 

year is the calendar year in which 

information to be reported to EPA 

during a submission period is generated, 

i.e., calendar year 2005 and the calendar 

year at 4–year intervals thereafter. For 

instance, for information submitted in 

2006, the information will be generated 

during the period from January 1 to 

December 31, 2005. 

k. Submission period. For the 

purposes of reporting under IURA, the 

submission period is the period in 

which the information generated during 

the reporting year is submitted to EPA. 

For instance information generated 

during the period from January 1 to 

December 31, 2005 (i.e., when the 

chemical substance is manufactured) 

will be submitted during the 2006 

submission period. 

l. Site-limited. For purposes of 

reporting under IURA, EPA defines 

‘‘site-limited’’ to mean that a chemical 

substance is manufactured and 

processed only within a site and is not 

distributed for commercial purposes as 

a substance or as part of a mixture or 

article outside the site. Imported 

substances are never site-limited. 

Although a site-limited chemical 

substance is not distributed for 

commercial purposes outside the site at 

which it is manufactured and processed, 

the substance is considered to have been 

manufactured and processed for 

commercial purposes. 

7. What new data elements are 

reportable by only larger production 

volume manufacturers? As described in 

Unit II.F.2., EPA is replacing the current 

IUR reporting threshold of 10,000 lbs. 

per year per site with two new 

production volume reporting thresholds 

of 25,000 lbs. and 300,000 lbs. per year 

per site. Each person manufacturing a 

reportable substance at or above the 

25,000 lbs. per year per site threshold is 

required to complete at least a partial 

report containing the information in 

Parts I and II of the revised Form U. 

Persons who manufacture a reportable 

substance at or above the 300,000 lbs. 

per year per site threshold are required 

to complete a full report, providing the 

information in Part III of the revised 

Form U in addition to the information 

in Parts I and II. Part III concerns the 

processing and use of chemical 

substances. 

a. Processing and use information 

(§ 710.52(c)(4) of the regulatory text). 

Submitters with plant sites at which a 

reportable chemical substance is 

manufactured in annual quantities of 

300,000 lbs. or more must report 

processing and use information under 

IURA. EPA requires submitters to report 

the information described in 

§ 710.52(c)(4) of the regulatory text 

concerning the processing and use of 

each reportable chemical substance at 

sites that receive a reportable chemical 

substance from the submitter site either 

directly or indirectly (including through 

a broker/distributor, from a customer of 

the submitter, etc.), whether the 

recipient site(s) are controlled by the 

submitter site or not. Processing and use 

information must be reported only to 

the extent that the data, or an estimate, 

is ‘‘readily obtainable’’ by the submitter 

(see Unit II.F.6.b.). 

i. Industrial processing or use 

operations (§ 710.52(c)(4)(i)(A) of the 

regulatory text). Submitters must report 

the industrial processing or use 

operation(s) at each site that receives the 

reportable substance from the submitter 

site (whether the recipient site(s) are 

controlled by the submitter site or not). 

The categories for reporting are listed in 

§ 710.52(c)(4)(i)(A) of the regulatory 

text. 

ii. North American Industrial 

Classification System (NAICS) Code 

(§ 710.52(c)(4)(i)(B) of the regulatory 

text). Submitters must report the five–

digit NAICS code(s) that best describe(s) 

the industrial processing or use 

activities at the sites that receive a 

reportable chemical substance from the 

submitter either directly or indirectly 

(including through a broker/distributor, 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 861

from a customer of the submitter, etc.), 

whether the recipient site(s) are 

controlled by the submitter site or not. 

The NAICS codes, published by the 

Office of Management and Budget 

(OMB), have superseded the prior 

system of Standard Industrial 

Classification (SIC) codes (Ref. 15). 

Submitters must report these codes to 

the extent the information is readily 

obtainable for processing or use 

activities at sites that process or use a 

reportable chemical substance received 

from the submitter. EPA does not intend 

for manufacturers to survey their 

customers or distributors to precisely 

identify the appropriate NAICS codes at 

their downstream sites. 

The NAICS classification system is 

being used in IURA to describe the 

industrial setting in which chemical 

exposures associated with the industrial 

processing or use of a chemical 

substance may occur. Exposure to a 

chemical substance typically varies 

among industries. The NAICS code in 

conjunction with the Industrial 

Function Category (IFC) code and the 

processing or use operation will define 

the industrial, commercial, or consumer 

setting so that the appropriate scenarios 

can be applied to estimate worker, 

community, and environmental 

exposures to the chemical substance. 

The NAICS codes which best describe 

the industrial activities associated with 

each reported industrial processing or 

use operation must be provided. If more 

than 10 NAICS codes apply to a 

reportable chemical substance, 

submitters need only report the 10 

NAICS code, IFC and processing or use 

operation combinations that 

cumulatively represent the largest 

percentage of the substance’s 

production volume, measured by 

weight. Submitters may also report the 

same NAICS code multiple times if the 

chemical being reported has several 

industrial functions or multiple 

processing or use operations. This 

limitation on reporting is intended to 

minimize submitters’ reporting burden. 

iii. Industrial function category (IFC) 

(§ 710.52(c)(4)(i)(C) of the regulatory 

text). Submitters must report the IFCs 

that best represent the specific manner 

in which a chemical substance is used 

within each NAICS code reported. 

Submitters may report the same 

function category under different NAICS 

codes. The IFCs to be used are listed in 

the regulatory text at § 710.52(c)(4)(i)(C). 

A NAICS code and IFC combination 

sufficiently defines a potential exposure 

scenario for risk screening and priority–

setting purposes. EPA conducted 

studies to determine whether 

information regarding the industrial 

sectors in which a chemical substance is 

processed and used, and information 

regarding the function a chemical 

substance performs within industrial 

processes, are useful for the purpose of 

screening level exposure assessments. 

These studies demonstrated that this 

type of information provides indications 

of the route, magnitude, and 

concentration of potential chemical 

exposures to humans and to the 

environment. The results of the studies 

are provided in two of the technical 

support documents that EPA developed 

in support of this rule (Refs. 14 and 16). 

IFCs are also useful in estimating the 

frequency and duration of chemical 

substance exposures by indicating the 

type of application in which a chemical 

will be used (e.g., solvents (for cleaning 

and degreasing) or intermediate). The 

relationship between industrial function 

categories and the frequency and 

duration of exposure to chemical 

substances is particularly useful in 

developing exposure assessments in 

EPA’s New Chemicals Program. These 

data elements are important elements in 

developing useful exposure scenarios. 

In the absence of these data, EPA often 

uses conservative estimates that may 

indicate a greater risk than is actually 

the case. Data that will be obtained 

under IURA will enable EPA to make 

more realistic characterizations of 

exposure, instead of ‘‘worst case’’

assumptions. 

iv. Percentage of production volume 

attributable to each combination of 

NAICS code and industrial function 

category in each processing or use 

operation (§ 710.52(c)(4)(i)(D) of the 

regulatory text). Submitters must 

estimate the percentage of total 

production volume attributable to each 

reported combination of NAICS code 

and IFC in each processing or use 

operation, to the extent that such 

information is readily obtainable. 

Estimates must be rounded off to the 

nearest 10% of production volume. 

Submitters are not permitted to round 

off to zero percent if the production 

volume attributable to a NAICS code/

IFC/processing or use operation 

combination is 300,000 lbs. or more and 

accounts for 5% or less of the total 

production volume of a reportable 

chemical substance. In such cases, 

submitters must report the percentage of 

production volume attributable to that 

combination to the nearest 1% of 

production volume. This exception to 

the general rounding rule will ensure 

that adequate use information is 

reported for the larger production 

volume chemical substances. 

The total percent production volumes 

associated with the NAICS code/IFC 

combinations may add up to more than 

100%, given that the submitter is 

reporting on distribution of a chemical 

to sites in its control as well as 

downstream sites, some of which are 

not immediate purchasers from the 

original manufacturing site. 

Additionally, the total percent 

production volume may add up to less 

than 100% if the submitter cannot 

readily obtain information about how all 

of its production volume is processed or 

used by industry. 

v. Number of processing or use sites 

(§ 710.52(c)(4)(i)(E) of the regulatory 

text). Submitters must report estimates 

of the total number of industrial sites, 

including those beyond the submitter’s 

control, that process or use each 

reportable chemical substance 

manufactured by the submitter, with 

respect to each combination of NAICS 

code and IFC in each processing or use 

operation. The ranges that will be used 

for reporting the number of sites can be 

found at § 710.52(c)(4)(i)(E) of the 

regulatory text. For risk screening 

purposes, the number of sites at which 

chemical substances are manufactured, 

processed, or used is a useful indicator 

of the number of ecosystems and the 

size of the general population 

potentially exposed to the chemical 

substances. 

vi. Number of workers 

(§ 710.52(c)(4)(i)(F) of the regulatory 

text). Submitters must report estimates 

of the total number of workers, 

including those at sites not under the 

submitter’s control, that are reasonably 

likely to be exposed while processing or 

using the reportable chemical substance, 

with respect to each combination of 

NAICS code and IFC in each processing 

or use operation. The approximate 

number of workers will be reported 

using the same definitions and ranges 

described under Unit II.F.5.e. The 

difference in reporting worker exposure 

information under this section is that 

such information need be reported only 

to the extent that it is readily obtainable. 

b. Commercial and consumer use 

information (§ 710.52(c)(4)(ii) of the 

regulatory text). Submitters must report 

information concerning the commercial 

and consumer uses of each reportable 

chemical substance, whether the site(s) 

at which the chemical substance is used 

are controlled by the submitter site or 

not. As for the industrial processing and 

use information described in Unit 

II.F.7.a., commercial and consumer use 

information must be reported only by 

sites at which a chemical substance is 

manufactured in annual quantities of 

300,000 lbs. or more, and submitters are 

only required to report the information 

to the extent that it is readily obtainable. 

862 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

Consumers comprise a subpopulation 

of particular concern to EPA, the 

Consumer Products Safety Commission 

(CPSC), and other governmental and 

non–governmental organizations. 

Information from submitters about 

whether the chemical substances they 

manufacture are used in consumer 

products is useful in estimating the 

potential risks to consumers that result 

from chemical exposures. In the absence 

of more specific data, EPA often 

assumes for risk screening purposes that 

large, unprotected populations may 

potentially be exposed to the chemical 

substances in consumer products. EPA 

is also working with industry and other 

stakeholders to develop hazard, 

exposure, and risk assessments 

regarding chemicals to which children 

are exposed. The commercial and 

consumer product information that will 

be reported under IURA will be used by 

EPA in the identification of chemicals 

that might be included in these 

programs, and may contribute to 

exposure assessments for these 

chemicals. 

i. Commercial and consumer product 

categories (§ 710.52(c)(4)(ii)(A) of the 

regulatory text). Submitters must report 

up to 10 categories that best describe the 

commercial and consumer products in 

which the reportable chemical 

substance is used (whether the recipient 

site(s) are controlled by the submitter 

site or not). If more than 10 categories 

apply, submitters need only report the 

10 categories for the chemical substance 

that cumulatively represent the largest 

percentage of the submitter’s production 

volume, measured by weight. The 

commercial and consumer product 

(CCP) categories are listed at 

§ 710.52(c)(4)(ii)(A) of the regulatory 

text. Information on the use of 

chemicals in CCPs is useful in 

estimating the frequency and duration 

of chemical substance exposures. In the 

absence of other information, consumers 

are often assumed to experience less 

controlled, but less frequent exposures 

than workers. The data that will be 

obtained under IURA will enable EPA to 

make more realistic characterizations of 

exposure, instead of ‘‘worst case,’’

overly conservative assumptions. 

ii. Products intended for use by 

children (§ 710.52(c)(4)(ii)(B) of the 

regulatory text). Submitters must 

indicate, within each reported CCP 

category, whether, based on readily 

obtainable information, any amount of 

each reportable chemical substance 

manufactured by the submitter is or is 

not present in (for example, a plasticizer 

chemical used to make pacifiers) or on 

(for example, as a component in the 

paint on a toy) any products intended 

for use by children, regardless of the 

concentration of the substance, or 

indicate that such information is not 

readily obtainable. 

EPA defines ‘‘intended for use by 

children’’ in § 710.43 of the regulatory 

text and in Unit II.F.6.h. Using this 

definition, if a submitter determines, 

based on readily obtainable information, 

that its chemical substance or mixture is 

used in or on a product that is intended 

to be used by children age 14 or 

younger, the submitter would indicate 

this on Form U. For example, EPA 

believes that certain products, like 

crayons, coloring books, diapers, and 

toy cars – to name a few – are typically 

intended to be used by children age 14 

or younger. As such, if a submitter 

determines, based on readily obtainable 

information, that its chemical substance 

or mixture is used in crayons and toy 

cars, that submitter would report a ‘‘Y’’

in the Children’s Use column on Form 

U for categories C01 and C10. 

On the other hand, EPA believes that 

certain products, like household 

cleaning products, automotive products, 

and lubricants--to name a few--are 

typically not intended to be used by 

children age 14 or younger. As such, if 

a submitter determines, based on readily 

obtainable information, that its chemical 

substance or mixture is used in 

automotive care products and 

lubricants, that submitter could report a 

‘‘N’’ in the Children’s Use column on 

Form U for categories C03 and C09. 

For further illustration, some 

examples of products that are typically 

intended for use by children 14 or 

younger are provided for each 

commercial and consumer use category 

(this listing is not intended to be 

exhaustive and should therefore not be 

considered limiting):

Code Category Examples of Children’s Products 

C01 Artists’ supplies Crayons, children’s markers 

C02 Adhesives and sealants Craft glue, model glue 

C03 Automotive care products Typically products in this category are not likely to be 

intended for use by children 14 or younger 

C04 Electrical and electronic products Electronic games, remote control cars, toys 

C05 Glass and ceramic products Porcelain dolls 

C06 Fabrics, textiles and apparel Pajamas 

C07 Lawn and garden products (non-pesticidal) Lawn and gardening tools designed specifically for 

children, e.g., children’s rake 

C08 Leather products Shoes, jackets, baseball gloves 

C09 Lubricants, greases and fuel additives Typically products in this category are not likely to be 

intended for use by children 14 or younger 

C10 Metal products Toy trucks, toy cars, wagon 

C11 Paper products Diapers, baby wipes, coloring books 

C12 Paints and coatings Finger paints, water color kits intended for children’s 

use 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 863

Code Category Examples of Children’s Products 

C13 Photographic chemicals Typically products in this category are not likely to be 

intended for use by children 14 or younger 

C14 Polishes and sanitation goods Typically products in this category are not likely to be 

intended for use by children 14 or younger 

C15 Rubber and plastic products Pacifiers, action figures, balls 

C16 Soaps and detergents Baby shampoo, children’s bubble bath 

C17 Transportation products Child’s car seat 

C18 Wood and wood furniture Baby cribs, changing tables, wooden toys 

C19 Other Other items specifically intended for use by children 

age 14 or younger 

EPA chose the phrase ‘‘intended for 

use by children’’ because it appears in 

the Federal Hazardous Substances Act 

(FHSA) (15 U.S.C. 1261 et seq.) and has 

been applied by the Consumer Product 

Safety Commission (CPSC) for over 20 

years. While not specifically defined in 

FHSA or its implementing regulations, 

the CPSC regulations list several factors 

that CPSC considers in determining 

whether a product is a ‘‘children’s 

product’’ intended for use by children 

(16 CFR 1501.2(b)). After consultation 

with CPSC, EPA adapted these factors 

for the purpose of defining ‘‘intended 

for use by children’’ for IURA purposes. 

EPA based the ages for the definition, 

i.e., 14 or younger, on the Standard 

Consumer Safety Specification on Toy 

Safety issued by the American Society 

for Testing and Materials (ASTM), 

Standard: ASTM F963–96a. This 

standard covers age groups through 14 

years and defines ‘‘toy’’ as: ‘‘any object 

designed, manufactured, or marketed as 

a plaything for children through the age 

of 14 years’’ (Ref. 17, section 3.1.33). 

Obtaining information indicating that 

a chemical substance or mixture is used 

in a product that is intended for use by 

children will enable the Agency and 

others to identify chemicals affecting 

this particularly sensitive population. 

EPA has long had an interest in 

protecting children from unreasonable 

adverse affects associated with exposure 

to chemicals. In 1995, EPA established 

a policy to ensure that environmental 

health risks of children are explicitly 

and consistently evaluated in our risk 

assessments, risk characterizations, and 

environmental and public health 

standards (see http://yosemite.epa.gov/

ochp/ochpweb.nsf/homepage). 

Environmental health threats to 

children are often difficult to recognize 

and assess because of limited 

information to identify where children’s 

exposures occur and limited 

understanding of when and why 

children’s exposures and responses are 

different from those of adults. 

In 1997, Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

specifically directed each Federal 

agency to make it a high priority to 

identify, assess, and address children’s 

environmental health and safety risks. It 

also created a Task Force on 

Environmental Health Risks and Safety 

Risks to Children. On October 9, 2001, 

President Bush signed Executive Order 

13229, entitled Amendment to 

Executive Order 13045, Extending the 

Task Force on Environmental Health 

Risks and Safety Risks to Children (66 

FR 52013, October 11, 2001), extending 

the work of the Task Force by another 

18 months. These Executive Orders 

illustrate the interest in and the 

importance placed on addressing 

children’s environmental health and 

safety risks. 

The inclusion of the children’s use 

category in IURA will provide the 

Agency and others with valuable 

information about the relationship 

between the IUR chemicals and 

products intended for use by children 

14 or younger. This information will 

allow the Agency to respond to 

concerns about chemicals used in the 

manufacture of products intended for 

use by children, enabling the Agency to 

identify those chemicals that are 

reported as not being used in children’s 

products, those chemicals that are used 

in children’s products, and those 

chemicals where it is not known if they 

are used in children’s products. This 

initial screen will then allow EPA and 

others to identify those chemicals used 

in children’s products that might 

warrant further investigation or 

assessment, and thereby allow EPA, as 

well as other interested parties and 

affected entities, to better prioritize such 

assessments and maximize available 

resources. 

iii. Percentage of production volume 

attributable to each commercial and 

consumer product category 

(§ 710.52(c)(4)(ii)(C) of the regulatory 

text). Submitters must estimate the 

percentage of their site production 

volume for each reportable chemical 

substance that is attributable to each 

specific commercial and consumer end–

use. This information must be submitted 

to the extent that it is readily obtainable. 

Estimates must be rounded off to the 

nearest 10% of production volume. 

However, a CCP category which 

accounts for 5% or less of the total 

production volume of a reportable 

chemical substance cannot be rounded 

off to zero percent if the production 

volume attributable to that CCP category 

is greater than or equal to 300,000 lbs. 

In such cases, submitters must report 

the percentage of production volume 

attributable to that CCP category to the 

nearest 1% of production volume. This 

exception to the general rounding rule 

will ensure that adequate use 

information is reported for the larger 

production volume chemical 

substances. 

The total percent production volumes 

reported may add up to more than 

100%, given that the submitter is 

reporting on distribution of a chemical 

to sites in its control as well as 

downstream sites, some of which are 

not immediate purchasers from the 

original manufacturing site. 

Additionally, the total percent 

production volume may add up to less 

than 100% if the submitter cannot 

readily obtain information about how all 

of its production volume is used in 

commercial and consumer products. 

864 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

iv. Maximum concentration in 

commercial and consumer products 

(§ 710.52(c)(4)(ii)(D) of the regulatory 

text). Submitters must report the 

maximum concentration (measured by 

weight) of each reportable chemical 

substance in each commercial and 

consumer product category. In 

complying with this requirement, 

submitters will select from the list of 

concentration ranges provided in 

§ 710.52(c)(3)(vii) in the regulatory text. 

Concentration is further discussed in 

Unit III.B.1.b. As with the other 

processing and use information that 

submitters must report, such 

information will be reported only to the 

extent that it is readily obtainable by the 

submitter. 

8. What changes have been made to 

requirements for making CBI claims? 

Submitters are able to claim information 

submitted to EPA under this amended 

rule as confidential if they have reason 

to believe that release of the information 

would reveal trade secrets or 

confidential commercial or financial 

information, as provided by section 14 

of TSCA and 40 CFR part 2. Claims of 

confidentiality must be asserted at the 

time information is submitted to EPA. 

EPA’s procedures for processing and 

reviewing confidentiality claims are set 

forth at 40 CFR part 2, subpart B. EPA 

strongly encourages submitters to 

review confidentiality claims carefully 

to ensure that the information in 

question falls within the protection of 

TSCA section 14, and to limit invalid 

confidentiality claims as much as 

possible. 

Submitters will have an opportunity 

to make CBI claims for most of the 

information reported under IURA. To 

claim information as confidential, a 

submitter must check the appropriate 

box and sign the certification statement 

on the reporting form. If a submitter 

fails to do so, EPA could release the 

information to the public without 

further notice to the submitter. As in the 

past TSCA Inventory Update collections 

and the initial TSCA Inventory 

collection, by signing the certification 

statement the submitter certifies that its 

claims of confidentiality are true and 

correct. Procedures for claiming 

information submitted electronically 

(such as a submission on diskette) as 

CBI will be specified in the instruction 

manual that will be available each 

submission period as described in 

§ 710.59 of the regulatory text. CBI 

should not be submitted by e–mail. A 

discussion about CBI claims under 

IURA is provided in this unit. 

a. Upfront substantiation for plant site 

identity. Submitters are required to 

provide upfront substantiation for CBI 

claims for plant site identity, in a 

manner similar to the upfront 

substantiation of chemical identity 

under the existing IUR (see 40 CFR 

710.38). Under IURA (see § 710.58(d) of 

the regulatory text), a submitter may 

assert a claim of confidentiality for a 

plant site identity if the submitter 

believes that releasing that identity 

would reveal trade secrets or 

confidential commercial or financial 

information, as provided by TSCA 

section 14. Submitters in past IUR 

information collections have claimed in 

excess of 15% of plant site identities as 

CBI. While the Agency does not 

question the occasional need for this 

claim, it believes that these claims 

should be limited to only those 

circumstances in which it is necessary. 

Further discussion on upfront 

substantiation is found in Unit III.E.2. 

In order to assert a claim of 

confidentiality for a plant site identity 

under this amended rule, the submitter 

must check the appropriate box on the 

reporting form indicating a 

confidentiality claim for plant site 

identity and substantiate the claim in 

writing by answering certain questions 

provided in § 710.58(d) of the regulatory 

text. If a submitter fails to substantiate 

the plant site CBI claim, EPA could 

make the information available to the 

public without further notice to the 

submitter. 

b. CBI claims for chemical production 

volume information. EPA did not 

change the ability of the submitter to 

assert a claim of confidentiality for 

production volume information if the 

release of that information would reveal 

trade secrets or confidential commercial 

or financial information as provided by 

section 14 of TSCA. However, 

submitters may now make separate CBI 

claims for both actual plant site 

production volume information and a 

corresponding production volume 

range. Production volume ranges are 

similar to those used in the 

implementation of the original TSCA 

Inventory collection and can be found at 

§ 710.52(c)(3)(v) of the regulatory text. 

In the last four IUR submission 

periods when EPA sought actual 

production volume information, 

approximately 65% of the information 

was claimed as confidential. In contrast, 

only 35% of production volume data 

collected in ranges in the original TSCA 

inventory collection were claimed as 

confidential. This difference indicates 

that submitters may be significantly less 

likely to make CBI claims for production 

volume information reported in ranges 

than for discrete production volume 

figures. The high proportion of CBI 

claims in IUR reports has severely 

limited EPA’s ability to convey 

production volume information to the 

public, even in the form of a national 

aggregate production volume for the 

chemical. EPA needs to be able to 

convey production volume information 

to the public to explain its chemical risk 

assessment and risk management 

decisions. Effective communication of 

this information is vital to EPA’s overall 

mission. EPA has added the ability to 

claim production volume range 

information CBI in an effort to address 

this problem. In some cases, submitters 

may choose to claim their actual 

production volume as CBI, while 

allowing the more general production 

volume range to be made public. 

III. Public Comments 

EPA carefully considered the 

comments it received on the proposed 

IURA. Major comments are discussed 

below. Additional comment summaries 

and more detailed responses are 

contained in the ‘‘Summary of EPA’s 

Responses to Public Comments 

Submitted in Response to Proposed 

TSCA Inventory Update Rule 

Amendments’’ (Ref. 18). 

A. General Comments 

1. How will EPA and others use the 

new exposure-related data collected 

under these amendments? Several 

commenters expressed the view that 

EPA has not provided adequate 

justification supporting the Agency’s 

need for the new IUR data, nor enough 

specific examples showing how EPA 

would use the data for its intended 

purpose. 

EPA has an obligation under TSCA to 

protect human health and the 

environment from unreasonable risks 

associated with chemicals under its 

jurisdiction. In order to evaluate 

potential chemical risks, EPA has 

determined that a portion of the 

chemicals (both inorganic and organic) 

on the TSCA Inventory currently 

warrant the collection of manufacturing 

information, and that a subset of those 

chemicals (i.e., those produced in 

annual quantities of 300,000 lbs. or 

more at a site) currently warrant the 

collection of supplementary processing 

and use information. EPA is amending 

the IUR to provide an accurate and 

readily available source of basic 

exposure-related information for 

approximately 4,000 of the 76,000 

substances listed on the TSCA 

Inventory. The amendments 

significantly limit industry’s reporting 

burden while providing EPA with 

information needed to screen for risks to 

human health and the environment. 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 865

EPA’s primary use of these data will 

be to identify priority TSCA chemicals 

for more detailed information gathering, 

risk assessment, and risk management 

in order to develop targeted programs, 

allowing the Agency to be proactive in 

protecting human health and the 

environment. Screening chemical risks 

generally requires a combination of both 

hazard and exposure information. The 

lack of exposure-related data beyond 

production volume data in the current 

IUR has severely limited the usefulness 

of the current IUR data for risk 

screening. Moreover, the exposurerelated data that will be collected under 

IURA are not otherwise readily available 

from publicly available data sources (see 

Unit III.A.3.). This lack of exposurerelated data has made it difficult for 

EPA and others to identify chemicals 

with potential exposures of concern, 

and has resulted in the generation of 

overly conservative screening level 

exposure assessments. 

The addition of manufacturing, 

processing and use exposure-related 

data to IURA, especially when compiled 

by EPA into a searchable data base 

format, will enable EPA and others to 

more readily screen chemicals for 

exposure and risk. These reviews will 

allow for better prioritization of 

chemicals to identify those warranting 

more detailed assessments and to 

eliminate chemicals of lesser concern 

from further review. 

Data generated by IURA will be used 

in a wide variety of programs 

fundamental to fulfilling the Agency’s 

TSCA statutory mandate. These 

programs range from the more 

traditional existing chemicals risk 

screening efforts, to voluntary programs 

such as EPA’s Design for the 

Environment program (see http://

www.epa.gov/opptintr/dfe), to 

individual requests for analysis of 

chemicals not associated with a 

particular program. The IURA data base 

will be searched to identify chemicals or 

use scenarios meeting specific criteria. 

For instance, the data base could be 

searched to identify chemicals that, 

based upon these data, have the greatest 

potential for consumer exposure, 

creating a list of chemicals arranged 

according to the production volumes 

associated with different consumer uses. 

Additional examples of uses for IURA 

data are provided in this section and in 

EPA’s ‘‘IURA Data Use Plan’’ (Ref. 19). 

The Agency anticipates that, as was true 

even for the basic production data 

reported under the existing IUR, new 

uses of IURA data by EPA and by others 

will continually emerge and cannot be 

predicted at this time. 

Results from EPA tools such as the 

Use Cluster Scoring System (UCSS) will 

be greatly improved by IURA data. The 

UCSS is a computerized tool that 

combines hazard and exposure 

information from a variety of data 

sources, analyzes the data in relation to 

groupings by commercial use, or 

‘‘clusters,’’ and identifies clusters of 

potential concern to EPA. EPA’s Science 

Advisory Board (SAB) commented in its 

evaluation of the UCSS that the lack of 

exposure information in the system has 

impaired its usefulness (Ref. 20). The 

IURA data base will provide exposure 

information that the UCSS will be able 

to download directly and use. (For a 

description of UCSS, see V.B.6. of the 

proposed rule at 64 FR 46780 or 

www.epa.gov/oppt/cahp/actlocal/

use.html) 

EPA will also use IURA data to 

perform preliminary exposure and risk 

screening across a portion of the TSCA 

Inventory chemicals. Some of the same 

types of data that will be collected 

under IURA have been collected under 

the Agency’s TSCA Existing and New 

Chemicals Programs and have aided 

EPA in performing exposure and risk 

screening. These exposure-related data 

were submitted as part of programs such 

as: The voluntary UEIP (see http://

www.epa.gov/opptintr/exposure/docs/

ueip.htm for a description of this 

project) and the PMN program under 

TSCA section 5. Although the UEIP and 

PMN programs involve the submission 

of certain data that are the same as or 

similar to data being submitted under 

IURA, these programs cannot 

sufficiently serve the needs that IURA 

will serve (see Units V.A.1. and V.B.5. 

of the proposed rule at 64 FR 46775 and 

46780). However, these programs are 

examples of the usefulness of certain 

IURA data elements. 

For example, several IURA data 

elements were used in an Existing 

Chemicals Program initial review of the 

chemical methyl ethyl ketoxime 

(MEKO). This review relied in part upon 

data submitted by industry under the 

UEIP. Some of the data are similar to 

those that will be reported under IURA 

and include the following: Production 

volume, manufacturing process, 

industry sector, industrial processing/

use activity, functional use, number of 

sites, number of workers, physical/

chemical properties, and consumer 

product information. Other UEIP 

information submitted by industry on 

MEKO are not of the sort that will be 

collected under IURA, such as 

environmental releases (releases to air, 

water, etc.), worker exposure activities, 

and monitoring data. The IURA is 

designed to obtain information that is 

the most critical for generating 

screening level exposure profiles. 

The UEIP submissions for MEKO 

indicated that there were one 

manufacturer and two importers of 

MEKO in 1993 and five primary end 

uses (submissions provided percentages 

of MEKO production and import 

volumes devoted to each use). The 

submissions also reported the number of 

workers at the manufacturing site, the 

physical forms of products containing 

MEKO, and the MEKO weight fraction 

in each use. 

The MEKO use information was 

combined with information from 

available workplace monitoring studies 

and modeling approaches to compile a 

screening level workplace exposure 

assessment. The UEIP information on 

use provided crucial information to 

allow EPA to postulate process 

operations, worker activities, and 

possible exposures. For example, 

MEKO’s primary use (92% of 

production and import volume) is as a 

paint additive. This fact allows EPA to 

refer to information on paint 

manufacturing and use to estimate 

exposures to workers who either 

formulate paints or apply the paints 

using spray guns or other techniques. 

MEKO use in paint indicates a potential 

for exposure to several large populations 

(workers and consumers) because 

exposure to even small amounts of paint 

can result in significant exposure levels 

to chemicals in paints. Such use 

information can also be used by EPA to 

generate estimated numbers of workers 

in very small businesses (< 10 workers) 

that may be poorly represented by 

existing National Occupation Exposure 

Survey (NOES) data. In the MEKO case, 

such a population would be commercial 

painters. Without the information about 

MEKO use in paints and the large 

percentage of MEKO volume devoted to 

this use, exposed populations and 

exposure level estimates may have been 

severely underestimated or left as a data 

gap (not estimated). Such 

underestimations and data gaps can 

artificially lower the appropriate level of 

concern for potential risk(s) from a 

chemical. 

The usefulness of IURA data elements 

is also demonstrated by EPA’s use of 

similar data in its New Chemicals 

Program. PMNs for new chemical 

substances submitted to EPA under 

TSCA section 5 require many of the 

same exposure-related data elements 

that will be reported under IURA. 

Exposure-related data in PMNs include 

estimates of production volume, 

categories of use, percent production 

volume in the categories of use, 

maximum number of workers exposed, 

866 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

and concentrations and physical forms 

of the chemical. EPA uses these 

exposure-related data to generate 

screening level risk assessments for 

regulatory decision-making under TSCA 

section 5. 

The manufacturer of a new chemical 

provided the following information in a 

recent PMN submission: An estimated 

import volume; chemical uses and the 

percentages of the import volume 

devoted to each use (non-cosmetic 

applications as a component of a 

fragrance formulation used in 

household products such as detergents, 

cleaners, soaps, room fresheners, etc.); 

number of sites and workers; and 

consumer product information (weight 

percent in products). EPA used this 

information in combination with 

technical references and other data to 

estimate the number of manufacturers of 

household products who may use the 

new substance. Releases of the new 

substance as a result of the fragrance 

formulation process and from 

manufacturers of the household 

products were estimated, resulting in 

estimated environmental concentrations 

of the new substance due to its release 

and estimated general population 

exposures to the new substance. EPA 

also used the information on processing 

and use in combination with modeling 

techniques to estimate the number of 

workers and consumers who may be 

exposed to the new substance and their 

estimated exposures to the new 

substance. These exposure-related 

estimates, when combined with 

information on the estimated hazards of 

the new substance, indicated that the 

estimated risks to potentially-exposed 

workers, the general population, 

consumers, and aquatic species were all 

below levels of concern. Therefore, the 

Agency could determine that no further 

regulation under TSCA section 5 was 

needed for this new substance. In 

contrast, without this information, EPA 

would have had to rely on generic 

assumptions for approximating 

potential exposures. These types of 

assumptions are intended to be 

conservative in nature and therefore 

often result in higher than likely 

exposure estimates. 

Information from the IURA may also 

be used in efforts to identify single 

chemicals to support potential exposure 

prevention activities. For example, EPA 

recently learned that certain imports of 

zinc sulfate were contaminated with 

cadmium. Using the IURA processing 

and use data on inorganic substances, 

EPA could have quickly identified 

importers of zinc sulfate and segments 

of industry or the general population 

that might use the chemical. EPA then 

could have targeted warnings of the 

potential for exposure to cadmium more 

effectively, thereby preventing 

exposures to the groups likely to be the 

most highly exposed. 

Other Federal agencies have also long 

recognized the need for and importance 

of exposure data. OSHA, NIOSH, and 

CPSC have written letters supporting 

EPA’s and their own need for exposure 

data (Refs. 12, 13, 21, 22, and 23). In 

May 2000, the Government Accounting 

Office (GAO) stated that ‘‘Various 

federal agencies have collected such 

human exposure data for a number of 

purposes; historically, these collection 

efforts have been limited to selected 

chemicals, subpopulations, and time 

periods’’ (Ref. 24). 

Other government agencies, industry, 

public interest groups, and the public in 

general will be able to access and use 

the non-CBI portion of IURA 

information. The IURA exposure-related 

data will be important to users beyond 

those who accessed the existing IUR in 

the past solely for production volume 

information. The Natural Resources 

Defense Council (NRDC), for example, 

has expressed interest in using IURA 

information (Ref. 25). In another case, 

persons interested in reviewing the HPV 

Challenge Program screening level 

hazard data (see http://www.epa.gov/

opptintr/chemrtk/volchall.htm) will be 

able to use the non-CBI exposure-related 

IURA data to put the hazard data into 

context. Risks identified via evaluation 

of these screening level hazard and 

exposure data then can be addressed. 

Although EPA can envision a wide 

variety of uses for the new IURA 

exposure-related information as 

described in this section, the Agency 

anticipates that even more opportunities 

exist for use of this information, as is 

true for the basic production data 

reported under the current IUR. 

2. What is the practical utility of the 

new exposure-related data? 

Commenters have questioned whether 

the data collected as a part of this 

rulemaking will have ‘‘practical utility.’’

Practical utility is defined in the 

Paperwork Reduction Act of 1995 (PRA) 

(44 U.S.C. 3502(11)) to mean ‘‘the ability 

of an Agency to use information, 

particularly the capability to process 

such information in a timely and useful 

fashion.’’ The OMB regulatory 

definition of ‘‘practical utility’’ at 5 CFR 

part 1320.3(l) addresses not only the 

theoretical or potential usefulness of 

information to an Agency, but also its 

actual usefulness, taking into account its 

accuracy, validity, adequacy, and 

reliability, the Agency’s ability to 

process the information in a useful and 

timely fashion, and whether the Agency 

demonstrates actual timely use of the 

data by the Agency’s own functions. 

The following discussion addresses 

commenters’ concerns in two parts: 

First, the accuracy, validity, adequacy, 

and reliability of the data; and second, 

the timely use of the data by EPA. 

a. How has the Agency ensured that 

the data will be accurate, valid, 

adequate, and reliable? Commenters 

asserted that the data EPA proposed to 

collect through IURA would not be 

adequate for the purposes stated by 

EPA, and would not be accurate, valid, 

or reliable. Commenters stated that the 

information collected through IURA 

would be of limited accuracy and would 

be inferior to data the Agency has 

collected in other programs. 

Commenters also stated that the 

information would be so uncertain that 

it would not be useful to predict 

chemical risk, and that there are so 

many other factors that affect exposure, 

such as engineering controls, that the 

data would provide a limited and 

potentially inaccurate view of potential 

exposure. Additionally, commenters 

asserted that they do not know how 

their chemicals are used downstream of 

the manufacturing site, therefore if they 

were required to report such 

information, the resulting data would be 

unreliable. 

EPA considered the types of 

information needed for screening level 

exposure and risk assessments and 

believes the information that will be 

collected through IURA will have the 

necessary level of accuracy, validity, 

adequacy, and reliability for such 

assessments. EPA agrees that there are 

many ways to increase the accuracy, 

validity, and reliability of the data. 

However, in developing IURA and 

considering various alternatives, EPA 

relied on experience from programs 

such as TSCA’s PMN program and the 

UEIP data collection, and maintained a 

balance between data needs for 

exposure screening and priority setting 

and the burden associated with 

providing the information. If the Agency 

had required very precise, specific 

reporting, submitter burden would have 

increased beyond that which is 

appropriate for a screening level data 

collection. EPA also agrees that there are 

many factors that can affect exposure 

potential; however, the data provided by 

the submitters will provide baseline 

information sufficient for an initial 

screen of exposure potential. 

i. Adequacy of the data. Before 

proposing the IURA, EPA analyzed 

various exposure data collections and 

assessments to determine the data 

elements needed for a screening level 

exposure assessment. This discussion 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 867

and analysis are in the document 

‘‘Inventory Update Rule (IUR) 

Amendment Technical Support 

Document: Exposure-Related Data 

Useful for Chemical Risk Screening’’

(Ref. 14). Commenters’ suggestions on 

the proposed rule implied that more 

extensive information about exposures 

than was included in the proposed rule 

would be necessary for even a screening 

level analysis of potential exposure. One 

commenter stated that there are many 

other factors that can significantly affect 

the potential for exposure. These factors 

include engineering controls and 

personal protective equipment 

practices, the nature of the activities in 

which workers are engaged, and the 

physicochemical characteristics of the 

chemical substances. This commenter 

also stated that the data collected under 

IURA will provide a limited and 

potentially inaccurate view of potential 

exposure. However, as summarized in 

Unit III.A.1., risk analyses performed by 

the Agency in general and OPPT in 

particular are graduated and datadriven. As the initial levels of concern 

and the quantity and quality of data 

increase, the need for methodologies 

used in risk review become more 

detailed and exacting, and the reviews 

become more accurate and reliable. 

Based on its experience screening 

chemical risks through such programs 

as the TSCA New Chemicals Program, 

the Agency believes IURA data will 

provide information adequate to 

perform initial screens of chemicals. 

The Agency also will be better able to 

prioritize and make basic risk 

management decisions about those 

chemicals of greatest concern as 

indicated by the available data. These 

better informed decisions will enhance 

confidence that the most appropriate 

chemicals are selected for more detailed 

assessments. 

ii. Accuracy and reliability of the 

data. The Agency considered the data 

accuracy and reliability needed for 

screening level exposure analyses, and 

took several steps to ensure IURA data 

meet those needs. Screening level data 

need not be absolutely precise, but 

should be accurate and reliable enough 

to make usable and defensible technical 

assessments. The IURA will supply 

exposure-related information the 

Agency currently does not have, 

recognizing that industry has a greater 

knowledge than EPA about its own 

operations and the uses of chemicals it 

manufactures and sells. Without this 

information, EPA either would not 

screen these chemicals, would screen 

them using outdated or anecdotal 

exposure information, or would rely on 

exposure estimates (typically 

conservative) using modeling data. 

Commenters stated that the accuracy 

and reliability of much of the 

information reported in Part III of the 

proposed revised Form U (§ 710.32(c)(4) 

of the proposed regulatory text, now 

§ 710.52(c)(4)) would be highly 

questionable because it relates to sites, 

activities, and products that are not 

under the direct or indirect control of 

the reporting company. Industry 

programs such as the ACC’s Responsible 

Care Program (see http://

www.americanchemistry.com for more 

information) require that, as part of the 

program, member companies work with 

customers, carriers, suppliers, 

distributors, and contractors to foster 

the safe use, transport and disposal of 

chemicals. The Responsible Care 

Program, coupled with basic marketing 

and sales force activities, suggests that 

many companies are well informed 

about downstream uses of their 

chemicals. EPA recognizes that 

submitters may not always have 

detailed information about how the 

chemical(s) they make are used. As a 

result, submitters will only be required 

to report this information to the extent 

it is ‘‘readily obtainable’’ (see Unit 

II.F.6.b.). In addition, the Agency 

believes, based on its experience with 

the New Chemicals Program, the UEIP, 

stakeholder meetings, discussions with 

industry about voluntary risk 

management programs, and industry’s 

various self-regulation initiatives, that 

most submitters have at least some basic 

information about downstream uses, 

such as the information that will be 

reported under the IURA. These data are 

believed to be of sufficient reliability for 

use by the Agency and others for 

purposes such as screening level risk 

assessments and prioritization. 

EPA also requires much of the IURA 

information to be submitted in EPA 

specified ranges. This requirement 

benefits both the Agency and 

submitters. First, range reporting is less 

burdensome for the submitter than 

calculating specific numeric estimates. 

Demanding greater data accuracy 

increases the burdens associated with 

data collection. Second, information 

reported in discrete numeric values can 

indicate a level of accuracy that is not 

necessarily present. EPA believes that a 

higher level of confidence in data 

accuracy can be achieved by specifying 

ranges. 

Commenters suggested that EPA use 

other methods to obtain processing and 

use information, such as voluntary data 

collection programs. However, 

voluntary industry efforts are not 

uniformly reliable for collecting data, 

and the Agency generally cannot ensure 

that data submitted under voluntary 

efforts will be complete and accurate. 

For example, the UEIP was undertaken 

by EPA in partnership with industry to 

collect relatively detailed information 

on 60 high production volume 

chemicals. EPA received data for 48 of 

the 60 UEIP chemicals. Many of the 

forms received for those 48 chemicals 

were not completely filled out, and only 

a subset of manufacturers submitted 

data. Thus, while the information that 

EPA received was quite useful, it was 

insufficiently complete for the purposes 

to which IURA information will be put. 

EPA’s experience with UEIP is an 

indicator that exposure data collected 

under a voluntary effort are likely to be 

uneven and fall short of meeting EPA’s 

needs. 

iii. Validity of the data. Another 

commenter had specific concerns about 

the validity of the worker exposure data 

and felt that an auditing program would 

be necessary to generally ensure an 

acceptable level of quality for data 

collected under IURA. 

EPA agrees that validated exposure 

data are the most useful for the full 

range of Agency risk assessment 

activities. However, EPA’s experience 

with similar data collection efforts such 

as TSCA’s New Chemicals Program 

demonstrates that the type of data EPA 

is collecting under IURA are sufficient 

for the purpose of screening to prioritize 

follow-on efforts for risk assessment and 

management. A rigorous validation 

process for all IURA exposure-related 

information would impose significant 

additional burdens on industry and the 

Agency that would likely outweigh the 

benefits accruing to the screening 

process. As discussed in Unit III.A.1., 

EPA exposure and risk evaluations are 

often iterative, with screening level 

assessments succeeded by more 

intensive and data rich assessments, as 

indicated by the screening level 

assessments and as data become 

available. The IURA data will be useful 

to the Agency in evaluating potential 

exposures and risks, serving as 

indicators as to what levels and types of 

exposures from which chemicals need 

further review. 

b. Will the Agency use the data in a 

timely manner? Many commenters 

questioned whether EPA would be able 

to make effective and timely use of 

IURA processing and use information, 

stating that the large amount of data 

submitted would overwhelm the 

Agency. EPA acknowledges that IURA 

will generate a significant quantity of 

new data that EPA has not handled 

under past IUR data collections. 

However, EPA has carefully designed 

868 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

the data collection to facilitate efficient 

data management and use. Data 

collected through IURA will be put into 

a relational data base format, which can 

be easily searched, compared, and used. 

The collection of data organized by 

codes, rather than narrative information 

presented in an unstructured manner, 

lends itself to such a data base format. 

In addition, providing for electronic 

IURA submissions allows data to be 

entered into the data base more 

accurately and expeditiously, resulting 

in a quick turnaround between the 

submission of the data to the Agency 

and the availability of the data for use. 

The Agency anticipates that 

approximately 95% of all reports will be 

submitted electronically or on disks, as 

opposed to hard copies. This compares 

with 70% that were submitted on disks 

in 1998. The IURA will facilitate EPA’s 

information management and the data 

will be available quickly for the 

Agency’s and others’ use. 

3. Why doesn’t EPA use other 

available sources of data or mechanisms 

to collect the data sought under IURA? 

EPA requested comments on specific 

mechanisms or data sources it could use 

to obtain needed exposure-related 

information with greater ease and less 

burden to industry. Commenters 

responded with a variety of sources, 

ranging from current data collection 

mechanisms within EPA (such as TSCA 

8(a) PAIR, UEIP, and cooperative 

approaches) to public data sources such 

as the Hazardous Substances Data Bank 

(HSDB) (HSDB is a toxicology data file 

on the National Library of Medicine’s 

(NLM) Toxicology Data Network 

(TOXNET)). In addition, many 

commenters stated that EPA has not 

made effective use of the exposurerelated data it has collected already 

under current or prior programs. For 

example, they stated that data collected 

under two other TSCA rules - the PAIR 

and the Comprehensive Assessment 

Information Rule (CAIR) rules - have not 

been used effectively to support Agency 

risk assessment or risk management 

decisions. Commenters went on further 

to say that under the voluntary UEIP, 

EPA was furnished exposure-related 

data on 60 HPV chemicals (actually only 

48), but only two reached the initial risk 

assessment stage. 

The alternate data sources 

commenters described were generally 

sources that EPA had already evaluated 

in its analysis for the proposed rule or 

with which EPA was otherwise familiar. 

EPA explored a wide variety of public 

data sources, as demonstrated in the 

following: ‘‘Inventory Update Rule (IUR) 

Amendments Technical Support 

Document: Exposure-Related Data 

Useful for Chemical Risk Screening’’

(Ref. 14), ‘‘Economic Analysis of 

Proposed Amendments to the TSCA 

Section 8 Inventory Update Rule’’ (Ref. 

26), and ‘‘A Review of Existing 

Exposure-Related Data Sources and 

Approaches to Screening Chemicals: A 

Response to CMA’’ (Ref. 27) (see also 

Unit V.B.5. of the proposed rule at 64 

FR 46780)). For the most part, 

commenters did not identify new 

sources or provide additional 

information to support the assertion that 

these alternate data sources provide the 

information that EPA proposed to 

collect under IURA. After considering 

the information provided, EPA believes 

the decision not to use an alternate data 

source as a replacement for IURA is still 

sound. The Agency may, however, 

evaluate an alternate source for 

individual chemicals as part of its 

consideration of a particular chemical 

under the new exemption process 

established in the final rule. 

EPA has spent considerable effort and 

resources evaluating other data sources 

that could potentially provide the 

accurate and up-to-date information that 

the Agency needs. A primary 

consideration, as mandated by TSCA, 

was not to subject industry to 

unnecessary or duplicative reporting. 

The exposure information sought under 

IURA is not currently accessible to EPA. 

Although some useful exposure-related 

data exist in some sources, the data are 

insufficient for the purposes to which 

IURA data will be put, typically because 

they are neither timely or detailed 

enough. Without IURA, EPA has 

difficulty efficiently screening potential 

risks posed by approximately 4,000 

higher production chemicals on the 

TSCA Inventory. 

Commenters stated that, if EPA were 

to have specific concerns about 

information collection for substances or 

categories of substances, the selective 

use of TSCA section 8(a) PAIR (40 CFR 

part 712) reporting would be more cost 

effective than requiring all 

manufacturers exceeding a production 

trigger to report manufacturing, 

processing, and use information. EPA 

disagrees with the suggestion that PAIR 

rules would be an efficient or cost 

effective way to compile a data base to 

allow the relatively large-scale risk 

screening of chemicals on the TSCA 

Inventory. PAIR is a very useful data 

collection tool when one or a small 

group of chemicals is targeted for risk 

assessment; however, PAIR is limited 

when collecting information on a large 

number of chemicals. Additionally, the 

PAIR rule has fewer, less definitive data 

elements than IURA, is a one-time 

collection versus the recurring 

collection of IURA, and will not provide 

data sufficient to meet the goals of 

IURA. Use of PAIR rather than IURA 

would force EPA to set risk screening 

priorities based on hazard and 

production volume alone, or in response 

to requests from others. As discussed in 

the document entitled ‘‘A Review of 

Existing Exposure-Related Data Sources 

and Approaches to Screening 

Chemicals: A Response To CMA’’ (Ref. 

27), this approach greatly hinders EPA’s 

ability to make effective and efficient 

risk management decisions. 

EPA plans to continue using existing 

data sources and information sets. For 

example, EPA has used data previously 

collected under PAIR, CAIR, and the 

UEIP in a variety of ways, such as to 

support TSCA section 4 test rule 

analyses, to provide analyses for the 

Agency’s efforts under the OECD SIDS 

program, and in support of international 

efforts (Refs. 18 and 27). However, the 

existing sources are generally best used 

when conducting a more detailed risk 

assessment of a specific chemical of 

concern, rather than preliminary risk 

screening of a relatively large set of 

chemicals. The IURA submissions will 

provide a consistent set of screening 

level exposure data that will allow EPA 

to better identify on a relative basis the 

chemicals of highest priority for further 

risk evaluation. EPA will use IURA data 

to identify those specific chemicals 

which are of potential concern and need 

follow up assessment. For instance, 

IURA exposure data integrated with 

HPV Challenge Program hazard data 

will provide the input needed to 

effectively develop risk-based priorities 

for more detailed assessment of 

chemicals. Once EPA has determined 

that a specific chemical (or group of 

chemicals) has sufficient potential for 

exposure or risk to warrant further 

assessment, the Agency will use the 

other information sources and data 

gathering tools as appropriate. 

4. Can TSCA information be used for 

right-to-know purposes? Some of the 

commenters stated that TSCA does not 

authorize EPA to promulgate IURA 

based in part on EPA’s goal of providing 

‘‘right-to-know’’ information to the 

public, non-governmental entities and 

private organizations. In addition, some 

commenters noted that OSHA and other 

agencies have their own authorities to 

collect information on chemicals. 

TSCA contains many of the principles 

embodied in the right-to-know concept. 

For instance, TSCA section 14(b) 

specifically authorizes EPA to disclose 

health and safety data collected under 

the statute. TSCA section 14 reflects the 

legislative determination that certain 

TSCA data should be available to the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 869

public and interested parties. In 

addition, sections 4, 5, 6, as well as 

section 21, for example, provide 

opportunities for public participation in 

chemical management decisions. 

Participation must be meaningful, and 

to be meaningful the public must have 

access to TSCA non-confidential 

information. 

TSCA was designed in part to address 

the lack of health, safety, and exposure 

information government agencies and 

the public faced in dealing with 

chemicals. See, H.R. Rep. 94-1341 at 6 

(1976), reprinted in Legislative History 

of the Toxic Substances Control Act, at 

414 (1976) (‘‘Present authorities for 

protecting against and regulating 

hazardous chemicals are fragmented 

and inadequate . . . Most significant 

among the deficiencies are . . . (3) No 

authority exists for collection of data to 

determine the totality of human and 

environmental exposure to chemicals.’’). 

TSCA was seen as a way of providing 

federal agencies and the public with 

access to health, safety, and exposure 

data so that the risks of chemical 

substances could be more fully 

evaluated and understood. See, 

Statement of Sen. Hartke, Cong. Rec., 

March 26, 1976 [S4397- 4432], reprinted 

in Legislative History of the Toxic 

Substances Control Act, at 218 (1976) 

(‘‘[T]he essential element of this 

legislation is that it has attempted to 

provide for the individual- not only who 

works, but for the rest of American 

society- the right to know what is in 

store as far as the toxicity of the 

chemicals is concerned.‘‘). Congress 

envisioned TSCA as a tool for providing 

the public and others with health, 

safety, and exposure information about 

chemical substances. 

Finally, TSCA does not limit the use 

or disclosure of data (except if data are 

considered confidential) collected under 

the statute. Congress drafted TSCA in 

part to provide basic health, safety, and 

exposure information to other federal 

agencies, as well as state, local and 

international governments. TSCA 

provides several mechanisms--TSCA 

sections 9, 10, and 12 for example--for 

sharing health and safety data among 

various levels of government. These 

sections again demonstrate TSCA’s role 

as a tool for gathering and disseminating 

information about chemicals. 

B. Comments on Specific Data Elements 

1. Manufacturing information—a. 

Physical form. EPA requested comment 

on its proposed requirement that 

submitters report the physical form of a 

chemical as it leaves the site of 

manufacture. Several commenters 

suggested variations on the specifics of 

physical form reporting, but generally 

agreed with reporting the physical form 

as the chemical leaves the site of 

manufacture. For instance, one 

commenter suggested expanding the 

types of physical forms that can be 

reported. EPA has determined that the 

six categories as proposed (see 

§ 710.52(c)(3)(viii) of the regulatory text) 

will be adequate for risk screening 

purposes, and is not adding additional 

physical form categories at this time. 

Experience with the same six physical 

form categories as part of EPA’s 

exposure screening assessment of over 

20,000 chemicals in its New Chemicals 

Program indicates that the categories of 

physical forms that EPA is using under 

IURA will be adequate. 

Other commenters recommended that 

EPA allow submitters to report more 

than one physical form for each 

reportable substance, because a 

substance may leave a site in more than 

one physical form. EPA agrees with this 

comment and is requiring in this final 

rule that submitters report all physical 

forms of a substance when the substance 

is sent off-site. Reporting on all physical 

forms in IURA will lead to a better 

assessment of exposure to a chemical 

substance. For example, processing a 

fine, nonagglomerating powder could 

result in occupational exposure by 

inhalation of chemical dust. Processing 

the same chemical as a liquid solution 

would eliminate, or at least reduce, the 

inhalation risk (the liquid could become 

an aerosol and be inhaled, depending on 

the processing activity). By combining 

data elements on the physical form of a 

chemical substance, its production 

volume, and the fraction directed to 

each industrial processing or use 

activity, a screening estimate of the 

potential exposure associated with 

manufacturing or processing of a 

chemical substance can be derived. The 

resulting exposure assessment will be 

more representative and less 

conservative than if the physical form(s) 

were unknown. For these reasons, EPA 

is requiring the reporting of all physical 

forms in which a chemical substance 

leaves the manufacturing site. 

b. Concentration. EPA originally 

proposed to require the reporting of 

both maximum and average 

concentrations of each reportable 

chemical substance at the time the 

substance is sent off-site. A number of 

commenters felt that this information 

would be difficult to report for the 

following reasons: Chemicals may be 

used in many product formulations at a 

given plant site and there may often be 

no consistent average or maximum 

concentration of an individual chemical 

across these formulations; such 

information does not reside in any 

currently available data bases and 

would need to be generated for IURA 

reporting (which would be particularly 

difficult with respect to average 

concentration information); and average 

and maximum concentrations may vary 

in product formulations during different 

IURA reporting cycles. Commenters 

suggested that maximum concentration 

information will be misleading if only a 

small amount of the reportable chemical 

substance is made available 

commercially at that concentration, 

while the bulk of the total quantity 

leaving the site has a lower 

concentration. They also indicated that 

determining average concentration 

requires a complicated calculation 

which falls outside the scope of 

‘‘reasonably ascertainable’’ information. 

Commenters suggested that average 

concentration can be calculated by 

product or by the weighted average of 

each product, and each of the 

calculations can result in tremendously 

different answers. 

The Agency has determined that 

average concentration information is not 

critical for purposes of screening level 

exposure assessment and has not 

included this element in this final rule. 

Screening level review is typically 

meant, in part, to serve as a method of 

identifying chemicals that even at their 

maximum concentration are less likely 

to present a risk to human health or the 

environment. Average concentration 

information cannot be used to make 

such a determination. 

EPA recognizes that the concentration 

of an IUR reportable chemical may vary 

from shipment to shipment leaving a 

submitter’s site, or when reacted on-site 

to produce a different chemical 

substance. However, maximum 

concentration is to be reported in wide 

ranges and not specific numbers, 

thereby alleviating the need to 

determine specific concentrations. 

Additionally, EPA does not intend for 

submitters to go to great lengths to 

determine what maximum 

concentration ranges to select for IUR 

reporting. Instead, EPA is simply 

requiring that submitters select a range 

of concentrations from a list of given 

ranges. The ranges from which 

submitters must select are: Less than 1% 

by weight; 1–30% by weight; 31–60% 

by weight; 61–90% by weight, and 

greater than 90% by weight. 

One commenter was concerned that 

EPA did not specify whether it would 

require submitters to conduct specific 

chemical testing or statistical analysis in 

order to report concentration data, or 

whether submitters should merely 

estimate concentrations. In addition, the 

870 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

commenter was unsure whether a 

submitter should report the maximum 

concentration level for each product it 

manufactures/imports, or simply 

estimate the overall maximum 

concentration of the chemical 

substance. EPA recognizes that 

concentration data may vary from 

product to product and from shipment 

to shipment, and may be difficult to 

report in some instances, particularly in 

product formulations. EPA is not 

requiring the reporting of concentrations 

in all products and formulations but 

rather only one maximum 

concentration, regardless of the 

chemical substance’s physical form(s) or 

product formulation(s). Because 

concentration information will be 

reported in ranges and not as individual 

values, this information or at least an 

estimate should be known to or 

reasonably ascertainable by most 

submitters. Submitters are not expected 

to conduct chemical testing or statistical 

analysis beyond any testing or analyses 

already done by the submitter as part of 

normal operations in order to report 

maximum concentration information. 

EPA anticipates that chemical importers 

will frequently receive maximum 

concentration information from their 

suppliers, and manufacturers will 

obtain this information from samples 

analyzed for quality control. This 

information is often found in the 

physical property or hazardous 

constituents sections of the MSDS. 

2. Industrial processing and use. The 

Agency received three comments 

regarding the IFCs to be reported by 

submitters that have plant sites at which 

300,000 lbs. or more of a reportable 

chemical substance are manufactured. 

The first comment questioned how the 

IFCs would apply to chemicals with 

multiple industrial uses. The second 

comment suggested that the Agency 

provide submitters with a ‘‘free 

response’’ option if their industrial 

function is not represented among the 

IFCs. The third comment stated that the 

IFCs proposed by EPA were adequate. 

Submitters are required to report up 

to 10 unique combinations of processing 

or use categories, IFCs, and NAICS 

codes (see § 710.52(c)(4)(i)(A), 

(c)(4)(i)(B), and (c)(4)(i)(C) of the 

regulatory text). In making their 

selection from among the IFC codes, 

submitters must determine which IFC 

best represents the specific industrial 

use of the reportable chemical within a 

given NAICS code/processing and use 

category. The Agency will provide 

examples of how to select which code 

‘‘best represents’’ an industrial use in 

the instruction manual that will be 

available to all submitters (see § 710.59 

of the regulatory text). Submitters may 

report multiple IFCs for the same NAICS 

code, and multiple NAICS codes may be 

paired with the same IFC. Unit II.F.7. 

provides further information on 

reporting industrial processing and use 

information. 

The set of IFCs adopted by EPA at 

§ 710.52(c)(4)(i)(C) encompasses the vast 

majority of uses for chemicals subject to 

IUR reporting. Rather than include all 

possible industrial functions, EPA 

selected categories based upon 

information developed due to other 

Agency programs such as the TSCA 

New Chemicals Program and believes 

that the categories included in this final 

rule are sufficient for initial risk 

screening purposes. One commenter 

suggested that the submitter be allowed 

to supply a ‘‘free response’’ for an 

industrial function that is not on the 

EPA list. However, a ‘‘free response 

option’’ could result in a wide array of 

answers, which EPA would then have to 

group. The Agency believes the 

chemical manufacturer is best equipped 

to determine with which industrial 

function scenario the industrial 

processing and use data should be 

matched. If none of the categories fit, 

however, the submitter could report the 

‘‘other’’ category. By aggregating similar 

uses under a single NAICS and a single 

IFC code, EPA will be able to more 

effectively characterize the risk 

associated with the totality of the 

production of each chemical substance. 

By requiring the submitter to identify 

the appropriate IFC code(s) from the 

provided list, EPA seeks to minimize 

the errors that could occur if the 

Agency, rather than the submitter, 

attempted to aggregate uses other than 

those identified in the prescribed list of 

IFCs. 

3. Commercial and consumer use—a. 

Commercial and consumer product 

categories. In the proposed rule, the 

Agency requested comment on the 

appropriateness of the commercial and 

consumer product categories. 

Commenters had a range of opinions 

about the proposed categories. One 

commenter felt that EPA should adopt 

the use categories used by the European 

Commission (EC) (Ref. 28). Another 

commenter stated that the categories 

appeared to be adequate. A third 

commenter suggested that the ‘‘C-19 

Other’’ category be deleted and that the 

Agency consider requiring the submitter 

to identify the specific use. 

EPA is not changing the commercial 

and consumer product categories at this 

time, although the Agency may revisit 

these categories in the future should a 

need arise for more specific commercial 

and consumer use information. EPA has 

evaluated the EC’s set of use categories 

and has determined that these categories 

blend functional use information with 

end use information. They therefore 

constitute a more complex identification 

system than the one that will be used 

under IURA. For the screening level 

purposes of IURA data, EPA currently 

believes that focusing on end use 

information alone for commercial and 

consumer uses provides the necessary 

level of detail for its screening level 

reviews. EPA is concerned that the use 

of EC’s scheme for the commercial and 

consumer reporting would be overly 

burdensome for the current needs 

identified by EPA, due to the greater 

number of categories (55 EC categories 

versus 19 IURA categories). Further 

guidance on the relationship between 

EC and IURA categories can be found in 

the instruction manual for IURA (see 

§ 710.59 of the regulatory text) (Ref. 9). 

In addition, the EC system does not 

appear to describe the commercial or 

consumer end uses in a way that meets 

the needs identified by EPA and 

targeted by IURA. For example, a 

chemical that is used as a propellant 

would be listed under the category 

‘‘aerosol propellants’’ using the EC 

system. Such a listing would not 

provide the Agency with the 

information it needs about the type of 

commercial/consumer product in which 

the submitter uses the propellant (e.g., 

paint, a lubricant). For more information 

on EPA’s commercial and consumer 

category analysis, see the document 

‘‘Inventory Update Rule (IUR) Technical 

Support Document Selection of 

Consumer and Commercial End-Use 

Categories’’ (Ref. 29). EPA will provide 

examples of the types of products that 

fit into its commercial and consumer 

product categories in the instruction 

manual that will be made available to 

all submitters (see § 710.59 of the 

regulatory text). 

EPA considered requiring submitters 

to identify the specific use of the 

product, rather than the use a 

miscellaneous ‘‘Other’’ category. 

However, the Agency prefers to require 

submitters to choose from among the 

commercial and consumer product 

categories provided at 

§ 710.52(c)(4)(ii)(A) of the regulatory 

text in order to encourage manufacturers 

to more carefully consider the listed 

categories, as opposed to being allowed 

to provide their own specific 

description. In this manner, EPA can 

more effectively assign chemicals to the 

correct categories, and avoid guessing 

the appropriate categories because the 

Agency believes the chemical 

manufacturer is best equipped to 

determine with which commercial or 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 871

consumer category their product use 

best fits. By aggregating similar product 

categories, EPA will more effectively 

characterize the risk associated with the 

totality of the use of each chemical 

substance. Requiring the submitter to 

identify the appropriate product 

categories from the provided list will 

minimize the errors that could occur if 

the Agency, rather than the submitter, 

attempted to aggregate uses other than 

those identified in the prescribed list of 

product categories. 

b. Non-TSCA end uses. Three 

commenters requested that EPA not 

only continue to exempt chemicals that 

are manufactured only for non-TSCA 

purposes (such as pesticides, drugs, 

cosmetics, etc.) from all IURA reporting, 

but also exempt manufacturers of IURAreportable TSCA chemicals from the 

requirement that non-TSCA 

downstream uses be reported (such as 

use of a TSCA chemical by a 

downstream processor in making a 

pesticide, etc.). These commenters 

assert that EPA does not have authority 

under TSCA to implement requirements 

of this sort. 

EPA agrees that substances that are 

manufactured only for non-TSCA 

purposes, as described in TSCA section 

3(2)(B), are exempt from all TSCA 

requirements and are not subject to 

reporting under IURA. Therefore, 

substances that are intended at the time 

of manufacture to be used for non-TSCA 

purposes (e.g., as a pesticide, as a drug) 

do not have to be reported. 

The Agency also agrees that 

submitters under IURA will not be 

required to report on the non-TSCA 

downstream uses of the TSCA 

chemicals that they manufacture. It is 

important to note that EPA was able to 

reach this conclusion without reaching 

the issue of whether it has the authority 

to require such reporting. Descriptions 

of IFCs (see § 710.52(c)(4)(i)(C) of the 

regulatory text) have been clarified to 

reflect the fact that they only include 

TSCA uses. For example, one of the 

IFCs is called ‘‘Agricultural chemicals 

(non-pesticidal).’’ The consumer and 

commercial product categories (see 

§ 710.52(c)(4)(ii)(A) of the regulatory 

text) are also restricted to TSCA uses. 

An example of one of these categories is 

‘‘Lawn and garden products (nonpesticidal).’’ This category includes 

chemicals such as compressed gasses in 

delivery systems for many pesticides 

used indoors and outdoors, and other 

intermediates, but does not include 

pesticides. Additionally, many lawn 

amendments such as fertilizers contain 

chemicals that may be regulated under 

TSCA, (e.g., surfactants). 

c. Exempt reporting of use 

information for chemicals in articles. 

Two commenters believed that to the 

extent a submitter’s reportable chemical 

is used in an article, the submitter 

should be exempt from the reporting of 

consumer and commercial end-use 

information (i.e., § 710.32(c)(5) of the 

proposed regulatory text). The 

commenters stated that there is no 

reason to believe that consumer 

exposure will result from chemicals in 

articles. 

EPA does not agree that 

manufacturers of chemicals that are 

later incorporated into articles should 

be exempt from the reporting of 

consumer and commercial end-use 

information. Certain exposures do result 

from chemicals incorporated in articles. 

For example, potential dermal and 

inhalation exposures occur from 

chemicals incorporated into products in 

the category ‘‘fabrics, textiles and 

apparel.’’ Specific cases, such as 

formaldehyde from pressed wood 

products used in mobile homes or 

chlorinated flame retardants used on 

children’s sleep wear, also demonstrate 

that potentially harmful exposures can 

occur from chemicals incorporated into 

articles. 

d. Usefulness of percent production 

data and maximum concentration data. 

A commenter felt that in the case of 

consumer products in particular, it is 

unclear whether the percent production 

data and maximum concentration data 

required under § 710.32(c)(5)(i)(B) and 

(c)(5)(i)(C) of the proposed regulatory 

text would add any material information 

to the production volume information 

already required under the existing IUR. 

The commenter stated that the volumes 

of chemicals they will report as having 

been manufactured, and for which they 

will report maximum concentration 

information, are in the products the 

commenter sells. Therefore, the Agency 

will already have the needed production 

volume and concentration information 

and does not need to collect these 

particular data elements for consumer 

products. 

Production volume and concentration 

information reported at the 

manufacturing site is typically different 

information than percent production 

volume and concentration in consumer 

and commercial categories. Often 

manufacturers will sell a chemical for 

multiple uses, in a variety of products, 

or the chemical will be used multiple 

times before reaching the consumer/

commercial product. For instance, a 

manufacturer may report that a 

chemical is used in three different 

commercial and consumer product 

categories—20% of the manufactured 

production volume is used in category 

A, 35% in category B, and 45% in 

category C. Additionally, while the 

manufacturer sells the product at a 

certain concentration (say 90%), a final 

product may have a different 

concentration. For instance, the final 

product may contain only 5% of the 

chemical. The resulting potential 

exposure scenario associated with such 

a product would be very different from 

a scenario where the concentration in 

the final product is 90%. The Agency, 

therefore, is retaining the commercial 

and consumer percent production 

volume and maximum concentration 

data elements. 

4. General data elements comments—

a. Workers who are ‘‘reasonably likely to 

be exposed’’ to a reportable chemical. 

EPA requested comment on alternative 

definitions of ‘‘potentially exposed 

worker’’ and ‘‘reasonably likely to be 

exposed.’’ Specifically, EPA requested 

comment on whether OSHA definition 

of ‘‘employee’’ in its hazard 

communication standard (29 CFR 

1910.1200(c)) is more appropriate for 

use in IURA. The hazard 

communication standard defines 

‘‘employee’’ as a worker who may be 

exposed to hazardous chemicals under 

normal operating conditions or in 

foreseeable emergencies. Workers such 

as office workers or bank tellers who 

encounter hazardous chemicals only in 

non-routine, isolated instances are not 

covered. OSHA’s hazard 

communication standard also defines 

‘‘exposure’’ or ‘‘exposed’’ as the 

exposure of an employee to a hazardous 

chemical in the course of employment 

through any route of entry (inhalation, 

ingestion, skin contact or absorption, 

etc.) and includes potential (e.g., 

accidental or possible) exposure. 

One commenter stated that OSHA’s 

definition of an employee is appropriate 

to identify persons reasonably likely to 

be exposed to chemical substances. This 

commenter stated that the Agency 

should broaden the definition of 

exposure in IURA to include potential 

(accidental or possible) exposures to 

chemical substances which workers 

may experience in the course of their 

employment. This commenter also 

stated that this is what worker exposure 

entails in the real world and to exclude 

some portion of those worker exposures, 

as EPA proposed, is inappropriate. A 

second commenter felt that persons who 

could be exposed to a chemical 

substance in foreseeable emergencies 

should be included in EPA’s new 

definition for persons who are 

reasonably likely to be exposed to a 

reportable substance. 

872 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

EPA has determined that the OSHA 

definition of ‘‘employee’’ does not 

provide a more appropriate standard 

than the one proposed and finalized in 

IURA. Whereas OSHA wanted to 

provide all persons who could 

foreseeably be exposed to a chemical 

substance with knowledge of the 

potential hazards of that chemical, EPA 

is seeking to specifically identify those 

persons routinely exposed to chemical 

substances and for whom engineering 

controls and personal protective 

equipment are likely to provide the 

greatest benefit. The definition adopted 

by EPA for a person ‘‘reasonably likely 

to be exposed’’ in this rule will target 

those individuals who routinely have 

the potential to be exposed to chemical 

substances, and for whom chronic risks 

are greatest. This definition provides 

more useful and realistic information for 

the risk screening purposes for which 

EPA envisions IURA data will be used. 

b. Personal protective equipment. EPA 

requested comment on whether the 

Agency should collect information on 

the use of PPE during the manufacture 

of chemicals reported under IURA. 

Several commenters stated that EPA 

should not collect PPE information for 

the purposes of risk screening. After 

reviewing these comments, EPA agrees 

that collecting information on the 

availability of PPE would not enhance 

the initial risk screening process, and 

has determined that this data element 

should not be added to the IUR as part 

of this rulemaking. Because EPA cannot 

ensure that protective equipment will be 

available to all employees and, if 

available, will be used properly in a 

well managed hygiene program, the 

potential risk encountered in the 

manufacture, processing, or use of a 

chemical substance is initially assessed 

by EPA in the absence of PPE 

information. The IURA is designed 

primarily to collect only screening level 

information. Inclusion of PPE in risk 

assessment would require collection 

and integration of location-specific 

information on physical conditions and 

the PPE used, and would greatly 

complicate the risk assessment. This 

type of information is more likely to be 

included in assessments more detailed 

than the initial risk screening 

assessment for which IURA information 

will be used. 

A commenter suggested that EPA use 

PPE information as a way to submit 

lower estimates for various IUR data 

elements, such as the number of 

workers. For the reasons provided in the 

previous paragraph, EPA will not use 

PPE information to lower the estimates 

of workers reasonably likely to be 

exposed. Because the reporting of PPE 

information would not contribute to the 

initial risk screening process and would 

impose an additional burden on persons 

reporting under IUR, EPA is not 

including information on PPE in the 

reporting requirements for this rule. 

c. Metric system reporting. Under IUR, 

data are currently reported using the 

U.S. customary system of measurement 

units (e.g., pounds and yards). EPA 

requested comment on changing 

reporting requirements to require metric 

system reporting instead (e.g., kilograms 

and meters). Two commenters suggested 

that EPA convert to metric system units 

or at least give submitters the option of 

using either metric or U.S. customary 

units. One commenter requested that 

EPA continue to require the use of U.S. 

customary units or give submitters the 

option of reporting in either metric or 

U.S. customary units. EPA has decided 

to continue to require the use of the U.S. 

customary system because at least in the 

short term, this allows the IUR data base 

to remain compatible with other Agency 

data bases, especially TRI, which also 

typically use the U.S. customary system. 

EPA believes allowing for reporting 

using either the U.S. customary or 

metric systems of units would create 

confusion and increase reporting and 

administrative error. EPA may revisit 

this issue in future IUR amendments. 

C. Reporting Universe Comments 

EPA received a variety of comments 

concerning which chemicals and sites 

should be subject to reporting and 

recordkeeping requirements. 

1. Chemical categories undergoing 

changes in reporting status. In the IURA 

proposal, EPA created exemptions from 

reporting for several groups of 

chemicals that would otherwise be IURreportable. The IUR currently contains 

full reporting exemptions for inorganic 

chemicals, polymers, microorganisms, 

and naturally occurring chemicals. EPA 

proposed to modify these exemptions 

by: (1) Requiring partial reporting for 

inorganic chemicals in lieu of the 

existing full exemption; (2) creating a 

partial reporting exemption for chemical 

substances termed ‘‘petroleum process 

streams’’ for purposes of reporting 

under IURA; and, (3) creating a full 

exemption for certain forms of natural 

gas. EPA also requested comment on the 

creation of additional exemptions, but 

asked that commenters provide a clear 

supporting rationale for creating such 

exemptions. 

a. Inorganic chemicals - Many 

commenters submitted comments about 

the removal of the full exemption for 

inorganic chemicals. 

EPA originally created the inorganic 

chemical exemption because it believed 

that the hazard potential of many 

inorganics was ‘‘relatively wellestablished’’ (50 FR 9944, 9947, March 

12, 1985) and that hazard information 

alone was sufficient for prioritization 

within inorganic chemical substance 

risk assessments. EPA now intends to 

increase the consideration given to 

exposure, another component of risk, in 

screening chemicals and in setting 

priorities for risk assessment and risk 

management activities. The Agency no 

longer believes that chemical hazard 

information alone provides a sufficient 

basis for prioritization for these 

purposes. As a result, the former basis 

for this exemption is no longer 

applicable. 

i. Why does the Agency need basic 

IUR information on inorganic chemical 

substances? During interagency review 

prior to proposal it was suggested that 

EPA first collect the IUR information in 

§§ 710.52(c)(1), (c)(2), (c)(3), and 710.58 

of the regulatory text (Parts I and II of 

the revised Form U) on inorganic 

substances before collecting the 

processing and use information in 

§ 710.52(c)(4) of the regulatory text (Part 

III of the revised Form U). It was 

thought that partial reporting would 

allow EPA to become generally familiar 

with the production volumes of 

inorganic chemicals, and would permit 

manufacturers of these substances to 

familiarize themselves with the most 

basic IUR requirements before being 

required to comply with the processing 

and use data requirements. Many 

commenters stated that EPA had not 

demonstrated the practical utility of 

collecting basic information on 

inorganic substances. Other commenters 

felt the Agency should collect these data 

and that inorganic chemicals should not 

have had an exemption under IUR. 

EPA uses basic IUR information in a 

wide variety of ways (as described in 

Units II.C. and E.) and expects the basic 

IUR information on inorganic chemicals 

to be used in similar ways. For example, 

EPA used IUR information in the HPV 

Challenge Program (see http://

www.epa.gov/opptintr/chemrtk/

volchall.htm) to identify chemicals 

produced in aggregate national volumes 

of one million pounds or more. The 

HPV Challenge Program has not been 

able to include inorganic chemicals as 

EPA did not have the necessary 

production volume information on the 

inorganic chemicals produced in or 

imported into this country. 

Additionally, the TSCA Interagency 

Testing Committee (ITC) has 

encountered difficulties in its attempts 

to identify inorganic chemicals for 

recommendations to EPA for testing or 

other further evaluations due to the lack 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 873

of even the most basic IUR data for these 

chemicals (Ref. 30). 

ii. Why is EPA phasing in reporting 

for inorganic chemical substances? EPA 

requested comment on completely 

removing the inorganic chemicals 

exemption, requiring reporting of all of 

IURA information, including the 

information described in § 710.52(c)(4) 

of the regulatory text on inorganic 

chemicals manufactured in volumes of 

300,000 lbs. or more at a site. Some 

commenters supported phased-in 

reporting of this information, where 

EPA would maintain a partial 

exemption (i.e., requiring the reporting 

of all of IURA information except the 

information in § 710.52(c)(4)) for the 

first submission period only and would 

require full reporting in subsequent 

submission periods. EPA agrees with 

this approach because it provides new 

submitters with an opportunity to 

become familiar with basic IUR 

reporting, allows EPA to become 

familiar with the current inorganic 

chemical industry, and provides basic 

production information in the first 

submission period. Requiring full 

reporting for inorganic chemicals in 

subsequent submission periods provides 

EPA with the processing and use 

exposure-related information needed to 

continue efforts begun with the first 

reporting year information. 

EPA’s primary use of both the basic 

data collected during the first 

submission period and the additional 

exposure-related data collected during 

subsequent submission periods will be 

to identify priority TSCA chemicals for 

more detailed information gathering, 

risk assessment, and risk management 

in order to develop targeted programs to 

protect human health and the 

environment. Screening chemical risks 

generally requires a combination of both 

hazard and exposure information. The 

absence of exposure-related data for 

inorganic chemicals, beyond even the 

basic production data collected during 

the first submission period under IURA, 

would severely limit the usefulness of 

IURA data for risk screening. See Unit 

III.A.1. for further discussion of 

additional uses of IURA exposurerelated data. 

While some commenters supported 

the phasing-in approach, other 

commenters suggested that EPA review 

the information collected on inorganic 

chemicals under the partial exemption 

and collect additional information on 

these chemicals through a future 

rulemaking. Commenters suggested a 

variety of ways to collect this additional 

information, including specifically 

listing chemicals that would be subject 

to future IUR collections or using PAIR. 

However, EPA’s experience with using 

information from other sources or 

collecting information using PAIR has 

demonstrated that this approach is 

insufficient, as discussed in Unit III.A.3. 

iii. Why doesn’t EPA use already 

available information on inorganic 

chemical substances? Commenters 

stated that the inorganic chemicals data 

that EPA needs to conduct screening 

level risk assessments are already 

available from a variety of sources, 

including the USGS’s annual reports on 

mineral production, health assessment 

documents prepared by the Agency for 

Toxic Substances and Disease Registry, 

studies by OSHA, the TRI compiled by 

EPA, and literature published by trade 

associations. EPA closely examined 

these data sources, and concluded that, 

while useful, these sources are 

inadequate to meet the Agency’s data 

needs for inorganic chemicals. 

Some of the suggested data sources 

pertain to naturally occurring 

substances which are exempted from 

reporting by a provision in IUR that EPA 

has not proposed to change, i.e., 40 CFR 

710.26(a)(3), which is codified as 

§ 710.46(a)(3) for IURA. Many of the 

remaining data sources identified by 

commenters pertain to metallic alloys or 

studies of a single metal species and do 

not include information on the 

multiplicity of pigments, flocculating 

agents, oxidants, photochromic salts, 

flame retardants, catalysts, and other 

inorganic compounds for which data are 

sought through IURA. In some cases, the 

data sources are one-time collections of 

information and therefore would not 

provide current information on the 

inorganic chemical industries. Others, 

although revised from time to time, do 

not identify the chemicals with 

sufficient specificity, do not identify the 

manufacturing site or a technical 

contact, and/or do not provide 

information on the use of the inorganic 

chemical. In sum, the data sources 

identified by commenters and by EPA 

are not sufficient to provide the 

information sought through IURA. EPA 

has consulted with USGS to investigate 

whether the USGS annual survey of 

approximately 80 minerals could be 

amended to better serve as a source for 

use and exposure data that could be 

used in place of IURA for those minerals 

(Ref. 31). EPA plans to identify and 

initiate dialogues with other federal 

agencies about collection activities that 

have the potential for generating 

additional federal paperwork burden 

reductions, particularly related to the 

IURA. The new exemption process 

established in the final rule provides an 

opportunity for EPA to consider 

alternate sources of information for 

individual chemicals. EPA is extremely 

sensitive to the PRA’s directive for 

federal agencies to reduce unnecessary 

burden, and will continue to 

consistently strive to find areas in 

which burden can be decreased to the 

maximum extent practical, as well as 

carefully evaluate new or revised 

information collections to ensure that 

the Agency’s informational needs are 

met with the minimal burden possible. 

Although none of the identified 

alternate sources appear to be sufficient 

to replace IURA, EPA believes that an 

alternate information source could 

provide sufficient information for a 

particular chemical. EPA is also willing 

to work with other agencies to perhaps 

resolve differences in the various 

information collection activities in an 

effort to reduce overall reporting burden 

on industry. 

Additional discussion of the 

applicability of available data sources is 

found in ‘‘Summary of EPA’s Responses 

to Public Comments Submitted in 

Response to Proposed TSCA Inventory 

Update Rule Amendments’’ (64 FR 

46772) (Ref. 18) and in ‘‘Inorganic 

Chemicals: Sources of Information 

Suggested by Commenters to the 

Proposed Inventory Update Rule 

Amendments’’ (Ref. 32). 

b. Partial exemption for petroleum 

process streams. EPA proposed a partial 

exemption from IURA reporting for 

certain chemical substances that the 

Agency is calling ‘‘petroleum process 

streams’’ for purposes of IURA and 

requested comment on duplication of 

reporting under the information 

collections conducted by DOE’s Energy 

Information Administration (EIA) 

through EIA forms EIA 810, EIA 816, 

and EIA 64A. Operators of all operating 

and idle petroleum refineries, blending 

plants, or blending terminals must 

complete form EIA 810 to provide a 

monthly refinery report on their 

operations to DOE. Operators that 

extract liquid hydrocarbons from a 

natural gas stream and/or separate a 

liquid hydrocarbon stream into its 

component products must complete 

form EIA 816 to provide a monthly 

natural gas liquids report to DOE. 

Operators of domestic natural gas 

processing plants must complete form 

EIA 64A to provide an annual report of 

the geographical location and geological 

formation of natural gas liquids 

production to DOE. In the IURA 

proposal, EPA stated its intention to 

work with DOE to identify potential 

duplication and to further investigate 

the potential usefulness of DOE’s 

information collections in fulfilling 

EPA’s statutory obligations under TSCA. 

874 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

One commenter stated that EPA could 

use the DOE data along with other 

supplemental information sources to 

generate the type of petroleum process 

stream information that IURA proposed 

to collect. Several commenters also 

stated that the proposed IURA reporting 

would be duplicative of DOE reporting 

for certain chemicals, particularly fuel 

oil #2 and kerosene, and that EPA 

should therefore fully exempt those 

chemicals from reporting under IURA. 

EPA has investigated the information 

collection conducted by DOE through 

EIA forms EIA 64A, EIA 810, and EIA 

816, and has determined that chemical 

substances are not sufficiently identified 

for EPA’s purposes in the DOE reports. 

For example, many of the chemical 

substances in the DOE reports are 

identified by nomenclature other than 

the CAS nomenclature used by EPA for 

TSCA purposes, are identified in broad 

categories, or are not identified by CAS 

number. Many of the chemical names 

used by DOE are either generic or 

represent groups of chemicals. For 

example, distillate fuel oil, reported on 

EIA Form 810, may refer to several 

chemicals on the TSCA Inventory, such 

as fuel oil #2, fuel oil #4, or fuel oil #6. 

This lack of specific identifier 

information means that EPA and others 

cannot distinguish which information 

collected by DOE is attributable to 

which chemical. More specific 

identification is needed to attribute the 

appropriate hazard and physical and 

chemical properties to the petroleum 

stream. 

The DOE information also lacks 

important exposure components and 

identifiers that are necessary for 

exposure and risk screening activities. 

For example, the DOE information does 

not contain the number of workers 

reasonably likely to be exposed to a 

chemical or the maximum concentration 

of the chemical. In addition, it may be 

difficult to discern from the DOE data if 

a petroleum process stream is used as a 

solvent in a consumer product or as a 

combustible fuel. This is an important 

distinction because the likelihood of 

exposure to a petroleum process stream 

depends on its use. These data are 

needed elements that will fill a vital 

data gap in chemical risk screening. 

Several persons commented that there 

is no need to collect exposure-related 

data for petroleum process stream 

manufacturing operations because 

physical hazards existing at many sites 

currently necessitate extensive safety 

precautions that limit worker exposure. 

Discussed in more detail in Unit II.F.1.b. 

c. Exemption for certain forms of 

natural gas. EPA proposed that six 

natural gas substances be fully exempt 

from reporting under IURA. In addition, 

EPA requested comment on whether 

reporting for the six substances should 

be required in upcoming submission 

periods and whether they were the 

appropriate natural gas substances for 

inclusion in the proposed exemption. 

Commenters expressed support for 

the full exemption of the six natural gas 

streams listed in the proposed IURA. 

These commenters also recommended 

adding fuel oil #2, kerosene, methane, 

ethane, propane, butane, pentane, and 

hexane, and liquefied natural gas to the 

full exemption list. The commenters 

stated that an exemption is warranted 

for these chemicals because: (1) DOE 

already requires annual and monthly 

reports for the chemicals which contain 

the same information requested by EPA; 

(2) the chemicals are similar in chemical 

composition to the six chemicals EPA 

proposed to exempt; (3) their chemical 

structure and identity remain the same 

throughout processing; (4) a similar 

amount of data is available for these 

chemicals as for the six chemicals EPA 

proposed to exempt; and, (5) a similar 

number of TSCA reports are filed for 

these chemicals as for the six chemicals 

EPA proposed to exempt. 

EPA has retained the exemption for 

certain forms of natural gas as proposed. 

Adequate IUR information has been 

collected on the six chemical substances 

to fulfill EPA’s and other IUR 

information users’ current needs. EPA 

will take action to revoke this 

exemption if circumstances warrant in 

the future. 

Liquefied natural gas, which is a form 

of natural gas (CAS No. 8006–61–9), is 

covered under the natural gas 

exemption. EPA did not include ethane, 

methane, propane, butane, other 

paraffinic hydrocarbons, fuel oil #2, or 

kerosene in the list of substances 

included in the natural gas exemption 

because they are not just isolated 

components of natural gas but are also 

chemical substances which can be 

produced from other source materials, 

chemical process streams, feedstocks, or 

reactants. These alkanes have significant 

uses in chemical manufacturing, 

including the production of ammonia 

and methanol from synthesis gas 

derived from methane, thermal cracking 

of ethane/propane mixtures to produce 

ethylene, and vapor-phase oxidation of 

n-butane to produce maleic anhydride. 

At present, there is not a sufficient basis 

to conclude that data on all significant 

uses of these alkanes are adequate. 

EPA did not rely on the data 

contained in the DOE reports discussed 

in Unit III.C.1.b. in its creation of the 

new exemption for certain forms of 

natural gas. While some useful 

information for these chemicals is 

included in the DOE reports, it is 

insufficient for exposure or risk 

screening (see Unit III.C.1.b.). 

Downstream processing and use 

exposure information collected through 

IURA for these chemicals will not 

duplicate information collected by DOE. 

2. Exemption of additional groups of 

chemicals from IURA reporting or from 

the reporting of specific data elements. 

EPA requested comment in the 

proposed rule on the selection of 

chemicals that might be exempted from 

reporting under IURA and on specific 

criteria to distinguish these chemicals 

from those that remain subject to 

reporting. EPA received many industry 

comments in favor of creating a new 

exemption for chemicals that may be 

considered to be ‘‘low priority,’’ but 

commenters did not indicate standard 

criteria for establishing such 

exemptions. However, in response to 

these comments and comments received 

during interagency review, EPA created 

a partial exemption (i.e., an exemption 

from the reporting of information 

required under regulatory text 

§ 710.52(c)(4)) for certain chemicals for 

which the collection of processing and 

use information is currently of ‘‘low 

interest.’’ This new partial exemption is 

intended to improve IURA’s efficiency 

and effectiveness. EPA has established a 

process by which future changes to the 

chemicals included in the partial 

exemption can be made after careful 

examination of the totality of 

information available for the chemical 

substance, including but not limited to 

the considerations provided in 

§ 710.46(b)(2) and discussed in Unit 

II.F.1.d. This partial exemption also 

provides additional benefits in reducing 

the potential reporting burden of IURA 

for certain manufacturers of these 

chemicals. The inclusion of a chemical 

substance under this partial exemption 

does not address the potential risks of 

a chemical. This partial exemption is 

solely intended to provide a tool to 

assist the Agency in better managing the 

collection of processing and use 

information under IURA. See Unit 

II.F.1.d for a discussion of the 

exemption and the process to add or 

remove chemical substances from the 

exemption. 

In addition, commenters suggested 

classes of chemicals for exemption. EPA 

has determined that none of these 

suggested exemptions can be 

implemented at this time, as described 

in the remainder of this section. 

a. HPV chemicals. A number of 

commenters stated that industry is 

already providing EPA with sufficient 

hazard data via the HPV Challenge 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 875

Program (see http://www.epa.gov/

opptintr/chemrtk/volchall.htm), as well 

as exposure data through other 

voluntary programs (e.g., International 

Council of Chemical Associations 

(ICCA) data collections and UEIP). 

Therefore, providing exposure-related 

information on HPV chemicals via IURA 

would be duplicative and unnecessary. 

The Agency recognizes that a variety 

of voluntary and regulatory efforts to 

collect hazard data are underway, such 

as the voluntary HPV Challenge 

Program. However, the scope and 

expected output from the HPV 

Challenge Program differ markedly from 

those anticipated under IURA. The HPV 

Challenge Program centers on providing 

basic hazard data for HPV chemicals, 

most of which will also be IURAreportable chemicals. The IURA focus is 

on gathering exposure-related 

information for moderate and high 

volume chemicals in a wide range of 

industrial operations, involving 

multiple sites and covering 

manufacturing, processing, and use of 

the chemical substances. 

The Agency is unable to limit its 

IURA information collection efforts to 

HPV chemicals alone, for several 

reasons. The Agency could not know 

definitively which chemicals are HPV 

substances in any particular IURA 

reporting cycle as of that reporting year. 

A chemical substance meets the criteria 

for an HPV chemical by meeting a one 

million pound national production 

volume threshold, based upon the 

aggregate production volume in the 

nation (as reported to IUR). Production 

volumes can vary significantly over a 4–

year reporting cycle, and it is not 

uncommon for chemicals to rise above 

or fall below the HPV threshold each 

reporting cycle. For instance, EPA used 

1990 IUR reporting to identify 

approximately 2,800 HPV substances. 

An additional 500 substances which 

were not HPV chemicals in 1990 were 

identified as being HPV via the 1994 

IUR production volume data. The IURA 

collection could be limited to the HPV 

Challenge Program chemicals (i.e., the 

baseline set of chemicals for the 

program, consisting of chemicals that 

were HPV according to 1990 IUR 

information). However, that restricts 

IURA’s ability to supply screening level 

exposure information to only those HPV 

chemicals. This would severely limit 

the usefulness of IURA over time, as the 

universe of chemicals that were HPV in 

1990 will not be the same universe of 

chemicals that are HPV in future years, 

and would compromise the Agency’s 

broader responsibility for risk screening. 

b. Existing Chemicals Program ‘‘low 

concern’’ chemicals. Commenters 

recommended that the chemicals 

previously determined by EPA to be of 

low concern via the Existing Chemicals 

Program be exempt from reporting 

under IURA. However, commenters did 

not provide sufficient criteria that 

would clearly distinguish exempted 

chemicals from others subject to IUR 

reporting. EPA cannot create 

exemptions without a clear basis or 

justification. During the development of 

these amendments, EPA considered 

exempting chemicals previously 

reviewed by the Existing Chemicals 

Program, but was unable to develop 

standard criteria for such an exemption 

(See Ref. 33 and Unit IX.3. of the 

proposal preamble, at 64 FR 46794). 

Under the Existing Chemicals Program, 

no standard criteria were used for 

determining which chemicals were 

lower priority, because in the course of 

the program many different chemicals 

involve unique risk assessment or risk 

management issues. For example, many 

chemicals were analyzed within a 

specific use, and other uses were not 

examined. As an alternative to this 

approach, EPA developed a partial 

exemption for chemicals which are 

determined to be of low current interest 

for purposes of IURA processing and 

use information reporting, based on 

considerations described in Unit 

II.F.1.d., and identified an initial list of 

chemicals currently covered by the 

partial exemption (Ref. 5). 

c. Organization for Economic 

Cooperation and Development (OECD) 

chemicals. Commenters recommended 

that the chemicals for which EPA has a 

minimum set of hazard and exposure 

data, such as OECD’s SIDS chemicals 

that have completed the SIDS process, 

be exempt from reporting under IURA. 

Commenters also suggested that 

chemicals in the International Council 

of Chemical Association (ICCA) 

screening level data collection programs 

be included in this exemption. 

EPA disagrees that data collection 

efforts through the OECD and ICCA 

programs provide sufficient exposure 

information to replace IURA 

information. Data collection efforts 

under the auspices of OECD and ICCA 

concentrate on the development of 

hazard assessments and generally 

provide only a small fraction of the 

exposure-related data called for under 

IURA. A goal of the ICCA Program is to 

process chemical cases through OECD’s 

HPV SIDS Program, which develops 

hazard information for the program 

chemicals. As hazard data do not 

change from year to year, the data 

collection supports a one-time report. 

The IURA will provide current 

exposure-related information for risk 

screenings and preliminary assessments. 

Exposure information, as collected 

under IURA, will vary from reporting 

year to reporting year and therefore 

needs to be collected on a continuing 

basis. While the OECD HPV SIDS 

Program does not specifically disallow 

the collection of exposure information, 

the program does leave such collection 

to the discretion of the sponsor country 

(Ref. 34). Exposure information 

available via SIDS is therefore generally 

not specific to U.S. uses and concerns. 

d. Metals. Various commenters stated 

that either metals as a group, or specific 

metals such as zinc and copper, should 

be granted special consideration for 

IURA reporting. Several commenters 

asserted that providing information on 

maximum concentrations is 

unnecessary for the metals, because they 

will generally have close to 100% 

concentrations when they leave the 

manufacturing site or whenever they are 

present in consumer or commercial 

products. Further, commenters indicate 

that the only exposure potential for 

these substances in commercial or 

consumer products will be dermal (not 

via other routes such as inhalation or 

ingestion). Additionally, a commenter 

stated that workers ‘‘in proximity’’ to or 

handling solid metal articles should not 

be considered to be exposed for 

reporting purposes, because the metal is 

in a form in which neither inhalation 

nor dermal exposure will occur. Other 

commenters believed that any IUR 

reporting on metals is unnecessary 

because ample information on metals 

production and exposure potentials is 

already available from other sources, 

such as the USGS, or because specific 

metals, such as copper and zinc, are 

beneficial to human health and 

therefore should be of no exposure 

concern. 

Metals present some unique issues 

regarding exposure potential, and the 

information that will be collected under 

IURA on metals will do much to 

improve EPA’s and others’ knowledge 

about the uses and exposures associated 

with these chemicals. Not all metalcontaining products are pure metal. For 

example, metal powders used in fine 

arts, metal pastes used in repairs, and 

commercial metallic paints contain 

varying percentages of metals. In 

addition, although some metals in trace 

quantities, such as chromium, are 

essential nutrients to plants and/or 

animals, in greater exposure 

concentrations these same metals can be 

harmful. 

Because metals are ubiquitous and 

can be present in a variety of physical 

forms, different routes of exposure are 

possible. Chronic exposure to solutions 

876 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

containing metals such as nickel may 

result in contact dermatitis. Milling 

metal parts containing antimony and 

beryllium creates dusts which, if 

inhaled, can result in acute chemical 

pneumonitis. Inhalation of fumes 

containing chromium resulted in an 

elevated incidence of bronchial 

carcinoma among workers in the U.S. 

chromate industry before the source of 

the exposure was recognized and 

corrected. Exposure by ingestion is of 

concern for metals that may enter water 

sources following improper disposal of 

used materials, for example. The use of 

cadmium in batteries for portable 

electronic devices, including computers, 

is increasing; long-term exposure to 

cadmium has a potential to cause 

kidney, liver, bone, and blood damage. 

EPA has exempted submitters that 

would otherwise be subject to IUR 

reporting from reporting with respect to 

chemicals that are imported in the form 

of an article (see 40 CFR 710.30(b) and 

§ 710.50(b) of the regulatory text). 

However, submitters that manufacture a 

reportable chemical and incorporate it 

into an article will continue to be 

subject to reporting under the IURA. 

The Agency reviewed a number of 

sources that provide information about 

metals production and characteristics, 

including USGS data specifically noted 

by commenters (Ref. 32). The 

information, although useful for 

depicting global mining and production 

of the major commercial metals, is not 

comparable to the national scale and 

domestic exposures data that will be 

provided under IURA. Further, because 

metals are subject chemicals in many 

EPA programs, including the Great 

Lakes Binational Toxics Strategy; the 

revised drinking water standards; the 

revised emission standards for 

secondary metal refinishers; and the 

Waste Minimization National Plan, 

current information about domestic 

metals production and use will benefit 

many EPA offices and programs. 

As indicated previously, EPA will be 

reconsidering individual chemicals for 

applicability under the new partial 

exemption, and plans to identify and 

initiate dialogues with other federal 

agencies about collection activities that 

have the potential for generating 

additional federal paperwork burden 

reductions, particularly related to the 

IURA. 

e. Other chemical groups. 

Commenters suggested EPA exempt a 

variety of additional groups of 

chemicals from either full or partial 

IURA reporting. These groups included 

fossil fuel combustion byproducts such 

as coal combustion products; fertilizers; 

substances encapsulated in a polymer 

matrix; pesticides; and certain 

chemicals outside the scope of TSCA 

jurisdiction (such as drugs). 

Commenters stated that exposures 

associated with fossil fuel combustion 

byproducts are already well known, 

and, with information currently being 

submitted to EPA and other federal 

organizations such as DOE, well beyond 

the amount needed for ‘‘basic 

screening.’’ Commenters argued that 

reporting on these byproducts under 

IURA would be duplicative (therefore 

unnecessary) and overly burdensome, 

especially because these chemicals are 

considered ‘‘beneficially used in an 

environmentally sound manner’’ by 

EPA’s Office of Solid Waste (OSW). A 

parallel argument was made for 

fertilizers, in that certain commenters 

consider them to be well-characterized 

and generally ‘‘safe.’’ Similarly, a 

commenter believed encapsulated 

substances are of little concern, due to 

low exposure potentials for the 

encapsulated chemicals, as implied by 

the Agency’s treatment of such 

substances under Significant New Use 

Rules (SNURs); the commenter believed 

that, when chemicals are secured within 

a polymer matrix, the SNUR 

requirements no longer apply. 

Commenters also stated that pesticides 

and other chemicals not subject to 

TSCA should be fully exempt from 

reporting. 

Comments specific to these different 

groups of chemicals are addressed 

below. 

i. Fossil fuel combustion byproducts. 

Commenters stated that fossil fuel 

combustion byproducts have been 

sufficiently studied for beneficial reuse 

to justify their full exemption from 

IURA reporting. They asserted that 

EPA’s OSW had adequately reviewed 

data on these substances to allow their 

use as solid waste in situations where 

exposures were possible, such as in the 

case of soil amendments. The 

commenters believe that EPA offices 

such as OPPT and OSW must 

coordinate their efforts related to fossil 

fuel combustion byproducts prior to 

undertaking any actions under TSCA, 

and suggested that continued reporting 

on these chemicals would be 

particularly burdensome. 

EPA disagrees with these comments. 

Review of the recent OSW Report to 

Congress on the subject of fossil fuel 

combustion byproducts (Ref. 35) 

indicates that these products can be 

hazardous to human health and the 

environment when mismanaged. These 

products not only typically contain 

heavy metals such as cadmium, 

chromium, lead, and mercury, but 

leachates from fuel combustion 

byproducts can contain significant 

concentrations of arsenic. Despite these 

concerns, OSW has decided to exempt 

these substances from regulation as 

hazardous waste when they are 

beneficially reused. While OSW was not 

able to identify damage cases or 

significant risks to human health or the 

environment associated with these types 

of beneficial uses based on available 

data, OSW plans to assess new 

information on risks as that information 

becomes available. The IURA will be 

instrumental in providing 

manufacturing, processing, and use data 

for fossil fuel combustion byproducts to 

enable OSW to monitor the potential 

risk associated with these chemical 

substances. Additionally, as with any 

chemical byproduct with a use, EPA in 

general needs information to be able to 

screen these chemicals for potential 

concerns outside of the OSW purview. 

Review of such contemporary data, as 

shared between OPPT and OSW, will 

allow EPA to make well-informed risk 

management decisions by constructing 

realistic screening level exposure 

profiles for these substances. These 

profiles could be adjusted as the 

production dynamics change between 

IURA reporting cycles. EPA believes the 

importance of accurate exposure-related 

data in formulating sound risk 

management decisions for fossil fuel 

combustion byproducts justifies the 

associated reporting burden. 

ii. Fertilizers. Fertilizers that qualify 

for the inorganic exemption have not 

been subject to IUR reporting in the 

past. A number of commenters 

emphasized that, in general, fertilizers 

are chemicals whose risks have already 

have been well-characterized. 

According to the commenters, ample 

recent hazard and exposure data from 

studies conducted by EPA’s OSW 

indicate that fertilizers generally are of 

low toxicity, and some constituents of 

major fertilizer types are ‘‘safe’’ because 

the exposure potentials are low. Further, 

as the commenter pointed out, recent 

SIDS program studies on urea, a 

common fertilizer, described the 

chemical to be ‘‘of low priority’’ for 

further investigation, thereby implying 

that the chemical poses little hazard to 

human health and the environment, and 

that adequate risk information is 

available. Commenters stated that 

because they believe the constituents 

are not harmful to human health or the 

environment, fertilizers should be 

exempt from downstream use and 

exposure reporting under IURA (i.e., a 

partial exemption from IURA reporting). 

Other commenters stated that fertilizers 

should be granted a full exemption from 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 877

IURA reporting, or that EPA should 

exempt certain fertilizers by CAS 

number. One commenter suggested that 

20 substances be included in the 

fertilizer list (see list provided in 

Comment C4b-6 of the comment 

summary document, Ref. 18). 

EPA does not believe the suggested 

IURA exemptions for fertilizers and 

fertilizer constituents are warranted at 

this time. The Agency does not agree 

with industry comments citing a 1999 

EPA OSW risk evaluation on ‘‘nonnutritive’’ components in fertilizers as 

adequate justification for classifying 

fertilizers as ‘‘safe,’’ and therefore 

eligible for exemption. The OSW report 

addresses trace quantities of metal 

contaminants in those fertilizers (i.e., 

the non-nutritive elements), not the 

fertilizers themselves. A review of basic 

hazard identification guides, such as the 

Merck Index, the Condensed Chemical 

Dictionary, and Dangerous Properties of 

Industrial Materials, shows that 

exposure to many fertilizers and 

fertilizer materials, including those 

cited in industry comments such as 

anhydrous ammonia, potassium sulfate, 

and urea, can cause both reversible and 

irreversible adverse health effects 

ranging from acute to chronic. The 

availability of IURA exposure-related 

data will allow for the risk screening of 

chemicals used as fertilizers and 

fertilizer constituents to extend beyond 

environmental effects and aid the 

screening of risks to workers, 

consumers, and the general population. 

The Agency therefore believes it is 

appropriate to require reporting for 

fertilizers under IURA. 

iii. Encapsulated substances. A 

commenter stated that the import 

volumes of IUR reportable components 

contained within compounded 

imported polymers should be exempt 

from IURA reporting. The commenter 

indicated that volumes of these 

encapsulated components are difficult 

to determine. Such components include 

antioxidants, colorants, lubricants, and 

stabilizers that are commonly used 

additives in polymer products. The 

polymers are sometimes manufactured 

by a foreign company and imported into 

the United States. The commenter stated 

that these additives, which are 

encapsulated in a polymer matrix, are 

typically present in the matrix at a few 

weight percent. The commenter’s 

understanding was that when chemicals 

are secured within a polymer matrix, 

the SNUR requirements no longer apply, 

thus their suggestion was for EPA to 

treat such substances similarly under 

IURA. 

The SNUR requirements in 40 CFR 

part 721 do not exempt substances 

encapsulated in a polymer matrix. 

Although chemicals incorporated into a 

polymer matrix are not subject to 

SNURs in certain limited circumstances, 

for example, when an individual SNUR 

specifically states that the SNUR 

requirements do not apply to such 

substances (see, e.g., 40 CFR 

721.8160(a)), such chemicals are not 

otherwise generally exempt from SNUR 

requirements. 

Although EPA appreciates the 

difficulty in ascertaining quantitative 

production information from 

manufacturers outside direct U.S. 

jurisdiction, exempting IUR reportable 

components encapsulated in a polymer 

matrix from IURA is not warranted. Not 

all polymers are inviolable. Additives 

such as colorants and lubricants, which 

can be hazardous to human health or 

the environment, can leach from the 

polymer matrix, resulting in subsequent 

exposures. Also, additives which are 

inherently insoluble in the polymer may 

migrate to the surface of the polymeric 

material and be released over time from 

the polymer. Under IURA, each nonexempted mixture component is 

reportable if imported above the stated 

thresholds. Reasonably ascertainable 

information can be used to estimate 

these import quantities. 

iv. Pesticides. Some commenters 

stated that the Agency should exempt 

pesticide chemicals from reporting 

under the IURA, and also should 

exempt those substances outside the 

scope of TSCA, including drugs and 

cosmetics. 

The original IUR did not require 

reporting for chemicals manufactured 

for non-TSCA purposes. Similarly, in 

IURA, amounts of an otherwise IURreportable substance that are intended at 

the time of manufacture to be used for 

non-TSCA purposes (e.g., as a pesticide, 

as a drug) do not have to be reported. 

For example, if a company were to 

manufacture 300,000 lbs. of an IURreportable substance, 170,000 lbs. of 

which were intended at the time of 

manufacture to be sold as a drug 

precursor, and 130,000 lbs. of which 

were intended at the time of 

manufacture to be used for a TSCA 

purpose, only 130,000 lbs. of the 

substance would have to be reported 

under IUR. The company would not 

have to report the processing and use 

information described in § 710.52(c)(4) 

of the regulatory text for that chemical 

at that plant site, since the company did 

not manufacture a total of at least 

300,000 lbs. of the chemical at the site 

for TSCA purposes. Many substances, 

such as the pesticide active ingredient 

pentachlorophenol, are also used in 

industrial and commercial applications 

regulated under TSCA. In those cases, 

the chemicals will continue to be 

reportable under IURA. 

v. Food additives. Commenters stated 

that low hazard chemicals, such as food 

additives, should be categorically 

excluded from the new reporting 

requirements. The commenter stated 

that food use substances, for example, 

are regulated by the Food and Drug 

Administration (FDA) and must either 

be generally recognized as safe (GRAS), 

the subject of a prior sanction, or the 

subject of a food additive regulation 

promulgated by FDA. 

According to FDA’s Office of 

Premarket Approval (OPA), food use 

substances for FDA’s purposes are those 

that are added directly to food, and 

could inadvertently contact and be 

incorporated into food because of use in 

packaging material or in food 

processing. FDA does not evaluate 

chemicals for environmental effects--

only for human health effects. The 

chemicals subject to FDA rules are not 

inherently low hazard in many cases. 

For example, substances such as 

plasticizers, lubricants, release agents, 

acids (e.g., hydrochloric acid), boiler 

water additives, and solvents (e.g., 

acetone and hexane) are included as 

food use substances. Furthermore, even 

direct (i.e., listed) GRAS chemicals can 

be of concern when used at industrial 

concentrations, such as sulfuric acid. 

Thus, as is true with other chemical 

substances, food additives can present a 

risk to human health or the environment 

depending on use and the resulting 

exposure pathways. EPA does not 

believe a categorical exemption for 

chemicals that may be used as food 

additives is warranted at this time. 

Again, such chemicals are only 

reportable under IURA to the extent that 

they are intended at the time of 

manufacture to be used for TSCA 

purposes. 

3. Thresholds. EPA requested 

comment on the 300,000 lbs. threshold 

for reporting industrial processing and 

use, and consumer and commercial use 

information (required under 

§ 710.52(c)(4) of the regulatory text). 

Commenters generally were supportive 

of having a second, higher reporting 

threshold for this exposure-related 

information. However, one commenter 

stated that the 300,000 lbs. threshold is 

too low, and that it should be set at one 

million pounds to coincide with the 

HPV Challenge Program threshold. 

EPA considered chemicals with 

aggregate, nationwide U.S. production 

and importation volumes of one million 

pounds or more (based on 1990 IUR 

data) for the HPV Challenge Program. 

That is, if one million pounds of a 

878 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

certain chemical were reported for the 

1990 IUR as being produced or imported 

collectively, by manufacturers 

throughout the United States, then that 

chemical was identified as an HPV 

chemical for purposes of the HPV 

Challenge Program. The 300,000 lbs. 

IURA threshold captures at least one 

report for more than 95% of the HPV 

chemicals reported to the 1990 IUR. 

The production volume that defines 

chemicals as HPV should not be 

confused with the 300,000 lbs. per year 

reporting threshold for processing and 

use data reporting in IURA. The 300,000 

lbs. threshold applies to the amount 

manufactured at a single site and is not 

an aggregate, industry-wide production 

number. EPA is implementing the 

300,000 lbs. per year reporting threshold 

for individual IUR submitters because it 

limits the increase in burden associated 

with the new IURA processing and use 

reporting requirements and it limits the 

number of chemicals for which 

exposure-related data will be reported to 

approximately 4,000. This number is 

consistent with the ‘‘several thousand 

chemicals’’ suggested by GAO in its 

1995 report ‘‘EPA Should Focus Its 

Chemical Use Inventory on Suspected 

Harmful Substances’’ (Ref. 36), and 

ensures that exposure-related data will 

be reported for almost all HPV 

chemicals (defined by national aggregate 

production). Increasing the 300,000 lbs. 

threshold to one million lbs. would 

drastically undermine the Agency’s 

collection of processing and use 

exposure-related data. The higher 

threshold would reduce the number of 

chemicals for which this information is 

submitted and eliminate processing and 

use data reporting on many of the HPV 

chemicals. The Agency would be left 

with very little information with which 

to conduct the needed screening- level 

assessments and the resulting 

prioritization would be less meaningful. 

In the proposed IURA, EPA also 

solicited comments on the possibility of 

replacing the chemicals identified using 

the 300,000 lbs. annual production 

volume threshold (by site) with any of 

five other groups of chemicals. Those 

groups include: (1) A set of HPV 

chemicals that submitters identify as 

being produced nationwide in amounts 

of one million lbs. or more; (2) 

chemicals that are currently subject to 

testing under TSCA section 4 (i.e., test 

rules and enforceable consent 

agreements (ECAs)); (3) chemicals 

identified for voluntary testing; (4) 

chemicals designated for testing by the 

ITC; and (5) chemicals listed in the 

Agency’s Master Testing List (the 

current edition is available at http://

www.epa.gov/opptintr/chemtest/

mtl.htm). 

With respect to the possibility of 

limiting the collection of processing and 

use information to HPV chemicals 

identified by submitters, the Agency 

asked for comment on: (1) Whether 

submitters would be able to determine 

which chemicals have exceeded the 

nationally aggregated HPV threshold in 

a given submission period, especially 

given how frequently chemical 

production rises above and falls below 

this threshold from IUR submission 

period to submission period; (2) what 

additional burdens such a 

determination would place on 

submitters; and (3) whether IURA data 

would be less useful if processing and 

use data reporting were limited to HPV 

chemicals. 

Many commenters favored use of the 

set of HPV chemicals in lieu of the 

proposed IURA reporting with the 

300,000 lbs. threshold, yet none directly 

responded to the specific Agency 

questions. Commenters failed to take 

into account the added burden of 

aggregating chemical production to 

determine which substances are HPV 

chemicals. They also offered no 

justification for substituting the 300,000 

lbs. plant site-specific threshold with a 

one million lbs. national aggregate 

threshold, beyond stating that relevant 

information is being provided already 

through other programs. Nor did they 

offer possible solutions to the problem 

of reliably aggregating production 

volumes. 

EPA does not believe that submitters 

will be able to effectively aggregate 

nationwide production volumes. 

Aggregation is especially difficult in 

light of continual, market-driven 

changes in production and many 

submitters’ interest in protecting 

individual plant site production volume 

information as CBI. Additionally, for a 

nationally aggregated one million lbs. 

threshold to be effective, it must be able 

to accommodate the frequency with 

which individual chemicals may rise 

above or fall below the HPV threshold 

criteria of a U.S. aggregate production 

volume of one million lbs. or more per 

year. For example, 17% of the chemicals 

which were HPVs according to data 

submitted under the 1990 IUR were not 

HPVs according to data submitted under 

the 1994 IUR. 

D. Definitions and Clarification 

Requests 

1. Is mining considered 

manufacturing? Commenters asked 

whether mining is considered 

‘‘manufacturing’’ under TSCA. Under 

TSCA, the term ‘‘manufacture’’ includes 

production or importation of a chemical 

substance as well as its manufacture 

(TSCA section 3(7)). Mining, which 

includes extracting metal ores or 

minerals from their natural deposits by 

any means, including secondary 

recovery of metal ore from reuse or 

other storage piles, wastes, or rock 

dumps, or from mill tailings derived 

from the mining, cleaning, or 

concentration of metal ores, is 

production and is considered to be a 

manufacturing activity under TSCA. 

However, chemical substances which 

are naturally occurring and which, 

among other things, are unprocessed or 

processed only by manual, mechanical, 

or gravitational means (see 40 CFR 

710.4(b)(1)) are currently excluded from 

IUR reporting and will continue to be 

excluded under IURA (see 40 CFR 

710.46(a)(3)). For example, rocks, ores, 

and minerals are not IURA-reportable to 

the extent they are manufactured only 

via the means described in 40 CFR 

710.4(b). The § 710.46(a)(3) exclusion is 

a process-specific exclusion rather than 

a chemical- or industry-specific one. 

Therefore, persons who manufacture a 

substance in a manner other than as 

specified in § 710.4(b) are required to 

report under IURA unless they or the 

substance they manufacture are 

otherwise excluded. As a result, many 

mined materials are listed on the TSCA 

Inventory because at least some of the 

time they are produced by other than 

manual, mechanical, or gravitational 

means. 

Section 710.46(a)(3) intentionally 

exempts from IURA reporting any 

chemical substance which is isolated or 

removed from nature, for a commercial 

purpose, by any means listed in 

§ 710.4(b). It also exempts any other 

chemical substance derived or separated 

from the substance originally removed 

from nature, provided such derivation 

involved only the means specified in 

§ 710.4(b). For example, when using 

manual, mechanical, or gravitational 

processes to separate one or more 

substances from a naturally-occurring 

mixture, these isolated component 

substances are also considered 

naturally-occurring and excluded from 

reporting. However, any substance 

manufactured from a naturally 

occurring precursor substance via a 

chemical reaction is not considered 

naturally occurring and, therefore, not 

excluded from reporting under 

§ 710.46(a)(3). 

2. What is the difference between 

‘‘reasonably ascertainable’’ information 

and ‘‘readily obtainable’’ information? 

A number of commenters raised 

concerns about the meaning of ‘‘readily 

obtainable’’ and ‘‘reasonably 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 879

ascertainable,’’ what level of effort is 

required for each, and the difference in 

the level of effort required. Commenters 

also stated that the expectation that 

submitters will provide data on users 

outside their control seems to be an 

unworkable and unrealistic mandate. 

The reporting standard of TSCA section 

8(a)(2) is ‘‘reasonably ascertainable,’’

and commenters stated that this should 

not be construed to include data that are 

not in the possession of the person 

reporting. 

‘‘Known to or reasonably 

ascertainable by’’ is the current standard 

for data collection under which IUR 

operates and is the standard authorized 

by TSCA section 8(a). ‘‘Known to or 

reasonably ascertainable by’’ means all 

information in a person’s possession or 

control, plus all information that a 

reasonable person similarly situated 

might be expected to possess, control, or 

know. The ‘‘known to or reasonably 

ascertainable by’’ standard is applicable 

to the information required under 

§ 710.52(c)(1), (c)(2), and (c)(3) of the 

regulatory text. 

‘‘Readily obtainable’’ is a lesser 

standard EPA is applying to the 

reporting of information concerning the 

processing and use of chemicals subject 

to IURA (§ 710.52(c)(4) of the regulatory 

text). The readily obtainable standard is 

limited to information known by 

management and supervisory employees 

of the submitter, and does not require 

additional effort to collect information 

on processing or use of chemicals by 

others not under the control of the 

submitter. Although the Agency is 

requiring submitters to provide only 

information that it knows, EPA believes 

that in many cases submitters will 

possess some knowledge concerning use 

of chemicals sold by the submitter to 

their customers, even though the 

submitter does not control its 

customers’ sites. For example, when a 

company markets the substances for 

certain end uses. EPA’s experience with 

over 30,000 TSCA section 5 PMNs 

demonstrates that companies generally 

do know the intended ultimate use, as 

well as intervening processing steps, of 

their products. In choosing the readily 

obtainable standard, the Agency is 

lessening the burden on submitters 

compared to the ‘‘known to or 

reasonably ascertainable by’’ standard, 

while recognizing that the submitter is 

supplying data on uses of chemicals that 

are beyond his or her control. The 

standard for reporting information on 

processing and use of chemical 

substances under IURA is the same as 

the standard adopted in the PAIR, 

which was also promulgated under the 

authority of TSCA section 8(a). (See 40 

CFR 712.7) 

E. Confidential Business Information 

The Agency’s intent under these 

regulations is to achieve balance and 

ensure that the submitter only claims as 

confidential that information which is 

legally entitled to confidential 

treatment. EPA believes that these 

amendments will discourage the 

assertion of invalid CBI claims by 

focusing submitter’s attention more 

closely on their decision to make certain 

claims. 

1. General CBI.—a. Reducing the 

amount of CBI claims. EPA solicited 

suggestions from commenters on what 

could be done to the IUR reporting 

process and data elements to reduce CBI 

claims, thereby allowing better public 

access to the data. Some commenters 

suggested that EPA is trying to 

discourage legitimate CBI claims by 

making assertion of such claims overly 

burdensome. Some commenters stated 

that the new data elements that are 

being added by these amendments raise 

significant CBI concerns and that IURA 

can be expected to result in a significant 

increase in the number of legitimate CBI 

claims. 

EPA agrees that submitters will make 

CBI claims for the new data elements 

that are being added by these 

amendments, most likely resulting in a 

greater number of CBI claims overall. 

However, EPA is requiring reporting for 

most of the new data elements in ranges, 

a reporting method EPA believes will 

result in fewer CBI claims compared to 

reporting discrete numbers. 

Additionally, EPA is amending the IUR 

to encourage the assertion of only 

legally valid CBI claims, and to ensure 

that CBI claims are well thought out by 

the submitter. The IURA includes a new 

requirement to provide upfront 

substantiation of CBI claims for site 

identity. This requirement will 

minimize claims by prompting 

submitters to perform an initial 

evaluation of the need for and validity 

of a CBI claim for plant site identity, an 

essential data element. These efforts 

will greatly assist in limiting CBI claims 

to those that are legitimate. 

EPA wishes to clarify that it is not 

attempting to discourage legitimate 

confidentiality claims; rather, the 

Agency intends only to discourage 

inappropriate claims. This allows the 

Agency to protect legitimate CBI while 

also increasing the amount of 

information available for public use. 

EPA has information indicating the 

existence of inappropriate or no longer 

valid CBI claims. For instance, when 

EPA has selectively challenged CBI 

claims in the past, many of these claims 

have been amended by the companies to 

make the information available to the 

public. Additionally, OPPT’s 

administrative record 00125, which 

contains state CBI data reviews, 

published articles, industry letters, and 

other papers discussing CBI issues, 

provides further indication that 

inappropriate or no longer valid CBI 

claims exist. For instance, the Georgia 

Department of Natural Resources 

reported in a 1996 CBI Data Review that 

IUR data identified as confidential was 

available in other non-confidential data 

bases (Ref. 37). The administrative 

record is in the same location as the 

Docket and is available by following the 

procedures identified in Unit I.B.1. 

Some commenters suggested reducing 

the number of data elements that will be 

collected under IURA, perhaps using 

instead a format such as the one used by 

OECD for SIDS chemicals, which 

aggregates information for all 

manufacturers and thus protects 

company-specific information. EPA 

considered alternate reporting formats 

with different data elements, and has 

determined that the reporting of sitespecific information by the individual 

sites is the best way to collect the 

information needed. EPA will continue 

to perform the aggregating function 

when providing the public with 

information that is subject to a sitespecific CBI claim. Collecting only 

national aggregate values would 

drastically reduce the usefulness of the 

information to the Agency, even though 

it may reduce the number of CBI claims. 

The IUR is used to address both national 

needs and local issues. For example, 

IUR production volume information was 

used to identify the national list of High 

Production Volume (HPV) chemicals for 

the Agency’s HPV Challenge Program 

(see http://www.epa.gov/opptintr/

chemrtk/volchall.htm). Moreover, sitespecific IUR information is used to 

secure a better overall understanding of 

activities at individual sites. This 

information is used for site-specific risk 

assessments for the use of federal, state 

and local entities. 

b. Protection of CBI. Some 

commenters expressed concern about 

the Agency’s ability to protect against 

the inappropriate release of CBI and 

stated that, under section 14 of TSCA, 

EPA has a statutory obligation to protect 

information properly claimed as CBI. 

These commenters are concerned about 

past releases of information claimed as 

confidential, and would like to see the 

Agency take steps to guarantee greater 

protection of CBI data. 

EPA agrees that it has a statutory 

obligation to protect information 

880 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

properly claimed CBI and is continually 

involved in exploring ways to better 

protect such information. In this light, 

these amendments reflect the Agency’s 

efforts to assure that information it 

protects qualifies for that protection 

under the established legal standards. 

The new IURA requirements will help 

assure that EPA’s system of information 

protection is limited to valid claims. 

c. Production volume ranges. EPA 

requested comment on the use of 

production volume ranges as a 

mechanism to reduce the number of 

confidentiality claims by allowing 

characterizations of site-specific 

chemical and specific production 

volume information without releasing 

CBI. In general, commenters felt that the 

use of the ranges would not necessarily 

result in reduced CBI claims. 

Commenters cited a few examples 

where production volume would still be 

claimed CBI, including information 

reported in ranges. Other commenters 

suggested using broader ranges. 

Despite these comments, the Agency 

has determined that it is worthwhile to 

require submitters to consider whether 

their production volumes, within ranges 

similar to those used for the original 

TSCA Inventory, warrant protection as 

CBI (EPA made adjustments to the 

original TSCA Inventory ranges by 

making the ranges consistent with the 

second reporting threshold of 300,000 

lbs., as described in Unit II.F.5.d.). EPA 

recognizes that some submitters will 

make CBI claims for both the specific 

and the ranged production volume 

information. However, EPA believes 

that in many cases submitters will allow 

the release of ranged production volume 

information. This belief is supported by 

some industry organizations. For 

example, in a 1993 letter, a company 

suggested the use of the original 

Inventory production volume ranges for 

non-confidential reporting. While the 

company did state that ‘‘conceivably, a 

submitter could be able to justify a CBI 

claim for a range,’’ the conclusion was 

that many companies would be satisfied 

with non-confidential reporting (Ref. 

11). These conclusions are further 

supported by EPA’s experience with the 

original TSCA Inventory, where only 

35% of production volume values 

reported were claimed CBI, compared to 

the typical claim level of 65% for 

production volumes under IUR. 

d. Disclosing customer confidential 

information. A commenter expressed 

concern that, as a producer of chemical 

feedstocks, they might inadvertently 

report customer data and not claim the 

data as CBI, while their customer 

reports the same data and does claim 

the data as CBI. 

EPA does not believe that this will be 

a significant issue. The downstream 

processing and use information that 

some submitters will be required to 

provide under IURA is not tied to 

customer identities. Submitters will not 

report where or who their customers are 

or how much their individual customers 

produce. In addition, CBI claims can be 

made as necessary for any information 

provided on Form U. 

2. Upfront substantiation.—a. 

Authority for substantiation. A 

commenter stated that the plant site 

identity substantiation requirement is 

not authorized under TSCA. Another 

commenter felt that requiring upfront 

substantiation is overly burdensome and 

an arbitrary exercise of authority. The 

commenter stated that substantiation 

should only be required if and when a 

request for public disclosure is made, 

and substantial and reasonable need are 

demonstrated. 

Under TSCA section 14(c), ‘‘a 

[confidential] designation under this 

paragraph shall be made in writing and 

in such manner as the Administrator 

may prescribe.’’ EPA is continuing to 

require that those reporting under IURA 

substantiate their chemical identity CBI 

claims, and is requiring under these 

amendments that submitters also 

substantiate any plant site identity CBI 

claims. Section 710.58 of the regulatory 

text requires submitters to substantiate 

these claims submitted under IUR by 

providing answers to specified 

questions. EPA has long required 

upfront substantiation for specified CBI 

claims under the authority specified in 

TSCA (see, e.g., 40 CFR 710.38(c) of the 

current regulatory text) and will 

continue to require upfront 

substantiation where appropriate. 

The Agency is adding upfront 

substantiation requirements for plant 

site identity information because EPA 

has observed that, on occasion, plant 

site information has been claimed as 

confidential even though, for example, 

it was revealed in filings required under 

sections 311, 312, and 313 of the 

Emergency Planning and Community 

Right-to-Know Act (EPCRA), 42 U.S.C. 

sections 11021 to 11023. EPA believes 

that many of these CBI claims are 

inappropriate and that the new 

substantiation requirement will reduce 

the occurrence of inappropriate claims. 

A decrease in the number of CBI claims 

under the new substantiation 

requirement would facilitate EPA’s 

ability to make current plant site 

information available to other Federal 

agencies and the public because more 

information submitted under IUR could 

be released publicly. 

Upfront substantiation of CBI claims 

imposes some additional burden, 

although this burden is not substantial. 

EPA’s economic analysis for this rule 

estimates 0.2 to 0.3 hour per plant site 

reporting under IURA for the 

incremental costs of reporting all 

elements of plant site identity 

information. The burden of upfront 

substantiation for plant site identity CBI 

claims is included in this estimate. 

b. Alternate substantiation questions. 

One commenter suggested a simplified 

set of substantiation questions, 

consisting of two questions: (1) Are the 

specified data confidential? and, (2) In 

as much detail as possible, explain why 

this information should be given CBI 

protection. 

EPA believes that requiring responses 

to the list of substantiation questions in 

§ 710.58 of the regulatory text is 

necessary to ensure that information 

submitted for confidential protection 

qualifies for that protection. The 

commenter’s proposed questions, while 

providing the opportunity for a 

submitter to express its business reasons 

and preferences regarding the 

information, do not provide all of the 

necessary information to definitively 

evaluate the eligibility of the 

information for confidential treatment. 

3. Reassertion. EPA received a 

number of comments regarding the 

proposed new CBI reassertion 

provisions. All of these comments were 

opposed to the proposed new 

requirement. Some comments expressed 

the position that reassertion is overly 

burdensome and even punitive, 

requiring submitters to retrace old steps 

by answering all the original 

substantiation questions anew. 

Commenters were concerned that 

reassertion could possibly require the 

retention of voluminous old records. 

Others felt the proposed standards 

would violate the Agency’s obligation 

under TSCA to protect confidential 

information and that EPA would exceed 

its authority if it required the reassertion 

of CBI claims. 

EPA has considered these industry 

comments, and weighed the concerns 

expressed against the public’s need for 

access to information on chemicals in 

commerce in the United States. While 

the Agency believes the requirement to 

reassert old claims of CBI is justified as 

a practical measure to ensure that 

information withheld meets the legal 

criteria and that the expressions of 

concern relating to burden associated 

with reassertion, appear to be the result 

of a misunderstanding of the practical 

aspects of the proposed reassertion 

requirement, the Agency is not 

finalizing the proposed reassertion 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 881

requirement. EPA has made this 

decision in an effort to reduce the 

overall burden of these amendments. 

F. Administrative Comments 

1. Frequency of reporting. Several 

commenters stated that one-time 

reporting of IURA information would be 

more appropriate in most cases for the 

intended purposes expressed by EPA. In 

general, commenters stated that EPA 

could use tools such as PAIR to identify 

changes in a particular chemical’s 

exposure or use profile at the time the 

Agency decides to do a risk analysis for 

that chemical (see Unit III.A.3.). A few 

commenters stated that there is 

insufficient change in the chemical 

industry to warrant recurring reporting 

of IURA information, especially for 

higher volume chemicals. 

EPA’s experience with past IUR 

reporting demonstrates that the 

chemical industry is dynamic, with a 

30% change in the number of chemicals 

reported from one submission period to 

the next. The specific chemicals that are 

reported or not reported in any single 

submission period change at a variety of 

production volumes; this change is by 

no means limited to lower production 

volume chemicals. 

Although a chemical’s hazards may be 

fully characterized, EPA needs up-todate exposure information to stay 

current with developments and 

adequately screen chemicals for 

possible risks to human health and the 

environment. While the toxicity of a 

chemical does not change (although 

new information can modify the 

assessment or identify new concerns), a 

chemical’s exposure profile can vary 

greatly over time. Human and/or 

environmental exposures to the 

substance can at one time be minor, but 

as uses change from industrial 

applications to consumer uses, or as 

production volumes increase, exposures 

also tend to increase. Because exposures 

and uses can and do change over time 

as technologies develop or innovations 

arise, updated exposure information is 

needed to maintain an adequate 

understanding of current exposures. 

EPA did consider one-time reporting for 

IURA processing and use data, but the 

information would quickly become out 

of date. 

A primary goal of IURA is to provide 

a data base of exposure-related 

information which can be used for 

screening level purposes to identify 

chemicals for further assessment, as 

well as chemicals of lesser concern (see 

Unit III.A.1.). EPA intends to use other 

data sources and collection tools, as 

appropriate, once a chemical has been 

identified as a candidate for further 

assessment. 

2. Calendar year reporting. One 

commenter stated that the requirement 

to report data on a calendar year basis 

instead of a company fiscal year basis 

would increase systems development 

needs for companies who report their 

manufacturing volume on a fiscal year 

versus a calendar year (by creating the 

need for a second tracking system), 

while adding no additional value or 

accuracy in the reporting of 

manufacturing data. This commenter 

pointed out that because the most that 

companies’ fiscal years can differ from 

a calendar year is 6 months and IUR 

reporting occurs every 4 years (instead 

of every year), there can be little 

difference in the data with a maximum 

6–month time frame shift. Other 

commenters supported the change to a 

calendar year basis, supporting the idea 

of having a consistent time frame to 

better enable linkages with other data 

bases. 

EPA has retained the calendar year 

reporting cycle as proposed. By moving 

the collection to a calendar year basis, 

the IURA data collection becomes more 

compatible with other data bases such 

as the TRI. This compatibility increases 

the usefulness of the IURA collection by 

allowing IURA data to be combined 

with data from other collections. 

Generally, companies should be 

sufficiently familiar with their 

production that this provision should 

not present special challenges that are 

unaccounted for in the burden estimates 

provided by survey respondents, as 

described in the economic analysis. 

G. Economic Impact Estimates 

Commenters raised a number of 

concerns about the economic analysis. 

In response, EPA has made a number of 

changes to make the analysis a more 

readable document and to incorporate 

changes made to the final IURA 

requirements. 

1. General burden comments. 

Commenters raised a variety of concerns 

about the size of the burden associated 

with the amendments, and EPA’s 

estimates of that burden. In general, 

commenters felt that the Agency’s 

burden estimates were too low. 

However, few commenters provided 

evidence as to why they felt EPA 

underestimated the burden, and none 

provided any specific analytical basis 

for amending the estimates. Some 

commenters claimed that the revised 

form represents a 5-, 10-, or 30–fold 

increase in burden, at least partly based 

upon the fact that the original Form U 

was only 1 page and the sample revised 

Form U provided in the proposed rule 

was 3 pages. 

In response to these comments, EPA 

reviewed the burden analysis and, 

although the estimated burden was 

adjusted, determined that the comments 

do not warrant modifications to the 

Agency’s general approach to the 

analysis. EPA based much of the burden 

analysis on a survey of 78 industry 

respondents (Ref. 7). In addition, EPA 

considered the burden associated with 

such programs as the UEIP (described in 

Unit III.A.1.), a voluntary project in 

which EPA collected information 

similar in some ways to IURA 

information. UEIP respondents provided 

estimates of the amount of time they 

used to complete the survey forms (Ref. 

7). However, EPA did reassess the 

results of the burden survey and did 

make some changes to the analysis. The 

burden from the analysis associated 

with the proposed rule was $36 to $51 

million in the first year, and $27 million 

to $41 million in future reporting years. 

Changes in the rule and methodology 

raised estimated costs of the final rule 

to between $72 and $87 million in the 

first reporting cycle, and $64 to $77 

million in future reporting cycles. These 

changes are primarily due to revising 

the analysis from the survey data, 

revising the analysis to remove the 

reassertion burden, updating costs to 

year 2000 dollars, and updating the 

number of report submissions to 

incorporate the 1998 IUR data 

collection. These changes are discussed 

further in ‘‘Revised Economic Analysis 

for the Amended Inventory Update 

Rule’’ (Ref. 7). 

a. Burden over time. Commenters 

raised concerns about specific burden 

issues. Several commenters felt that 

burden associated with IURA will not 

decrease over time because of the 4–year 

time lapse between submission periods. 

Those commenters believe that the 4–

year period between submission periods 

will result in changes to product lines 

and personnel such that a complete 

reintroduction to IUR reporting will be 

necessary in each reporting cycle. EPA 

disagrees, and expects rule 

familiarization to require the most effort 

in the first year of reporting. EPA 

believes that there will be some 

similarity in the information reported 

from one submission period to the next, 

especially for Parts I and II of the 

revised Form U. Subsequent reporting 

will be facilitated by the site’s 

maintenance of its previous submission 

period’s records. 

b. Characterization of burden 

reduction. Commenters asserted that the 

economic analysis for the proposed rule 

was misleading in its characterization of 

882 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

the actions that constitute burden 

reduction and cost savings. Specifically, 

commenters referred to EPA’s claim of 

a burden reduction and cost savings 

associated with the 300,000 lbs. 

threshold for reporting of Form U, Part 

III information on industrial processing 

and use, and consumer and commercial 

use. EPA simply meant that providing a 

partial exemption for chemicals below 

the 300,000 lbs. threshold is a 

concession to the burden that the rule 

imposes on reporting sites, and that the 

Agency has no other basis for this 

exemption other than to mitigate the 

increase in burden. EPA presented a 

similar discussion comparing options 

considered under the rule for other 

partial reporting exemptions such as the 

petroleum streams exemption. These 

discussions are put into the appropriate 

context in the economic analysis. A 

commenter also took issue with the fact 

that EPA asserts that reporting 

processing and use information on the 

top 10 NAICS codes will reduce costs 

(versus reporting on an unlimited 

number of NAICS codes), given that 

identifying these top 10 could take 

considerable effort. EPA continues to 

believe that reporting only the top 10 

NAICS codes will be less burdensome 

than reporting all NAICS codes 

associated with industrial processing or 

use operations. 

2. Cost comments. Two commenters 

asserted that compliance costs for 

chemicals manufactured in amounts 

below the 25,000 lbs. threshold are not 

zero and that, as production volume for 

a chemical approaches the threshold, 

tracking costs will accrue to determine 

if production will cross the threshold. 

Compliance determination (the act of 

determining the need to comply with a 

regulation) occurs on a per-site basis. 

This means that all sites that report 

under IURA are assumed to incur the 

same average cost for determining 

compliance, regardless of the number of 

chemicals reported. Some small number 

of firms that are not required to report 

may incur some negligible costs in this 

regard, but EPA believes the costs to be 

relatively small given that it is standard 

business practice for a company to be 

aware of the volumes it produces. The 

existence of voluntary submitters does 

not imply that below-threshold 

compliance costs are non-zero; it simply 

indicates that some firms choose to 

respond to IUR when reporting is not 

required. 

Another commenter determined that 

member companies in its organization 

would experience no savings from 

raising the threshold from 10,000 lbs. to 

25,000 lbs. as no reports are eliminated. 

In 1994, EPA received approximately 

3,800 reports for chemicals produced in 

quantities between 10,000 and 25,000 

lbs. As a result, the Agency anticipates 

that a significant number of reports will 

be eliminated by raising the reporting 

threshold. 

3. Benefits comments. Commenters 

stated that EPA has overestimated the 

benefits of this rule and should quantify 

the benefits. However, given that IURA 

is an information rule and its benefits 

are therefore indirect, it is currently not 

possible to quantify the benefits of the 

rule. Only by collecting the information 

required under the IURA can EPA begin 

to assess thoroughly the risks from a 

portion of the more than 76,000 

chemicals in commerce. The actions 

that result from EPA review of the IURA 

data will have direct health and 

environmental benefits, benefits that 

typically can be quantified. Commenters 

offered no alternate assessment, 

quantitative or otherwise, of the benefits 

from IURA. In the absence of quantified 

benefit figures, it is impossible to make 

simple comparisons to estimates of 

reporting costs. Thus, EPA must balance 

the needs of the Agency for data with 

which to address important 

environmental and health risks, with 

the burdens of obtaining such data. In 

doing so, the uses of and need for the 

data are carefully addressed both within 

the Agency, and during interagency 

review. EPA has made every attempt to 

collect only the information necessary 

to meet Agency goals for obtaining 

screening level exposure-related 

information. 

4. Small business impact comments. 

Several commenters argued that EPA’s 

analysis of the impacts of IURA on 

small businesses is insufficient to meet 

the requirements of the Regulatory 

Flexibility Act (RFA), as amended by 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996. EPA’s analysis of small business 

impacts fully complies with the RFA, as 

amended. For rules subject to the RFA, 

the Agency is required to undertake 

specific actions (such as preparing an 

initial regulatory flexibility analysis and 

convening a small business advocacy 

review panel) unless it certifies that the 

rule will not have a significant impact 

on a substantial number of small 

entities. EPA prepared a thorough small 

entity analysis that meets the 

requirements of the RFA. The analysis 

for the final rule can be found in the 

‘‘Revised Economic Analysis for the 

Amended Inventory Update Rule’’ (Ref. 

7). For both the proposed and final 

rules, EPA certified that there will not 

be a significant impact on a substantial 

number of small entities. A summary of 

the analysis and the certification can be 

found in Unit V.B. 

5. Non-regulatory alternatives. 

Commenters also stated that EPA did 

not identify any non-regulatory 

alternatives and failed to assess the 

relative costs and benefits of an 

alternative approach. In the economic 

analysis for the proposed rule, the 

Agency did not specifically identify 

non-regulatory alternatives to the 

reporting requirements. However, the 

Agency did consider non-regulatory 

alternatives and has added a discussion 

to the economic analysis. 

The Agency primarily considered two 

non-regulatory alternatives. First, the 

Agency considered using publicly 

available information, as discussed in 

Unit III.A.3. The Agency found that the 

information to be collected through 

IURA was not publicly available and 

therefore this was not a viable option. 

Second, the Agency considered a 

voluntary approach to collecting this 

information, similar to the UEIP 

collection discussed in Unit III.A.1. 

However, information collected through 

a voluntary program may lack 

consistency, may not be sufficiently 

comprehensive, or may not occur on a 

recurring basis, and therefore would not 

fully serve the purposes of IURA 

information. Therefore, a voluntary 

approach was not a viable option. 

IV. Materials in the Rulemaking Record 

The public version of the official 

record for this rulemaking has been 

established as described in Unit I.B.1. 

under docket ID number OPPT–2002–

0054. This record includes the 

documents located in the docket as well 

as the documents that are referenced in 

those documents. The following is a 

listing of the documents that are 

specifically referenced in this final rule. 

These documents, and the documents 

referenced therein, are also included in 

the public version of the official record. 

Please note that some referenced 

documents are already publicly 

available and this list includes the 

relevant location information. 

1. U.S. EPA, ‘‘Reducing Risk: Setting 

Priorities and Strategies for 

Environmental Protection,’’ Science 

Advisory Board, (SAB-EC-90-021), 1990. 

2. National Academy of Public 

Administration, ‘‘Setting Priorities, 

Getting Results - A New Direction for 

EPA,’’ 1995. 

3. Chemical Manufacturers 

Association, Synthetic Organic 

Chemical Manufacturers Association, 

U.S. EPA, Chemical Specialties 

Manufacturing Association, American 

Petroleum Institute, ‘‘Round 3 of the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 883

UEIP (Use and Exposure Information 

Project),’’ June 3, 1996. 

4. American Petroleum Institute, 

‘‘Petroleum Process Stream Terms 

Included in the Chemical Substances 

Inventory Under the Toxic Substances 

Control Act (TSCA),’’ Health and Safety 

Regulation Committee Task Force on 

Toxic Substances Control, February 

1985. 

5. USEPA, ‘‘Methodology Used for the 

Initial Selection of Chemicals for the 

Inventory Update Rule Amendments 

(IURA) ‘Low Current Interest’ Partial 

Reporting Exemption,’’ OPPT, July 24, 

2002. 

6. USEPA, ‘‘EPA Needs ExposureRelated Data: A Discussion of the 

Justification for Collecting ExposureRelated Data Through the IUR 

Amendments,’’ OPPT/EETD/EPAB, 

1998. 

7. USEPA, ‘‘Economic Analysis for 

the Amended Inventory Update Final 

Rule,’’ OPPT, August 2002. 

8. USEPA, ‘‘Incremental Cost 

Estimates for IURA: Interagency Review 

Comparison and Five Year Reporting 

Cycle,’’ OPPT/EETD/EPAB, July 17, 

2002. 

9. USEPA, ‘‘Draft Instructions Manual 

for the 2006 Inventory Update Rule 

Reporting,’’ OPPT, August 2002. 

10. USEPA, ‘‘Inventory Update Rule 

(IUR) Technical Support Document: 

Evaluation of Likelihood of Confidential 

Business Information Claims for 

Production Volume Information,’’

OPPT, August 26, 1996. 

11. Letter from Mark N. Duvall, Union 

Carbide, to EPA, ‘‘Additional Comments 

of Union Carbide Corporation on EPA’s 

Preliminary Actions to Reform TSCA 

Confidential Business Information, 

Docket No. OPPTS–00125,’’ August 31, 

1993. 

12. Letter from Stephen A. Newell, 

Occupational Safety and Health 

Administration, to Wardner G. 

Penberthy, EPA, October 15, 1996. 

13. Letter from Paul A. Schulte, Ph.D., 

National Institute for Occupational 

Safety and Health, to Wardner G. 

Penberthy, EPA, October 8, 1996. 

14. USEPA, ‘‘Inventory Update Rule 

(IUR) Amendment Technical Support 

Document: Exposure-Related Data 

Useful for Chemical Risk Screening,’’

Volumes 1 and 2, OPPT, July 19, 1996. 

15. U.S. Census Bureau, North 

American Industrial Classification 

System (NAICS), http://

www.census.gov/epcd/www/

naics.html, 1999. 

16. USEPA, ‘‘Preliminary Assessment 

Information Rule (PAIR) Database, 

Manufacturing Process Type/Release 

Analysis and Number of Workers/

Production Quantity Analysis,’’ OPPT, 

September 26, 1996. 

17. Standard Consumer Safety 

Inspection ASTM F963-96A (sec. 3.1–

3.3). 

18. USEPA, ‘‘Summary of EPA’s 

Responses to Public Comments 

Submitted in Response to Proposed 

TSCA Inventory Update Rule 

Amendments (64 FR 46772),’’ OPPT/

EETD, September 6, 2002. 

19. USEPA, ‘‘IURA Data Use Plan,’’

OPPT/EETD, August 23, 2002. 

20. USEPA, ‘‘A SAB Report: 

Improving the Use Cluster Scoring 

System, Recommendations for the Use 

Cluster Scoring System Prepared by the 

Environmental Engineering 

Committee,’’ Science Advisory Board, 

SAB-EEC-95-017, September 1995. Also 

available at www.epa.gov/sab/pdf/

eec95017.pdf. 

21. Letter from Michael A. Babich, 

U.S. Consumer Product Safety 

Commission, to Wardner G. Penberthy, 

EPA, June 24, 1996. 

22. Letter from Robert Franklin, U.S. 

Consumer Product Safety Commission, 

to EPA, December 23, 1999. 

23. Letter from Paul A. Schulte, Ph.D., 

National Institute for Occupational 

Safety & Health, to EPA, December 21, 

1999. 

24. General Accounting Office, ‘‘Toxic 

Chemicals: Long-Term Coordinated 

Strategy Needed to Measure Exposures 

in Humans,’’ GAO/HEHS-00-80, May 2, 

2000. 

25. Letter from Linda Greer, Ph.D., 

Natural Resources Defense Council, to 

Carol Browner, EPA, February 12, 1999. 

26. USEPA, ‘‘Economic Analysis of 

Proposed Amendments to the TSCA 

Section 8 Inventory Update Rule,’’

OPPT/EETD/EPAB, March 1, 1999. 

27. USEPA, ‘‘A Review of Existing 

Exposure-Related Data Sources and 

Approaches to Screening Chemicals: A 

Response to CMA,’’ OPPT, March 1999. 

28. European Commission, 

‘‘Technical Guidance Document in 

Support of Commission Directive 93/67/

EEC on Risk Assessment for New 

Notified Substances and Commission 

Regulation (EC) No 1488/94 on Risk 

Assessment for Existing Substances; 

Part III.’’

29. USEPA, ‘‘‘Inventory Update Rule 

(IUR) Technical Support Document: 

Selection of Consumer and Commercial 

End-Use Categories,’’ OPPT, 1996. 

30. Letter from the TSCA Interagency 

Testing Committee providing a response 

to an Interagency proposed rule review 

question, undated. 

31. Letter from John DeYoung, Chief 

Scientist, U.S. Geological Survey, to 

Mary Ellen Weber, EPA, July 25, 2002. 

32. USEPA, ‘‘Inorganic Chemicals: 

Sources of Information Suggested by 

Commenters to the Proposed Inventory 

Update Rule Amendments,’’ OPPT, June 

2000. 

33. Memorandum from Sandy 

Zavolta, U.S. EPA, to Heidi King, Office 

of Management and Budget, May 21, 

1999. 

34. OECD, ‘‘Guidance for Collection 

and Transmission of Exposure 

Information for SIDS Initial 

Assessment,’’ OECD SIDS Manual 

(Third Revision), Section 2.5, July 1997, 

available at http://www.epa.gov/

opptintr/sids/sidsman.htm. 

35. USEPA, ‘‘Report to Congress: 

Wastes from the Combustion of Fossil 

Fuels (EPA Docket #F–2000–FF2F–

FFFFF) Public Comment Summary and 

Response Document,’’ OSW, April 25, 

2000, available at http://www.epa.gov/

epaoswer/other/fossil/ffc-resp.pdf. 

36. General Accounting Office, ‘‘EPA 

Should Focus Its Chemical Use 

Inventory on Suspected Harmful 

Substances,’’ GAO/RCED-95-165, July 7, 

1995. 

37. Confidential Business Information 

Data Review, Georgia Department of 

Natural Resources, Docket entry 00125 

B2a-010 filed June 19, 1996, page 4. 

V. Statute and Executive Order Reviews 

A. Executive Order 12866 

Under Executive Order 12866, 

entitled Regulatory Planning and 

Review (58 FR 51735, October 4, 1993), 

the Office of Management and Budget 

(OMB) has determined that this is a 

‘‘significant regulatory action’’ under 

section 3(f) of the Executive Order, 

because it raises ‘‘novel legal or policy 

issues arising out of legal mandates’’

relating to information collection. This 

action was therefore submitted to OMB 

for review under this Executive Order, 

and any comments or changes made 

during that review have been 

documented in the public record. 

In addition, EPA has prepared an 

economic analysis of the potential 

impacts of this action, which is 

contained in a document entitled 

Economic Analysis for the Amended 

Inventory Update Rule (Ref. 7). The 

Agency, in promulgating this rule, is 

required under TSCA to consider the 

potential costs and benefits associated 

with IURA. The analysis was therefore 

used by the decision-makers to help in 

the selection of the final rule 

requirements presented in this 

document. This document is available 

as a part of the public version of the 

official record for this action and is 

briefly summarized here. 

EPA estimates that these amendments 

will cost between $72 and $87 million 

in the first reporting cycle, and $64 to 

884 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

$77 million in future reporting cycles, 

resulting in an annualized cost of $17 to 

$21 million over the next 20 years at a 

3% discount rate, and $19 to $22 

million at a 7% discount rate. 

Under these amendments, 

approximately 8,900 chemicals will be 

subject to reporting, and the Agency 

expects that it will receive 

approximately 26,800 submissions 

during the first submission period. In 

the first submission period, 

approximately 9,800 of those 

submissions (providing information on 

about 4,000 chemicals) will be full 

reports which include information 

found in Part III of revised reporting 

Form U. The remainder will report only 

company, site and chemical 

identification and manufacturing 

information (Parts I and II of revised 

Form U). In future submission periods 

with the addition of full reporting for 

inorganic chemicals, EPA expects to 

receive over 12,300 full forms, covering 

4,600 chemicals. In order to keep the 

reporting burden as low as possible, 

EPA is requiring that certain 

information be reported in ranges, that 

only the top 10 NAICS codes be 

accounted for when reporting industrial 

processing and use information, and 

that only readily obtainable information 

in Part III of revised Form U be reported. 

EPA analyzed the effects of a number 

of different alternatives for the rule, 

including variations in exemptions, 

different thresholds for both partial- 

(i.e., Parts I and II of revised Form U) 

and full-form (i.e., all parts of revised 

Form U) reporting, and various 

frequencies of collection. These options 

are explored further in the Economic 

Analysis (Ref. 6). 

EPA considered continuing the 

existing full exemption from IUR 

reporting for inorganic chemicals and 

adding a full exemption for site-limited 

petroleum streams. EPA examined the 

effects of keeping the partial-form 

threshold at 10,000 lbs. and considered 

full-form thresholds of 100,000, 

300,000, 500,000, and one million lbs., 

as well as a phased-in 100,000/500,000 

full-form threshold. EPA also 

considered changes in the reporting 

cycle, such as a one-time collection, and 

a 2–year cycle. 

EPA believes that this final rule 

represents an appropriate balance 

between the burden placed on industry 

to provide information and the Agency’s 

need for that information to fill its 

statutory obligations and fulfill its 

mission under TSCA and, as part of that 

mission, to provide information needed 

by other agencies (OSHA, NIOSH, 

CPSC, etc.). 

The costs of these amendments will 

be borne by two groups: the chemical 

industry and EPA. Industry costs are 

associated with complying with the 

regulation, while EPA costs are 

associated with administering the 

regulation and maintaining the collected 

data. In this rulemaking effort, EPA has 

made every attempt to balance data 

needs with collection costs and burden. 

Wherever possible, EPA has used 

exemptions or partial exemptions to 

reduce the number of reports that would 

potentially be filed by industry. EPA has 

provided a second threshold for 

reporting use information required in 

Part III of revised Form U, reducing the 

per report burden for submitters. 

Recognizing that this information will 

be used for screening level purposes, 

EPA has reduced the specificity of the 

information that will be required in 

three ways: (1) By requiring the 

reporting of only readily obtainable 

information for the processing and use 

exposure-related data; (2) by requiring 

that submitters report much of the 

information in ranges, reducing the 

need to generate specific estimates; and, 

(3) by requiring processing and use 

exposure-related information on only 

the top 10 uses/NAICS codes/IFCs, as 

determined by percent of the chemical’s 

volume. These steps limit the amount of 

information required, reducing the time 

and effort spent by the chemical 

industry in complying with the 

amendments. 

EPA assumes that the burden 

associated with reporting under IURA 

will decrease over time as industry’s 

familiarity with the reporting rule 

increases and to the extent that the 

information being reported remains 

somewhat constant from one 

submission period to the next. Projected 

costs to EPA are relatively small and are 

estimated to be $576,000 in the first 

reporting year, and $270,000 in 

subsequent reporting years. 

Substantial changes in the economic 

analysis have occurred since the 

economic analysis produced for the 

proposed rule, which is summarized in 

Unit XI. of the proposed rule (at 64 FR 

46799). The economic analysis was 

revised primarily due to changes in the 

final rule and changes to the cost 

methodology that more fully reflect 

potential industry burden. The revised 

economic analysis in support of this 

final rule can be found in the public 

version of the official record for this 

rulemaking (Ref. 6). 

Changes made since the proposal due 

to public comments or interagency 

review include deleting the average 

concentration data element, phasing-in 

full reporting for inorganic chemicals, 

adding a partial exemption for specific 

chemical substances for which the 

Agency has determined that the IURA 

processing and use information is of low 

current interest, and deleting the 

proposed CBI reassertion requirement. 

Changes made to the cost methodology 

include increasing burden estimates for 

reporting processing and use data. The 

increase in burden estimate was 

initiated in response to industry 

comment, and stemmed from 

differences in the survey instrument 

used to estimate costs of IURA in 1996, 

and the sample Form U in 1999. 

Estimates for reporting processing and 

use data were revised upward after 

reviewing public comments and the 

survey data. Differences between the 

survey instrument and the proposed 

Form U required EPA to aggregate 

certain responses. After reading the 

comments, EPA is using more 

conservative assumptions in this 

process. Therefore, it is more likely that 

EPA cost estimates overestimate, rather 

than underestimate, actual costs. 

B. Paperwork Reduction Act 

The OMB has approved the 

information collection requirements 

contained in this rule under the 

provisions of the Paperwork Reduction 

Act (PRA), 44 U.S.C. 3501 et seq., and 

has assigned OMB control number 

2070–0162. In accordance with the 

procedures at 5 CFR 1320.11, EPA 

submitted an Information Collection 

Request (ICR) document to OMB in 1999 

(identified as EPA ICR No. 1884.02), 

which is also included in the public 

docket that is described in Unit I.B.1. 

The information that will be reported 

under IURA will better enable EPA to 

screen thousands of chemical 

substances for potential risk. Risk 

screening is necessary in order to 

conserve limited Agency and industry 

resources by focusing risk assessment 

work on chemical substances for which 

some level of potential risk has been 

indicated. The new information that 

will be reported under this rule is 

critical to the risk screening process and 

is unavailable through other sources. 

Responses to this collection of 

information will be mandatory, 

pursuant to TSCA section 8(a), 15 U.S.C. 

2607(a). The regulations codifying the 

reporting requirements appear at 40 CFR 

part 710. CBI claims may be made for 

all or part of the information that will 

be reported under IURA. This action 

includes new substantiation procedures 

for CBI claims regarding plant site 

identity (See § 710.58(d) in the 

regulatory text). 

As a result of IURA, reporting sites 

will submit either a full report for a 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 885

chemical (which includes site 

identification, manufacturing 

information and processing and use 

data) or a partial report (which does not 

include processing and use data). For 

the first reporting cycle, inorganic 

chemical manufacturers will only 

submit partial reports while organic 

chemical manufacturers will submit a 

mix of partial and full reports. The 

IURA increases the average reporting 

burden for both partial and full reports 

compared to previous IUR reporting. 

Companies will continue to report 

under IURA once every 4 years, so the 

average annual IURA reporting burden 

and cost is calculated in the ICR as one 

quarter of the burden and cost in a 

reporting cycle. Thus, the results in the 

ICR differ slightly from those in the 

economic analysis prepared under 

Executive Order 12866, which 

calculates the annualized cost of 

multiple reporting cycles over a 20–year 

period. In addition, the economic 

analysis calculates the incremental 

increase in burden due to IURA, while 

the ICR calculates the total reporting 

and recordkeeping burden for IURA 

(i.e., the sum of the incremental IURA 

burden and the baseline IUR burden). 

Companies may continue to report for 

multiple chemicals on a single Form U 

(as revised). Companies generally 

submit one Form U per site, so the 

burden per Form U is approximately 

equivalent to the burden per site. 

For the first reporting cycle, the 

annual average burden for organic 

chemical manufacturers is estimated to 

be 121.5 to 152.4 hours per site at a cost 

of $8,313 to $10,448 (reflecting an 

average of 5.1 partial reports and 3.8 full 

reports per site). For inorganic chemical 

manufacturers, the annual average 

burden is estimated at 43.3 to 66.1 hours 

per site at a cost of $2,936 to $4,547 

(reflecting an average of 8.3 reports per 

site). These estimates include the time 

needed to review instructions; search 

data sources; gather and maintain the 

data needed; complete and review the 

collection of information; and transmit 

or otherwise disclose the information. 

The actual burden on any specific site 

may be different from this estimate 

depending on the complexity of the site, 

the number of IURA reportable 

chemicals at the site, and the profile of 

the site’s operations. There will be 

approximately 2,500 submitters for 

organic chemicals (including petroleum 

process streams), and 500 submitters for 

inorganic chemicals. For the first 

reporting cycle, the total annual burden 

is estimated to be approximately 

325,000 to 414,000 hours at a total 

estimated industry cost of $22.2 to $28.4 

million per year. 

Under the PRA, ‘‘burden’’ means the 

total time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, or disclose or provide 

information to or for a Federal agency. 

This includes the time needed to: 

Review instructions; develop, acquire, 

install, and utilize technology and 

systems for the purposes of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

As part of the PRA approval renewal 

process, which occurs every 3 years and 

includes an opportunity for public 

review and comment prior to OMB 

review, EPA intends to evaluate this 

collection activity, particularly the new 

exemption process, in order to 

demonstrate the practical utility of 

IURA information collection activities. 

The Agency will provide information in 

the ICR renewal document that details 

the chemicals evaluated under the 

exemption process, the exemption 

requests received, and the Agency’s 

decisions made, as well as provide 

information about the process elements 

and experiences. 

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. The currently approved 

ICR control numbers issued by OMB for 

various EPA regulations are listed in 40 

CFR part 9 and 48 CFR chapter 15. EPA 

is amending the table in 40 CFR part 9 

to list the OMB approval number for the 

information collection requirements 

contained in this final rule. This listing 

of the OMB control numbers and their 

subsequent codification in the CFR 

satisfies the display requirements of the 

PRA and OMB’s implementing 

regulations at 5 CFR part 1320. This ICR 

was previously subject to public notice 

and comment prior to OMB approval. 

Due to the technical nature of the table, 

EPA finds that further notice and 

comment is unnecessary. As a result, 

EPA finds that there is ‘‘good cause’’

under section 553(b)(B) of the 

Administrative Procedure Act, 5 U.S.C. 

553(b)(B), to amend this table without 

further notice and comment. 

C. Regulatory Flexibility Act 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.), the Agency hereby certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities. The factual 

basis for the Agency’s determination is 

presented in the small entity impact 

analysis prepared as part of the 

economic analysis for this rule (Ref. 6), 

and is briefly summarized here. 

Small entities include small 

businesses, small not-for-profit 

organizations, and small governmental 

jurisdictions (5 U.S.C. 601(6)). Because 

not-for-profit organizations and 

governmental jurisdictions will not be 

affected by this rule, ‘‘small entity’’ for 

purposes of this final rule is 

synonymous with ‘‘small business.’’

Section 601(3) of the RFA establishes as 

the default definition of small business 

the definition used in section 3 of the 

Small Business Act (15 U.S.C. 632) 

under which the Small Business 

Administration (SBA) establishes small 

business size standards (13 CFR 

121.201). The RFA recognizes, however, 

that it may be appropriate at times for 

Federal agencies to use an alternate 

definition of small business. As a result, 

RFA section 601(3) provides that an 

Agency may establish a different 

definition of small business after 

consultation with the SBA Office of 

Advocacy and after notice and an 

opportunity for public comment. EPA 

established a different definition of 

small business, found in the existing 

IUR at 40 CFR 704.3, in accordance with 

these requirements. Manufacturers who 

meet the 40 CFR 704.3 definition of 

small business are generally exempted 

from IUR reporting in 40 CFR 710.29. 

This exemption is retained under these 

amendments in § 710.49 and was not 

reopened for comment. In general, EPA 

strives to minimize potential adverse 

impacts on small entities when 

developing regulations to achieve the 

environmental and human health 

protection goals of the statute and the 

Agency. 

Despite the fact that small 

manufacturers that fully meet the 40 

CFR 704.3 definition are generally 

exempt from reporting under IUR, and 

thus are not significantly impacted by 

IURA, EPA conducted an analysis of the 

potential impact for submitters that 

meet only part of the 40 CFR 704.3 

definition. Specifically, an analysis of 

the potential impact was conducted 

only for those submitters that meet the 

first criterion in the 40 CFR 704.3 

definition of ‘‘small manufacturer or 

importer,’’ i.e., total annual sales of less 

than $40 million, but that do not meet 

the second criterion, i.e., production or 

import volume of less than 100,000 

pounds at all sites. 

886 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

For small manufacturers of organic 

chemicals subject to reporting, the 

Agency estimates the impact to be 

0.15% to 0.18% of sales. For small 

manufacturers of inorganic chemicals 

subject to reporting, the Agency 

estimates the impact to be 0.07% to 

0.20% of sales. 

D. Unfunded Mandates Reform Act 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (Public 

Law 104–4), EPA has determined that 

this regulatory action does not contain 

a Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or for the private sector 

in any 1 year. The analysis of the costs 

associated with this action are described 

in Unit V.A. In addition, EPA has 

determined that this rule does not 

significantly or uniquely affect small 

governments. Accordingly, this rule is 

not subject to the requirements of 

sections 202, 203, 204, and 205 of 

UMRA. 

E. Executive Order 13132 

Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications, because it will 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Orders 13084 and 13175 

Under Executive Order 13084, 

entitled Consultation and Coordination 

with Indian Tribal Governments (63 FR 

27655, May 19, 1998), EPA may not 

issue a regulation that is not required by 

statute, that significantly or uniquely 

affects the communities of Indian tribal 

governments, and that imposes 

substantial direct compliance costs on 

those communities, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by the tribal 

governments, or EPA consults with 

those governments. 

If EPA complies by consulting, 

Executive Order 13084 requires EPA to 

provide to OMB, in a separately 

identified section of the preamble to the 

rule, a description of the extent of EPA’s 

prior consultation with representatives 

of affected tribal governments, a 

summary of the nature of their concerns, 

and a statement supporting the need to 

issue the regulation. In addition, 

Executive Order 13084 requires EPA to 

develop an effective process permitting 

elected officials and other 

representatives of Indian tribal 

governments ‘‘to provide meaningful 

and timely input in the development of 

regulatory policies on matters that 

significantly or uniquely affect their 

communities.’’

This rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments, nor does it 

impose substantial direct compliance 

costs on such communities. 

Accordingly, the requirements of 

section 3(b) of Executive Order 13084 

do not apply to this rule. 

On November 6, 2000, the President 

issued Executive Order 13175, entitled 

Consultation and Coordination with 

Indian Tribal Governments (65 FR 

67249). Executive Order 13175 took 

effect on January 6, 2001, and revokes 

Executive Order 13084 as of that date. 

EPA developed this rule, however, 

during the period when Executive Order 

13084 was in effect; thus, EPA 

addressed tribal considerations under 

Executive Order 13084. 

G. Executive Order 13211

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This final rule modifies the existing IUR 

reporting and recordkeeping 

requirements that apply to chemical 

manufacturers and importers. As such, 

we have concluded that this rule is not 

likely to have adverse energy effects. 

H. Executive Order 13045 

This rulemaking does not require 

special consideration pursuant to the 

terms of Executive Order 13045, entitled 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

because it is not likely to have an 

annual effect on the economy of $100 

million or more and it does not have a 

potential effect or impact on children. 

As discussed in this preamble, this rule 

will provide the Agency with 

information needed to screen and 

prioritize chemical substances, 

including information on potential 

exposures to children. This information 

will allow the Agency and others to 

determine which chemical substances 

have potential risks, allowing the 

Agency and others to take appropriate 

action to investigate and mitigate those 

risks. 

I. National Technology Transfer and 

Amendment Act 

This regulatory action does not 

involve any technical standards that 

would require Agency consideration of 

voluntary consensus standards pursuant 

to section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, 12(d) (15 U.S.C. 272 note). Section 

12(d) of NTTAA directs EPA to use 

voluntary consensus standards in its 

regulatory activities unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA requires 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

J. Executive Order 12898

Pursuant to Executive Order 12898, 

entitled Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994), the Agency has considered 

environmental justice-related issues 

with regard to the potential impacts of 

this action on the environmental and 

health conditions in minority and lowincome populations. The Agency 

believes that the information collected 

under this rule will assist EPA and 

others in determining the risks and 

exposures associated with the chemicals 

covered by the rule. Although not 

directly impacting environmental 

justice-related concerns, this 

information will enable the Agency to 

protect human health and the 

environment by being better able to 

prioritize chemical substances of 

concern. 

K. Executive Order 12630

EPA has complied with Executive 

Order 12630, entitled Governmental 

Actions and Interference with 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 887

Constitutionally Protected Property 

Rights (53 FR 8859, March 15, 1988), by 

examining the takings implications of 

this rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’’ issued under the Executive 

Order. 

L. Executive Order 12988 

In issuing this rule, EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct, as 

required by section 3 of Executive Order 

12988, titled Civil Justice Reform (61 FR 

4729, February 7, 1996). 

VI. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

Agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and the Comptroller General of 

the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2).

List of Subjects in 40 CFR Part 9

Environmental protection, Reporting 

and recordkeeping requirements.

List of Subjects in 40 CFR Part 710

Environmental protection, Chemicals, 

Hazardous materials, Reporting and 

recordkeeping requirements.

List of Subjects in 40 CFR Part 723

Environmental protection, Chemicals, 

Hazardous materials, Reporting and 

recordkeeping requirements.

Dated: December 18, 2002. 

Stephen L. Johnson, 

Assistant Administrator for Prevention, 

Pesticides and Toxic Substances.

Therefore, 40 CFR chapter I is 

amended as follows: 

1. Part 9 is amended as follows:

PART 9—[AMENDED] 

a. The authority citation for part 9 

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136-136y; 

15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671, 

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 

1321, 1326, 1330, 1342, 1344, 1345 (d) and 

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 

1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 

243, 246, 300f, 300g, 300g-1, 300g-2, 300g-3, 

300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 

300j-4, 300j-9, 1857 et seq., 6901-6992k, 

7401-7671q, 7542, 9601-9657, 11023, 11048.

b. In § 9.1, the table is amended by 

revising the heading ‘‘Inventory 

Reporting Regulations’’ to read ‘‘TSCA 

Chemical Inventory Regulations’’; 

removing the existing entry under the 

heading; and adding the following 

entries to read as follows:

§ 9.1 OMB approvals under the Paperwork 

Reduction Act.

* * * * *

40 CFR citation OMB Control No. 

*****

TSCA Chemical Inventory Regulations 

Part 710, Subpart B.2070–0070

Part 710, Subpart C.2070–0162 

*****

* * * * *

2. Part 710 is amended as follows:

PART 710—[AMENDED] 

a. The authority citation for part 710 

continues to read as follows:

Authority: 15 U.S.C. 2607(a).

b. Revise the part heading and table 

of contents for part 710 to read as 

follows:

PART 710—TSCA CHEMICAL 

INVENTORY REGULATIONS

Subpart A—General Provisions 

Sec. 

710.1 Scope and compliance. 

710.3 Definitions. 

710.4 Scope of the inventory.

Subpart B—2002 Inventory Update 

Reporting 

710.23 Definitions. 

710.25 Chemical substances for which 

information must be reported. 

710.26 Chemical substances for which 

information is not required. 

710.28 Persons who must report. 

710.29 Persons not subject to this 

subpart. 

710.30 Activities for which reporting 

is not required. 

710.32 Reporting information to EPA. 

710.33 When to report. 

710.35 Duplicative reporting. 

710.37 Recordkeeping requirements. 

710.38 Confidentiality. 

710.39 How do I submit the required 

information?

Subpart C—Inventory Update 

Reporting for 2006 and Beyond 

710.43 Definitions. 

710.45 Chemical substances for which 

information must be reported. 

710.46 Chemical substances for which 

information is not required. 

710.48 Persons who must report. 

710.49 Persons not subject to this 

subpart. 

710.50 Activities for which reporting 

is not required. 

710.52 Reporting information to EPA. 

710.53 When to report. 

710.55 Duplicative reporting. 

710.57 Recordkeeping requirements. 

710.58 Confidentiality. 

710.59 Availability of reporting form 

and instructions. 

c. Sections 710.1 through 710.4 are 

designated as subpart A and the subpart 

heading is added to read as follows:

Subpart A—General Provisions 

d. Revise § 710.1 to read as follows:

§ 710.1 Scope and compliance. 

(a) This part establishes regulations 

governing reporting and recordkeeping 

by certain persons who manufacture, 

import, or process chemical substances 

for commercial purposes under section 

8(a) of the Toxic Substances Control Act 

(15 U.S.C. 2607(a)) (TSCA). Section 8(a) 

authorizes the Administrator to require 

reporting of information necessary for 

administration of the Act and requires 

EPA to issue regulations for the purpose 

of compiling and keeping current an 

inventory of chemical substances 

manufactured or processed for a 

commercial purpose, as required by 

section 8(b) of the Act. Following an 

initial reporting period, EPA published 

an initial inventory of chemical 

substances manufactured, processed, or 

imported for commercial purposes. In 

accordance with section 8(b), EPA 

periodically amends the inventory to 

include new chemical substances which 

are manufactured or imported for a 

commercial purpose and reported under 

section 5(a)(1) of the Act. EPA also 

revises the categories of chemical 

substances and makes other 

amendments as appropriate. 

(b) The regulations in this part apply 

to the activities associated with the 

compilation of the TSCA Chemical 

Inventory and the update of information 

on a subset of the chemical substances 

included on the Inventory. The 

Inventory Update regulations were 

888 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

amended in 2002; however, these 

amendments apply to updates after 

2002, not to the 2002 update. In order 

to prevent confusion as to which 

regulations apply to which update, EPA 

has preserved the provisions that apply 

to the 2002 update in subpart B. The 

new and revised requirements that 

apply to updates after 2002 appear in 

subpart C. Prior to January 1, 2003, the 

regulations in subpart B of this part are 

effective for purposes of Inventory 

update activities. As of January 1, 2003, 

subpart C is effective for purposes of 

Inventory update activities. The Agency 

intends to remove subpart B from the 

CFR once the 2002 update is complete. 

(c) Section 15(3) of TSCA makes it 

unlawful for any person to fail or refuse 

to submit information required under 

these reporting regulations. In addition, 

section 15(3) makes it unlawful for any 

person to fail to keep, and permit access 

to, records required by these 

regulations. Section 16 provides that 

any person who violates a provision of 

section 15 is liable to the United States 

for a civil penalty and may be 

criminally prosecuted. Pursuant to 

section 17, the Government may seek 

judicial relief to compel submission of 

section 8(a) information and to 

otherwise restrain any violation of 

section 15. (EPA does not intend to 

concentrate its enforcement efforts on 

insignificant clerical errors in 

reporting.) 

(d) Each person who reports under 

these regulations must maintain records 

that document information reported 

under these regulations and, in 

accordance with the Act, permit access 

to, and the copying of, such records by 

EPA officials.

§ 710.2 [Removed] 

e. Remove § 710.2. 

f. Add § 710.3 to subpart A to read as 

follows:

§ 710.3 Definitions. 

In addition to the definitions in 

§ 704.3 of this chapter, the following 

definitions apply to this part: 

(a) The following terms will have the 

meaning contained in the Federal Food, 

Drug, and Cosmetic Act, 21 U.S.C. 321 

et seq., and the regulations issued under 

such Act: Cosmetic, device, drug, food, 

and food additive. In addition, the term 

food includes poultry and poultry 

products, as defined in the Poultry 

Products Inspection Act, 21 U.S.C. 453 

et seq.; meats and meat food products, 

as defined in the Federal Meat 

Inspection Act, 21 U.S.C. 60 et seq.; and 

eggs and egg products, as defined in the 

Egg Products Inspection Act, 21 U.S.C. 

1033 et seq. 

(b) The term pesticide will have the 

meaning contained in the Federal 

Insecticide, Fungicide, and Rodenticide 

Act, 7 U.S.C. 136 et seq., and the 

regulations issued thereunder. 

(c) The following terms will have the 

meaning contained in the Atomic 

Energy Act of 1954, 42 U.S.C. 2014 et 

seq., and the regulations issued 

thereunder: Byproduct material, source 

material, and special nuclear material. 

(d) The following definitions also 

apply to this part: 

Act means the Toxic Substances 

Control Act, 15 U.S.C. 2601 et seq. 

Administrator means the 

Administrator of the U.S. 

Environmental Protection Agency, any 

employee or authorized representative 

of the Agency to whom the 

Administrator may either herein or by 

order delegate his/her authority to carry 

out his/her functions, or any other 

person who will by operation of law be 

authorized to carry out such functions. 

An article is a manufactured item: 

(1) Which is formed to a specific 

shape or design during manufacture, 

(2) Which has end use function(s) 

dependent in whole or in part upon its 

shape or design during end use, and 

(3) Which has either no change of 

chemical composition during its end 

use or only those changes of 

composition which have no commercial 

purpose separate from that of the article 

and that may occur as described in 

§ 710.4(d)(5); except that fluids and 

particles are not considered articles 

regardless of shape or design. 

Byproduct means a chemical 

substance produced without separate 

commercial intent during the 

manufacture or processing of another 

chemical substance(s) or mixture(s). 

Chemical substance means any 

organic or inorganic substance of a 

particular molecular identity, including 

any combination of such substances 

occurring in whole or in part as a result 

of a chemical reaction or occurring in 

nature, and any chemical element or 

uncombined radical; except that 

‘‘chemical substance’’ does not include: 

(1) Any mixture, 

(2) Any pesticide when manufactured, 

processed, or distributed in commerce 

for use as a pesticide, 

(3) Tobacco or any tobacco product, 

but not including any derivative 

products, 

(4) Any source material, special 

nuclear material, or byproduct material, 

(5) Any pistol, firearm, revolver, 

shells, and cartridges, and 

(6) Any food, food additive, drug, 

cosmetic, or device, when 

manufactured, processed, or distributed 

in commerce for use as a food, food 

additive, drug, cosmetic, or device. 

Commerce means trade, traffic, 

transportation, or other commerce: 

(1) Between a place in a State and any 

place outside of such State, or 

(2) Which affects trade, traffic, 

transportation, or commerce described 

in paragraph (1) of this definition. 

Distribute in commerce and 

distribution in commerce, when used to 

describe an action taken with respect to 

a chemical substance or mixture or 

article containing a substance or 

mixture, mean to sell or the sale of the 

substance, mixture, or article in 

commerce; to introduce or deliver for 

introduction into commerce, or the 

introduction or delivery for introduction 

into commerce of the substance, 

mixture, or article; or to hold or the 

holding of the substance, mixture, or 

article after its introduction into 

commerce. 

EPA means the U.S. Environmental 

Protection Agency. 

Importer means any person who 

imports any chemical substance or any 

chemical substance as part of a mixture 

or article into the customs territory of 

the U.S. and includes: 

(1) The person primarily liable for the 

payment of any duties on the 

merchandise, or 

(2) An authorized agent acting on his/

her behalf (as defined in 19 CFR 1.11). 

Impurity means a chemical substance 

which is unintentionally present with 

another chemical substance. 

Intermediate means any chemical 

substance: 

(1) Which is intentionally removed 

from the equipment in which it is 

manufactured, and 

(2) Which either is consumed in 

whole or in part in chemical reaction(s) 

used for the intentional manufacture of 

other chemical substance(s) or 

mixture(s), or is intentionally present 

for the purpose of altering the rate of 

such chemical reaction(s).

Note: The equipment in which it was 

manufactured includes the reaction vessel in 

which the chemical substance was 

manufactured and other equipment which is 

strictly ancillary to the reaction vessel, and 

any other equipment through which the 

chemical substance may flow during a 

continuous flow process, but does not 

include tanks or other vessels in which the 

chemical substance is stored after its 

manufacture.

Manufacture means to manufacture, 

produce, or import for commercial 

purposes. 

Manufacture or import ‘‘for 

commercial purposes’’ means to 

manufacture, produce, or import with 

the purpose of obtaining an immediate 

or eventual commercial advantage, and 

includes, for example, the manufacture 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 889

or import of any amount of a chemical 

substance or mixture: 

(1) For commercial distribution, 

including for test marketing, or 

(2) For use by the manufacturer, 

including use for product research and 

development, or as an intermediate. 

Mixture means any combination of 

two or more chemical substances if the 

combination does not occur in nature 

and is not, in whole or in part, the result 

of a chemical reaction; except that 

‘‘mixture’’ does include: 

(1) Any combination which occurs, in 

whole or in part, as a result of a 

chemical reaction if the combination 

could have been manufactured for 

commercial purposes without a 

chemical reaction at the time the 

chemical substances comprising the 

combination were combined and if, after 

the effective date or premanufacture 

notification requirements, none of the 

chemical substances comprising the 

combination is a new chemical 

substance, and 

(2) Hydrates of a chemical substance 

or hydrated ions formed by association 

of a chemical substance with water. 

New chemical substance means any 

chemical substance which is not 

included in the inventory compiled and 

published under section 8(b) of the Act. 

Person means any natural or juridical 

person including any individual, 

corporation, partnership, or association, 

any State or political subdivision 

thereof, or any municipality, any 

interstate body and any department, 

agency, or instrumentality of the Federal 

Government. 

Process means the preparation of a 

chemical substance or mixture, after its 

manufacture, for distribution in 

commerce: 

(1) In the same form or physical state 

as, or in a different form or physical 

state from, that in which it was received 

by the person so preparing such 

substance or mixture, or 

(2) As part of a mixture or article 

containing the chemical substance or 

mixture. 

Process ‘‘for commercial purposes’’

means to process: 

(1) For distribution in commerce, 

including for test marketing purposes, 

or 

(2) For use as an intermediate. 

Processor means any person who 

processes a chemical substance or 

mixture. 

Site means a contiguous property 

unit. Property divided only by a public 

right-of-way will be considered one site. 

There may be more than one 

manufacturing plant on a single site. For 

the purposes of imported chemical 

substances, the site will be the business 

address of the importer. 

Small quantities for purposes of 

scientific experimentation or analysis or 

chemical research on, or analysis of, 

such substance or another substance, 

including any such research or analysis 

for the development of a product

(hereinafter sometimes shortened to 

small quantities for research and 

development) means quantities of a 

chemical substance manufactured, 

imported, or processed or proposed to 

be manufactured, imported, or 

processed that: 

(1) Are no greater than reasonably 

necessary for such purposes, and 

(2) After the publication of the revised 

inventory, are used by, or directly under 

the supervision of, a technically 

qualified individual(s).

Note: Any chemical substances 

manufactured, imported, or processed in 

quantities less than 1,000 lbs. (454 kg) 

annually will be presumed to be 

manufactured, imported, or processed for 

research and development purposes. No 

person may report for the inventory any 

chemical substance in such quantities unless 

that person can certify that the substance was 

not manufactured, imported, or processed 

solely in small quantities for research and 

development, as defined in this section.

State means any State of the United 

States, the District of Columbia, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, the Canal Zone, 

American Samoa, the Northern Mariana 

Islands, or any other territory or 

possession of the United States. 

Technically qualified individual

means a person: 

(1) Who because of his/her education, 

training, or experience, or a 

combination of these factors, is capable 

of appreciating the health and 

environmental risks associated with the 

chemical substance which is used under 

his/her supervision, 

(2) Who is responsible for enforcing 

appropriate methods of conducting 

scientific experimentation, analysis, or 

chemical research in order to minimize 

such risks, and 

(3) Who is responsible for the safety 

assessments and clearances related to 

the procurement, storage, use, and 

disposal of the chemical substance as 

may be appropriate or required within 

the scope of conducting the research 

and development activity. The 

responsibilities in this paragraph may 

be delegated to another individual, or 

other individuals, as long as each meets 

the criteria in paragraph (1) of this 

definition. 

Test marketing means the distribution 

in commerce of no more than a 

predetermined amount of a chemical 

substance, mixture, or article containing 

that chemical substance or mixture, by 

a manufacturer or processor to no more 

than a defined number of potential 

customers to explore market capability 

in a competitive situation during a 

predetermined testing period prior to 

the broader distribution of that chemical 

substance, mixture, or article in 

commerce. 

United States, when used in the 

geographic sense, means all of the 

States, territories, and possessions of the 

United States.

§ 710.4 [Amended] 

g. Section 710.4 is amended as 

follows: 

i. In paragraphs (a), (c)(1), (c)(2), 

(c)(3), and the Note at the end of 

paragraph (d)(8), change the references 

to ‘‘§ 710.2’’, ‘‘§ 710.2(h)’’, ‘‘§ 710.2(q)’’, 

‘‘§ 710.2(y)’’, and ‘‘§ 710.2(n)’’, 

respectively to ‘‘§ 710.3(d)’’. 

ii. In paragraph (b)(2), change ‘‘shall’’

to ‘‘will’’. 

iii. In the Note to paragraph (d)(2), 

change ‘‘premanufacturing’’ to 

‘‘premanufacture’’. 

iv. In paragraph (d)(5), change 

‘‘photographic, films’’ to ‘‘photographic 

films’’. 

h. Sections 710.25 through 710.39 are 

designated as subpart B and the subpart 

heading is added to read as follows:

Subpart B—2002 Inventory Update 

Reporting 

i. Add § 710.23 to subpart B to read 

as follows:

§ 710.23 Definitions. 

In addition to the definitions in 

§ 704.3 of this chapter and § 710.3, the 

following definitions also apply to 

subpart B of this part. 

Master Inventory File means EPA’s 

comprehensive list of chemical 

substances which constitute the 

Chemical Substances Inventory 

compiled under section 8(b) of the Act. 

It includes substances reported under 

subpart A of this part and substances 

reported under part 720 of this chapter 

for which a Notice of Commencement of 

Manufacture or Import has been 

received under § 720.120 of this chapter. 

Non-isolated intermediate means any 

intermediate that is not intentionally 

removed from the equipment in which 

it is manufactured, including the 

reaction vessel in which it is 

manufactured, equipment which is 

ancillary to the reaction vessel, and any 

equipment through which the substance 

passes during a continuous flow 

process, but not including tanks or other 

vessels in which the substance is stored 

after its manufacture. 

890 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

Site-limited means a chemical 

substance is manufactured and 

processed only within a site and is not 

distributed for commercial purposes as 

a substance or as part of a mixture or 

article outside the site. Imported 

substances are never site-limited.

§ 710.39 [Amended] 

j. Section 710.39 is amended as 

follows: 

i. Revise the section heading to read 

‘‘How do I submit the required 

information?’’

ii. In paragraph (a), the second 

sentence is revised to read: ‘‘Copies of 

the Form U are available from EPA at 

the address set forth in paragraph (c) of 

this section and from the EPA Internet 

Home Page at http://www.epa.gov/oppt/

iur/iur02/index.htm.’’

iii. In the introductory text of 

paragraph (c), change ‘‘1994’’ to ‘‘1998’’. 

iv. In paragraph (c)(1), insert a period 

after ‘‘554–1404’’ and remove the 

remainder of the sentence. 

v. In paragraph (c)(3), change ‘‘7408,’’

to ‘‘7408M,’’. 

vi. In paragraph (d), change 

‘‘Document Control Officer’’ to ‘‘OPPT 

Document Control Officer’’ and change 

‘‘7407,’’ to ‘‘7407M,’’. 

k. Add a new subpart C to read as 

follows:

Subpart C—Inventory Update 

Reporting for 2006 and Beyond

§ 710.43 Definitions. 

In addition to the definitions in 

§ 704.3 of this chapter and § 710.3, the 

following definitions also apply to 

subpart C of this part: 

Commercial use means the use of a 

chemical substance or mixture in a 

commercial enterprise providing 

saleable goods or services (e.g., dry 

cleaning establishment, painting 

contractor). 

Consumer use means the use of a 

chemical substance that is directly, or as 

part of a mixture, sold to or made 

available to consumers for their use in 

or around a permanent or temporary 

household or residence, in or around a 

school, or in or around recreational 

areas. 

Industrial use means use at a site at 

which one or more chemical substances 

or mixtures are manufactured (including 

imported) or processed. 

Intended for use by children means 

the chemical substance or mixture is 

used in or on a product that is 

specifically intended for use by children 

age 14 or younger. A chemical substance 

or mixture is intended for use by 

children when the submitter answers 

‘‘yes’’ to at least one of the following 

questions for the product into which the 

submitter’s chemical substance or 

mixture is incorporated: 

(1) Is the product commonly 

recognized (i.e., by a reasonable person) 

as being intended for children age 14 or 

younger? 

(2) Does the manufacturer of the 

product state through product labeling 

or other written materials that the 

product is intended for or will be used 

by children age 14 or younger? 

(3) Is the advertising, promotion, or 

marketing of the product aimed at 

children age 14 or younger? 

Known to or reasonably ascertainable 

by means all information in a person’s 

possession or control, plus all 

information that a reasonable person 

similarly situated might be expected to 

possess, control, or know. 

Master Inventory File means EPA’s 

comprehensive list of chemical 

substances which constitute the 

Chemical Substances Inventory 

compiled under section 8(b) of the Act. 

It includes substances reported under 

subpart A of this part and substances 

reported under part 720 of this chapter 

for which a Notice of Commencement of 

Manufacture or Import has been 

received under § 720.120 of this chapter. 

Non-isolated intermediate means any 

intermediate that is not intentionally 

removed from the equipment in which 

it is manufactured, including the 

reaction vessel in which it is 

manufactured, equipment which is 

ancillary to the reaction vessel, and any 

equipment through which the substance 

passes during a continuous flow 

process, but not including tanks or other 

vessels in which the substance is stored 

after its manufacture. 

Readily obtainable information means 

information which is known by 

management and supervisory employees 

of the submitter company who are 

responsible for manufacturing, 

processing, distributing, technical 

services, and marketing of the reportable 

chemical substance. Extensive file 

searches are not required. 

Reasonably likely to be exposed

means an exposure to a chemical 

substance which, under foreseeable 

conditions of manufacture (including 

import), processing, distribution in 

commerce, or use of the chemical 

substance, is more likely to occur than 

not to occur. Such exposures would 

normally include, but would not be 

limited to, activities such as charging 

reactor vessels, drumming, bulk loading, 

cleaning equipment, maintenance 

operations, materials handling and 

transfers, and analytical operations. 

Covered exposures include exposures 

through any route of entry (inhalation, 

ingestion, skin contact, absorption, etc.), 

but excludes accidental or theoretical 

exposures. 

Repackaging means the physical 

transfer of a chemical substance or 

mixture, as is, from one container to 

another container or containers in 

preparation for distribution of the 

chemical substance or mixture in 

commerce. 

Reportable chemical substance means 

a chemical substance described in 

§ 710.45. 

Reporting year means the calendar 

year in which information to be 

reported to EPA during an IUR 

submission period is generated, i.e., 

calendar year 2005 and the calendar 

year at 4–year intervals thereafter. 

Site-limited means a chemical 

substance is manufactured and 

processed only within a site and is not 

distributed for commercial purposes as 

a substance or as part of a mixture or 

article outside the site. Imported 

substances are never site-limited. 

Although a site-limited chemical 

substance is not distributed for 

commercial purposes outside the site at 

which it is manufactured and processed, 

the substance is considered to have been 

manufactured and processed for 

commercial purposes. 

Submission period means the period 

in which the information generated 

during the reporting year is submitted to 

EPA. 

Use means any utilization of a 

chemical substance or mixture that is 

not otherwise covered by the terms 

manufacture or process. Relabeling or 

redistributing a container holding a 

chemical substance or mixture where no 

repackaging of the chemical substance 

or mixture occurs does not constitute 

use or processing of the chemical 

substance or mixture.

§ 710.45 Chemical substances for which 

information must be reported. 

Any chemical substance which is in 

the Master Inventory File at the 

beginning of a submission period 

described in § 710.53, unless the 

chemical substance is specifically 

excluded by § 710.46.

§ 710.46 Chemical substances for which 

information is not required. 

The following groups or categories of 

chemical substances are exempted from 

some or all of the reporting 

requirements of this subpart, with the 

following exception: A chemical 

substance described in paragraph (a)(1), 

(a)(2), or (a)(4), or (b) of this section is 

not exempted from any of the reporting 

requirements of this subpart if that 

substance is the subject of a rule 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 891

proposed or promulgated under section 

4, 5(a)(2), 5(b)(4), or 6 of the Act, or is 

the subject of an order issued under 

section 5(e) or 5(f) of the Act, or is the 

subject of relief that has been granted 

under a civil action under section 5 or 

7 of the Act. 

(a) Full exemptions. The following 

categories of chemical substances are 

exempted from the reporting 

requirements of this subpart. 

(1) Polymers. (i) Any chemical 

substance described with the word 

fragments ‘‘*polym*’’, ‘‘*alkyd’’, or 

‘‘*oxylated’’ in the Chemical Abstracts 

Service Index or Preferred 

Nomenclature in the Chemical 

Substance Identities section of the 1985 

edition of the Inventory or in the Master 

Inventory File, where the asterisk (*) 

indicates that any sets of characters may 

precede, or follow, the character string 

defined. 

(ii) Any chemical substance which is 

identified in the 1985 edition of the 

Inventory or the Master Inventory File 

as siloxane and silicone, silsesquioxane, 

a protein (albumin, casein, gelatin, 

gluten, hemoglobin), an enzyme, a 

polysaccharide (starch, cellulose, gum), 

rubber, or lignin. 

(iii) This exclusion does not apply to 

a polymeric substance that has been 

hydrolyzed, depolymerized, or 

otherwise chemically modified, except 

in cases where the intended product of 

this reaction is totally polymeric in 

structure. 

(2) Microorganisms. Any combination 

of chemical substances that is a living 

organism, and that meets the definition 

of ‘‘microorganism’’ at § 725.3 of this 

chapter. Any chemical substance 

produced from a living microorganism 

is reportable under this subpart unless 

otherwise excluded. 

(3) Naturally occurring chemical 

substances. Any naturally occurring 

chemical substance, as described in 

§ 710.4(b). The applicability of this 

exclusion is determined in each case by 

the specific activities of the person who 

manufactures the substance in question. 

Some chemical substances can be 

manufactured both as described in 

§ 710.4(b) and by means other than 

those described in § 710.4(b). If a person 

described in § 710.48 manufactures a 

chemical substance by means other than 

those described in § 710.4(b), the person 

must report regardless of whether the 

substance also could have been 

produced as described in § 710.4(b). 

Any chemical substance that is 

produced from such a naturally 

occurring chemical substance described 

in § 710.4(b) is reportable unless 

otherwise excluded. 

(4) Certain forms of natural gas. 

Chemical substances with the following 

Chemical Abstract Service (CAS) 

Registry Numbers: CAS No. 64741–48–

6, Natural gas (petroleum), raw liquid 

mix; CAS No. 68919–39–1, Natural gas 

condensates; CAS No. 8006–61–9, 

Gasoline natural; CAS No. 68425–31–0, 

Gasoline (natural gas), natural; CAS No. 

8006–14–2, Natural gas; and CAS No. 

68410–63–9, Natural gas, dried. 

(b) Partial exemptions. The following 

groups of chemical substances are 

partially exempted from the reporting 

requirements of this subpart (i.e., the 

information described in § 710.52(c)(4) 

need not be reported for these 

substances). Such chemical substances 

are not excluded from the other 

reporting requirements under this 

subpart. A chemical substance 

described in paragraph (b)(3) of this 

section qualifies for a partial reporting 

exemption during the 2006 submission 

period; in subsequent submission 

periods, the chemical substances 

described in paragraph (b)(3) of this 

section will be subject to full reporting 

under this subpart (i.e., all of the 

information described in this subpart 

must be reported), unless otherwise 

exempted. 

(1) Petroleum process streams. EPA 

has designated the following chemical 

substances, listed by CAS Number, as 

partially exempt from reporting under 

the IUR.

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING

CAS No. Product 

7732–18–5 ............... Water 

8002–05–9 ............... Petroleum 

8002–74–2 ............... Paraffin waxes and hydrocarbon waxes 

8006–20–0 ............... Fuel gases, low and medium B.T.U. 

8008–20–6 ............... Kerosine (petroleum) 

8009–03–8 ............... Petrolatum 

8012–95–1 ............... Paraffin oils 

8030–30–6 ............... Naphtha 

8032–32–4 ............... Ligroine 

8042–47–5 ............... White mineral oil (petroleum) 

8052–41–3 ............... Stoddard solvent 

8052–42–4 ............... Asphalt 

63231–60–7 ............. Paraffin waxes and hydrocarbon waxes, microcryst. 

64741–41–9 ............. Naphtha (petroleum), heavy straight-run 

64741–42–0 ............. Naphtha (petroleum), full-range straight-run 

64741–43–1 ............. Gas oils (petroleum), straight-run 

64741–44–2 ............. Distillates (petroleum), straight-run middle 

64741–45–3 ............. Residues (petroleum), atm. tower 

64741–46–4 ............. Naphtha (petroleum), light straight-run 

64741–47–5 ............. Natural gas condensates (petroleum) 

64741–49–7 ............. Condensates (petroleum), vacuum tower 

64741–50–0 ............. Distillates (petroleum), light paraffinic 

64741–51–1 ............. Distillates (petroleum), heavy paraffinic 

64741–52–2 ............. Distillates (petroleum), light naphthenic 

64741–53–3 ............. Distillates (petroleum), heavy naphthenic 

64741–54–4 ............. Naphtha (petroleum), heavy catalytic cracked 

64741–55–5 ............. Naphtha (petroleum), light catalytic cracked 

64741–56–6 ............. Residues (petroleum), vacuum 

64741–57–7 ............. Gas oils (petroleum), heavy vacuum 

64741–58–8 ............. Gas oils (petroleum), light vacuum 

64741–59–9 ............. Distillates (petroleum), light catalytic cracked 

892 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

64741–60–2 ............. Distillates (petroleum), intermediate catalytic cracked 

64741–61–3 ............. Distillates (petroleum), heavy catalytic cracked 

64741–62–4 ............. Clarified oils (petroleum), catalytic cracked 

64741–63–5 ............. Naphtha (petroleum), light catalytic reformed 

64741–64–6 ............. Naphtha (petroleum), full-range alkylate 

64741–65–7 ............. Naphtha (petroleum), heavy alkylate 

64741–66–8 ............. Naphtha (petroleum), light alkylate 

64741–67–9 ............. Residues (petroleum), catalytic reformer fractionator 

64741–68–0 ............. Naphtha (petroleum), heavy catalytic reformed 

64741–69–1 ............. Naphtha (petroleum), light hydrocracked 

64741–70–4 ............. Naphtha (petroleum), isomerization 

64741–73–7 ............. Distillates (petroleum), alkylate 

64741–74–8 ............. Naphtha (petroleum), light thermal cracked 

64741–75–9 ............. Residues (petroleum), hydrocracked 

64741–76–0 ............. Distillates (petroleum), heavy hydrocracked 

64741–77–1 ............. Distillates (petroleum), light hydrocracked 

64741–78–2 ............. Naphtha (petroleum), heavy hydrocracked 

64741–79–3 ............. Coke (petroleum) 

64741–80–6 ............. Residues (petroleum), thermal cracked 

64741–81–7 ............. Distillates (petroleum), heavy thermal cracked 

64741–82–8 ............. Distillates (petroleum), light thermal cracked 

64741–83–9 ............. Naphtha (petroleum), heavy thermal cracked 

64741–84–0 ............. Naphtha (petroleum), solvent-refined light 

64741–85–1 ............. Raffinates (petroleum), sorption process 

64741–86–2 ............. Distillates (petroleum), sweetened middle 

64741–87–3 ............. Naphtha (petroleum), sweetened 

64741–88–4 ............. Distillates (petroleum), solvent-refined heavy paraffinic 

64741–89–5 ............. Distillates (petroleum), solvent-refined light paraffinic 

64741–90–8 ............. Gas oils (petroleum), solvent-refined 

64741–91–9 ............. Distillates (petroleum), solvent-refined middle 

64741–92–0 ............. Naphtha (petroleum), solvent-refined heavy 

64741–95–3 ............. Residual oils (petroleum), solvent deasphalted 

64741–96–4 ............. Distillates (petroleum), solvent-refined heavy naphthenic 

64741–97–5 ............. Distillates (petroleum), solvent-refined light naphthenic 

64741–98–6 ............. Extracts (petroleum), heavy naphtha solvent 

64741–99–7 ............. Extracts (petroleum), light naphtha solvent 

64742–01–4 ............. Residual oils (petroleum), solvent-refined 

64742–03–6 ............. Extracts (petroleum), light naphthenic distillate solvent 

64742–04–7 ............. Extracts (petroleum), heavy paraffinic distillate solvent 

64742–05–8 ............. Extracts (petroleum), light paraffinic distillate solvent 

64742–06–9 ............. Extracts (petroleum), middle distillate solvent 

64742–07–0 ............. Raffinates (petroleum), residual oil decarbonization 

64742–08–1 ............. Raffinates (petroleum), heavy naphthenic distillate decarbonization 

64742–09–2 ............. Raffinates (petroleum), heavy paraffinic distillate decarbonization 

64742–10–5 ............. Extracts (petroleum), residual oil solvent 

64742–11–6 ............. Extracts (petroleum), heavy naphthenic distillate solvent 

64742–12–7 ............. Gas oils (petroleum), acid-treated 

64742–13–8 ............. Distillates (petroleum), acid-treated middle 

64742–14–9 ............. Distillates (petroleum), acid-treated light 

64742–15–0 ............. Naphtha (petroleum), acid-treated 

64742–16–1 ............. Petroleum resins 

64742–18–3 ............. Distillates (petroleum), acid-treated heavy naphthenic 

64742–19–4 ............. Distillates (petroleum), acid-treated light naphthenic 

64742–20–7 ............. Distillates (petroleum), acid-treated heavy paraffinic 

64742–21–8 ............. Distillates (petroleum), acid-treated light paraffinic 

64742–22–9 ............. Naphtha (petroleum), chemically neutralized heavy 

64742–23–0 ............. Naphtha (petroleum), chemically neutralized light 

64742–24–1 ............. Sludges (petroleum), acid 

64742–25–2 ............. Lubricating oils (petroleum), acid-treated spent 

64742–26–3 ............. Hydrocarbon waxes (petroleum), acid-treated 

64742–27–4 ............. Distillates (petroleum), chemically neutralized heavy paraffinic 

64742–28–5 ............. Distillates (petroleum), chemically neutralized light paraffinic 

64742–29–6 ............. Gas oils (petroleum), chemically neutralized 

64742–30–9 ............. Distillates (petroleum), chemically neutralized middle 

64742–31–0 ............. Distillates (petroleum), chemically neutralized light 

64742–32–1 ............. Lubricating oils (petroleum), chemically neutralized spent 

64742–33–2 ............. Hydrocarbon waxes (petroleum), chemically neutralized 

64742–34–3 ............. Distillates (petroleum), chemically neutralized heavy naphthenic 

64742–35–4 ............. Distillates (petroleum), chemically neutralized light naphthenic 

64742–36–5 ............. Distillates (petroleum), clay-treated heavy paraffinic 

64742–37–6 ............. Distillates (petroleum), clay-treated light paraffinic 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 893

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

64742–38–7 ............. Distillates (petroleum), clay-treated middle 

64742–39–8 ............. Neutralizing agents (petroleum), spent sodium carbonate 

64742–40–1 ............. Neutralizing agents (petroleum), spent sodium hydroxide 

64742–41–2 ............. Residual oils (petroleum), clay-treated 

64742–42–3 ............. Hydrocarbon waxes (petroleum), clay-treated microcryst. 

64742–43–4 ............. Paraffin waxes (petroleum), clay-treated 

64742–44–5 ............. Distillates (petroleum), clay-treated heavy naphthenic 

64742–45–6 ............. Distillates (petroleum), clay-treated light naphthenic 

64742–46–7 ............. Distillates (petroleum), hydrotreated middle 

64742–47–8 ............. Distillates (petroleum), hydrotreated light 

64742–48–9 ............. Naphtha (petroleum), hydrotreated heavy 

64742–49–0 ............. Naphtha (petroleum), hydrotreated light 

64742–50–3 ............. Lubricating oils (petroleum), clay-treated spent 

64742–51–4 ............. Paraffin waxes (petroleum), hydrotreated 

64742–52–5 ............. Distillates (petroleum), hydrotreated heavy naphthenic 

64742–53–6 ............. Distillates (petroleum), hydrotreated light naphthenic 

64742–54–7 ............. Distillates (petroleum), hydrotreated heavy paraffinic 

64742–55–8 ............. Distillates (petroleum), hydrotreated light paraffinic 

64742–56–9 ............. Distillates (petroleum), solvent-dewaxed light paraffinic 

64742–57–0 ............. Residual oils (petroleum), hydrotreated 

64742–58–1 ............. Lubricating oils (petroleum), hydrotreated spent 

64742–59–2 ............. Gas oils (petroleum), hydrotreated vacuum 

64742–60–5 ............. Hydrocarbon waxes (petroleum), hydrotreated microcryst. 

64742–61–6 ............. Slack wax (petroleum) 

64742–62–7 ............. Residual oils (petroleum), solvent-dewaxed 

64742–63–8 ............. Distillates (petroleum), solvent-dewaxed heavy naphthenic 

64742–64–9 ............. Distillates (petroleum), solvent-dewaxed light naphthenic 

64742–65–0 ............. Distillates (petroleum), solvent-dewaxed heavy paraffinic 

64742–67–2 ............. Foots oil (petroleum) 

64742–68–3 ............. Naphthenic oils (petroleum), catalytic dewaxed heavy 

64742–69–4 ............. Naphthenic oils (petroleum), catalytic dewaxed light 

64742–70–7 ............. Paraffin oils (petroleum), catalytic dewaxed heavy 

64742–71–8 ............. Paraffin oils (petroleum), catalytic dewaxed light 

64742–72–9 ............. Distillates (petroleum), catalytic dewaxed middle 

64742–73–0 ............. Naphtha (petroleum), hydrodesulfurized light 

64742–75–2 ............. Naphthenic oils (petroleum), complex dewaxed heavy 

64742–76–3 ............. Naphthenic oils (petroleum), complex dewaxed light 

64742–78–5 ............. Residues (petroleum), hydrodesulfurized atmospheric tower 

64742–79–6 ............. Gas oils (petroleum), hydrodesulfurized 

64742–80–9 ............. Distillates (petroleum), hydrodesulfurized middle 

64742–81–0 ............. Kerosine (petroleum), hydrodesulfurized 

64742–82–1 ............. Naphtha (petroleum), hydrodesulfurized heavy 

64742–83–2 ............. Naphtha (petroleum), light steam-cracked 

64742–85–4 ............. Residues (petroleum), hydrodesulfurized vacuum 

64742–86–5 ............. Gas oils (petroleum), hydrodesulfurized heavy vacuum 

64742–87–6 ............. Gas oils (petroleum), hydrodesulfurized light vacuum 

64742–88–7 ............. Solvent naphtha (petroleum), medium aliph. 

64742–89–8 ............. Solvent naphtha (petroleum), light aliph. 

64742–90–1 ............. Residues (petroleum), steam-cracked 

64742–91–2 ............. Distillates (petroleum), steam-cracked 

64742–92–3 ............. Petroleum resins, oxidized 

64742–93–4 ............. Asphalt, oxidized 

64742–94–5 ............. Solvent naphtha (petroleum), heavy arom. 

64742–95–6 ............. Solvent naphtha (petroleum), light arom. 

64742–96–7 ............. Solvent naphtha (petroleum), heavy aliph. 

64742–97–8 ............. Distillates (petroleum), oxidized heavy 

64742–98–9 ............. Distillates (petroleum), oxidized light 

64742–99–0 ............. Residual oils (petroleum), oxidized 

64743–00–6 ............. Hydrocarbon waxes (petroleum), oxidized 

64743–01–7 ............. Petrolatum (petroleum), oxidized 

64743–02–8 ............. Alkenes, C>10 .alpha.-

64743–03–9 ............. Phenols (petroleum) 

64743–04–0 ............. Coke (petroleum), recovery 

64743–05–1 ............. Coke (petroleum), calcined 

64743–06–2 ............. Extracts (petroleum), gas oil solvent 

64743–07–3 ............. Sludges (petroleum), chemically neutralized 

64754–89–8 ............. Naphthenic acids (petroleum), crude 

64771–71–7 ............. Paraffins (petroleum), normal C>10

64771–72–8 ............. Paraffins (petroleum), normal C5-20

67674–12–8 ............. Residual oils (petroleum), oxidized, compounds with triethanolamine 

67674–13–9 ............. Petrolatum (petroleum), oxidized, partially deacidified 

894 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

67674–15–1 ............. Petrolatum (petroleum), oxidized, Me ester 

67674–16–2 ............. Hydrocarbon waxes (petroleum), oxidized, partially deacidified 

67674–17–3 ............. Distillates (petroleum), oxidized light, compounds with triethanolamine 

67674–18–4 ............. Distillates (petroleum), oxidized light, Bu esters 

67891–79–6 ............. Distillates (petroleum), heavy arom. 

67891–80–9 ............. Distillates (petroleum), light arom. 

67891–82–1 ............. Hydrocarbon waxes (petroleum), oxidized, compounds with ethanolamine 

67891–83–2 ............. Hydrocarbon waxes (petroleum), oxidized, compounds with isopropanolamine 

67891–85–4 ............. Hydrocarbon waxes (petroleum), oxidized, compounds with triisopropanolamine 

68131–05–5 ............. Hydrocarbon oils, process blends 

68131–49–7 ............. Aromatic hydrocarbons, C6-10, acid-treated, neutralized 

68131–75–9 ............. Gases (petroleum), C3-4

68153–22–0 ............. Paraffin waxes and Hydrocarbon waxes, oxidized 

68187–57–5 ............. Pitch, coal tar-petroleum 

68187–58–6 ............. Pitch, petroleum, arom. 

68187–60–0 ............. Hydrocarbons, C4, ethane-propane-cracked 

68307–98–2 ............. Tail gas (petroleum), catalytic cracked distillate and catalytic cracked naphtha fractionation absorber 

68307–99–3 ............. Tail gas (petroleum), catalytic polymn. naphtha fractionation stabilizer 

68308–00–9 ............. Tail gas (petroleum), catalytic reformed naphtha fractionation stabilizer, hydrogen sulfide-free 

68308–01–0 ............. Tail gas (petroleum), cracked distillate hydrotreater stripper 

68308–02–1 ............. Tail gas (petroleum), distn., hydrogen sulfide-free 

68308–03–2 ............. Tail gas (petroleum), gas oil catalytic cracking absorber 

68308–04–3 ............. Tail gas (petroleum), gas recovery plant 

68308–05–4 ............. Tail gas (petroleum), gas recovery plant deethanizer 

68308–06–5 ............. Tail gas (petroleum), hydrodesulfurized distillate and hydrodesulfurized naphtha fractionator, acid-free 

68308–07–6 ............. Tail gas (petroleum), hydrodesulfurized vacuum gas oil stripper, hydrogen sulfide-free 

68308–08–7 ............. Tail gas (petroleum), isomerized naphtha fractionation stabilizer 

68308–09–8 ............. Tail gas (petroleum), light straight-run naphtha stabilizer, hydrogen sulfide-free 

68308–10–1 ............. Tail gas (petroleum), straight-run distillate hydrodesulfurizer, hydrogen sulfide-free 

68308–11–2 ............. Tail gas (petroleum), propane-propylene alkylation feed prep deethanizer 

68308–12–3 ............. Tail gas (petroleum), vacuum gas oil hydrodesulfurizer, hydrogen sulfide-free 

68308–27–0 ............. Fuel gases, refinery 

68333–22–2 ............. Residues (petroleum), atmospheric 

68333–23–3 ............. Naphtha (petroleum), heavy coker 

68333–24–4 ............. Hydrocarbon waxes (petroleum), oxidized, compds. with triethanolamine 

68333–25–5 ............. Distillates (petroleum), hydrodesulfurized light catalytic cracked 

68333–26–6 ............. Clarified oils (petroleum), hydrodesulfurized catalytic cracked 

68333–27–7 ............. Distillates (petroleum), hydrodesulfurized intermediate catalytic cracked 

68333–28–8 ............. Distillates (petroleum), hydrodesulfurized heavy catalytic cracked 

68333–29–9 ............. Residues (petroleum), light naphtha solvent extracts 

68333–30–2 ............. Distillates (petroleum), oxidized heavy thermal cracked 

68333–81–3 ............. Alkanes, C4-12

68333–88–0 ............. Aromatic hydrocarbons, C9-17

68334–30–5 ............. Fuels, diesel 

68409–99–4 ............. Gases (petroleum), catalytic cracked overheads 

68410–00–4 ............. Distillates (petroleum), crude oil 

68410–05–9 ............. Distillates (petroleum), straight-run light 

68410–12–8 ............. Distillates (petroleum), steam-cracked, C5-10 fraction, high-temp. stripping products with light steamcracked petroleum naphtha C5 fraction polymers 

68410–71–9 ............. Raffinates (petroleum), catalytic reformer ethylene glycol-water countercurrent exts. 

68410–96–8 ............. Distillates (petroleum), hydrotreated middle, intermediate boiling 

68410–97–9 ............. Distillates (petroleum), light distillate hydrotreating process, low-boiling 

68410–98–0 ............. Distillates (petroleum), hydrotreated heavy naphtha, deisohexanizer overheads 

68411–00–7 ............. Alkenes, C>8

68425–29–6 ............. Distillates (petroleum), naphtha-raffinate pyrolyzate-derived, gasoline-blending 

68425–33–2 ............. Petrolatum (petroleum), oxidized, barium salt 

68425–34–3 ............. Petrolatum (petroleum), oxidized, calcium salt 

68425–35–4 ............. Raffinates (petroleum), reformer, Lurgi unit-sepd. 

68425–39–8 ............. Alkenes, C>10 .alpha.-, oxidized 

68441–09–8 ............. Hydrocarbon waxes (petroleum), clay-treated microcryst., contg. polyethylene, oxidized 

68459–78–9 ............. Alkenes, C18-24 .alpha.-, dimers 

68475–57–0 ............. Alkanes, C1-2

68475–58–1 ............. Alkanes, C2-3

68475–59–2 ............. Alkanes, C3-4

68475–60–5 ............. Alkanes, C4-5

68475–61–6 ............. Alkenes, C5, naphtha-raffinate pyrolyzate-derived 

68475–70–7 ............. Aromatic hydrocarbons, C6-8, naphtha-raffinate pyrolyzate-derived 

68475–79–6 ............. Distillates (petroleum), catalytic reformed depentanizer 

68475–80–9 ............. Distillates (petroleum), light steam-cracked naphtha 

68476–26–6 ............. Fuel gases 

68476–28–8 ............. Fuel gases, C6-8 catalytic reformer 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 895

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

68476–29–9 ............. Fuel gases, crude oil distillates 

68476–30–2 ............. Fuel oil, no. 2

68476–31–3 ............. Fuel oil, no. 4

68476–32–4 ............. Fuel oil, residues-straight-run gas oils, high-sulfur 

68476–33–5 ............. Fuel oil, residual 

68476–34–6 ............. Fuels, diesel, no. 2

68476–39–1 ............. Hydrocarbons, aliph.-arom.-C4-5-olefinic 

68476–40–4 ............. Hydrocarbons, C3-4

68476–42–6 ............. Hydrocarbons, C4-5

68476–43–7 ............. Hydrocarbons, C4-6, C5-rich 

68476–44–8 ............. Hydrocarbons, C>3

68476–45–9 ............. Hydrocarbons, C5-10 arom. conc., ethylene-manuf.-by-product 

68476–46–0 ............. Hydrocarbons, C3-11, catalytic cracker distillates 

68476–47–1 ............. Hydrocarbons, C2-6, C6-8 catalytic reformer 

68476–49–3 ............. Hydrocarbons, C2-4, C3-rich 

68476–50–6 ............. Hydrocarbons, C≥5, C5-6-rich 

68476–52–8 ............. Hydrocarbons, C4, ethylene-manuf.-by-product 

68476–53–9 ............. Hydrocarbons, C≥20, petroleum wastes 

68476–54–0 ............. Hydrocarbons, C3-5, polymn. unit feed 

68476–55–1 ............. Hydrocarbons, C5-rich 

68476–56–2 ............. Hydrocarbons, cyclic C5 and C6

68476–77–7 ............. Lubricating oils, refined used 

68476–81–3 ............. Paraffin waxes and Hydrocarbon waxes, oxidized, calcium salts 

68476–84–6 ............. Petroleum products, gases, inorg. 

68476–85–7 ............. Petroleum gases, liquefied 

68476–86–8 ............. Petroleum gases, liquefied, sweetened 

68477–25–8 ............. Waste gases, vent gas, C1-6

68477–26–9 ............. Wastes, petroleum 

68477–29–2 ............. Distillates (petroleum), catalytic reformer fractionator residue, high-boiling 

68477–30–5 ............. Distillates (petroleum), catalytic reformer fractionator residue, intermediate-boiling 

68477–31–6 ............. Distillates (petroleum), catalytic reformer fractionator residue, low-boiling 

68477–33–8 ............. Gases (petroleum), C3-4, isobutane-rich 

68477–34–9 ............. Distillates (petroleum), C3-5, 2-methyl-2-butene-rich 

68477–35–0 ............. Distillates (petroleum), C3-6, piperylene-rich 

68477–36–1 ............. Distillates (petroleum), cracked steam-cracked, C5-18 fraction 

68477–38–3 ............. Distillates (petroleum), cracked steam-cracked petroleum distillates 

68477–39–4 ............. Distillates (petroleum), cracked stripped steam-cracked petroleum distillates, C8-10 fraction 

68477–40–7 ............. Distillates (petroleum), cracked stripped steam-cracked petroleum distillates, C10-12 fraction 

68477–41–8 ............. Gases (petroleum), extractive, C3-5, butadiene-butene-rich 

68477–42–9 ............. Gases (petroleum), extractive, C3-5, butene-isobutylene-rich 

68477–44–1 ............. Distillates (petroleum), heavy naphthenic, mixed with steam-cracked petroleum distillates C5-12 fraction 

68477–47–4 ............. Distillates (petroleum), mixed heavy olefin vacuum, heart-cut 

68477–48–5 ............. Distillates (petroleum), mixed heavy olefin vacuum, low-boiling 

68477–53–2 ............. Distillates (petroleum), steam-cracked, C5-12 fraction 

68477–54–3 ............. Distillates (petroleum), steam-cracked, C8-12 fraction 

68477–55–4 ............. Distillates (petroleum), steam-cracked, C5-10 fraction, mixed with light steam-cracked petroleum naphtha 

C5 fraction 

68477–58–7 ............. Distillates (petroleum), steam-cracked petroleum distillates, C5-18 fraction 

68477–59–8 ............. Distillates (petroleum), steam-cracked petroleum distillates cyclopentadiene conc. 

68477–60–1 ............. Extracts (petroleum), cold-acid 

68477–61–2 ............. Extracts (petroleum), cold-acid, C4-6

68477–62–3 ............. Extracts (petroleum), cold-acid, C3-5, butene-rich 

68477–63–4 ............. Extracts (petroleum), reformer recycle 

68477–64–5 ............. Gases (petroleum), acetylene manuf. off 

68477–65–6 ............. Gases (petroleum), amine system feed 

68477–66–7 ............. Gases (petroleum), benzene unit hydrodesulfurizer off 

68477–67–8 ............. Gases (petroleum), benzene unit recycle, hydrogen-rich 

68477–68–9 ............. Gases (petroleum), blend oil, hydrogen-nitrogen-rich 

68477–69–0 ............. Gases (petroleum), butane splitter overheads 

68477–70–3 ............. Gases (petroleum), C2-3

68477–71–4 ............. Gases (petroleum), catalytic-cracked gas oil depropanizer bottoms, C4-rich acid-free 

68477–72–5 ............. Gases (petroleum), catalytic-cracked naphtha debutanizer bottoms, C3-5-rich 

68477–73–6 ............. Gases (petroleum), catalytic cracked naphtha depropanizer overhead, C3-rich acid-free 

68477–74–7 ............. Gases (petroleum), catalytic cracker 

68477–75–8 ............. Gases (petroleum), catalytic cracker, C1-5-rich 

68477–76–9 ............. Gases (petroleum), catalytic polymd. naphtha stabilizer overhead, C2-4-rich 

68477–77–0 ............. Gases (petroleum), catalytic reformed naphtha stripper overheads 

68477–79–2 ............. Gases (petroleum), catalytic reformer, C1-4-rich 

68477–80–5 ............. Gases (petroleum), C6-8 catalytic reformer recycle 

68477–81–6 ............. Gases (petroleum), C6-8 catalytic reformer 

68477–82–7 ............. Gases (petroleum), C6-8 catalytic reformer recycle, hydrogen-rich 

896 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

68477–83–8 ............. Gases (petroleum), C3-5 olefinic-paraffinic alkylation feed 

68477–84–9 ............. Gases (petroleum), C2-return stream 

68477–85–0 ............. Gases (petroleum), C4-rich 

68477–86–1 ............. Gases (petroleum), deethanizer overheads 

68477–87–2 ............. Gases (petroleum), deisobutanizer tower overheads 

68477–88–3 ............. Gases (petroleum), deethanizer overheads, C3-rich 

68477–89–4 ............. Distillates (petroleum), depentanizer overheads 

68477–90–7 ............. Gases (petroleum), depropanizer dry, propene-rich 

68477–91–8 ............. Gases (petroleum), depropanizer overheads 

68477–92–9 ............. Gases (petroleum), dry sour, gas-concn.-unit-off 

68477–93–0 ............. Gases (petroleum), gas concn. reabsorber distn. 

68477–94–1 ............. Gases (petroleum), gas recovery plant depropanizer overheads 

68477–95–2 ............. Gases (petroleum), Girbatol unit feed 

68477–96–3 ............. Gases (petroleum), hydrogen absorber off 

68477–97–4 ............. Gases (petroleum), hydrogen-rich 

68478–00–2 ............. Gases (petroleum), recycle, hydrogen-rich 

68478–01–3 ............. Gases (petroleum), reformer make-up, hydrogen-rich 

68478–02–4 ............. Gases (petroleum), reforming hydrotreater 

68478–03–5 ............. Gases (petroleum), reforming hydrotreater, hydrogen-methane-rich 

68478–04–6 ............. Gases (petroleum), reforming hydrotreater make-up, hydrogen-rich 

68478–05–7 ............. Gases (petroleum), thermal cracking distn. 

68478–08–0 ............. Naphtha (petroleum), light steam-cracked, C5-fraction, oligomer conc. 

68478–10–4 ............. Naphtha (petroleum), light steam-cracked, debenzenized, C8-16-cycloalkadiene conc. 

68478–12–6 ............. Residues (petroleum), butane splitter bottoms 

68478–13–7 ............. Residues (petroleum), catalytic reformer fractionator residue distn. 

68478–15–9 ............. Residues (petroleum), C6-8 catalytic reformer 

68478–16–0 ............. Residual oils (petroleum), deisobutanizer tower 

68478–17–1 ............. Residues (petroleum), heavy coker gas oil and vacuum gas oil 

68478–18–2 ............. Residues (petroleum), heavy olefin vacuum 

68478–19–3 ............. Residual oils (petroleum), propene purifn. splitter 

68478–20–6 ............. Residues (petroleum), steam-cracked petroleum distillates cyclopentadiene conc., C4-cyclopentadienefree 

68478–22–8 ............. Tail gas (petroleum), catalytic cracked naphtha stabilization absorber 

68478–24–0 ............. Tail gas (petroleum), catalytic cracker, catalytic reformer and hydrodesulfurizer combined fractionater 

68478–25–1 ............. Tail gas (petroleum), catalytic cracker refractionation absorber 

68478–26–2 ............. Tail gas (petroleum), catalytic reformed naphtha fractionation stabilizer 

68478–27–3 ............. Tail gas (petroleum), catalytic reformed naphtha separator 

68478–28–4 ............. Tail gas (petroleum), catalytic reformed naphtha stabilizer 

68478–29–5 ............. Tail gas (petroleum), cracked distillate hydrotreater separator 

68478–30–8 ............. Tail gas (petroleum), hydrodesulfurized straight-run naphtha separator 

68478–32–0 ............. Tail gas (petroleum), saturate gas plant mixed stream, C4-rich 

68478–33–1 ............. Tail gas (petroleum), saturate gas recovery plant, C1-2-rich 

68478–34–2 ............. Tail gas (petroleum), vacuum residues thermal cracker 

68512–61–8 ............. Residues (petroleum), heavy coker and light vacuum 

68512–62–9 ............. Residues (petroleum), light vacuum 

68512–78–7 ............. Solvent naphtha (petroleum), light arom., hydrotreated 

68512–91–4 ............. Hydrocarbons, C3-4-rich, petroleum distillates 

68513–02–0 ............. Naphtha (petroleum), full-range coker 

68513–11–1 ............. Fuel gases, hydrotreater fractionation, scrubbed 

68513–12–2 ............. Fuel gases, saturate gas unit fractionater-absorber overheads 

68513–13–3 ............. Fuel gases, thermal cracked catalytic cracking residue 

68513–14–4 ............. Gases (petroleum), catalytic reformed straight-run naphtha stabilizer overheads 

68513–15–5 ............. Gases (petroleum), full-range straight-run naphtha dehexanizer off 

68513–16–6 ............. Gases (petroleum), hydrocracking depropanizer off, hydrocarbon-rich 

68513–17–7 ............. Gases (petroleum), light straight-run naphtha stabilizer off 

68513–18–8 ............. Gases (petroleum), reformer effluent high-pressure flash drum off 

68513–19–9 ............. Gases (petroleum), reformer effluent low-pressure flash drum off 

68513–62–2 ............. Disulfides, C5-12-alkyl 

68513–63–3 ............. Distillates (petroleum), catalytic reformed straight-run naphtha overheads 

68513–65–5 ............. Butane, branched and linear 

68513–66–6 ............. Residues (petroleum), alkylation splitter, C4-rich 

68513–67–7 ............. Residues (petroleum), cyclooctadiene bottoms 

68513–68–8 ............. Residues (petroleum), deethanizer tower 

68513–69–9 ............. Residues (petroleum), steam-cracked light 

68513–74–6 ............. Waste gases, ethylene oxide absorber-reactor 

68514–15–8 ............. Gasoline, vapor-recovery 

68514–29–4 ............. Hydrocarbons, amylene feed debutanizer overheads nonextractable raffinates 

68514–31–8 ............. Hydrocarbons, C1-4

68514–32–9 ............. Hydrocarbons, C10 and C12, olefin-rich 

68514–33–0 ............. Hydrocarbons, C12 and C14, olefin-rich 

68514–34–1 ............. Hydrocarbons, C9-14, ethylene-manuf.-by-product 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 897

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

68514–35–2 ............. Hydrocarbons, C14-30, olefin-rich 

68514–38–5 ............. Hydrocarbons, C4-10-unsatd. 

68514–36–3 ............. Hydrocarbons, C1-4, sweetened 

68514–37–4 ............. Hydrocarbons, C4-5-unsatd. 

68514–79–4 ............. Petroleum products, hydrofiner-powerformer reformates 

68515–25–3 ............. Benzene, C1-9-alkyl derivs. 

68515–26–4 ............. Benzene, di-C12-14-alkyl derivs. 

68515–27–5 ............. Benzene, di-C10-14-alkyl derivs., fractionation overheads, heavy ends 

68515–28–6 ............. Benzene, di-C10-14-alkyl derivs., fractionation overheads, light ends 

68515–29–7 ............. Benzene, di-C10-14-alkyl derivs., fractionation overheads, middle cut 

68515–30–0 ............. Benzene, mono-C20-48-alkyl derivs. 

68515–32–2 ............. Benzene, mono-C12-14-alkyl derivs., fractionation bottoms 

68515–33–3 ............. Benzene, mono-C10-12-alkyl derivs., fractionation bottoms, heavy ends 

68515–34–4 ............. Benzene, mono-C12-14-alkyl derivs., fractionation bottoms, heavy ends 

68515–35–5 ............. Benzene, mono-C10-12-alkyl derivs., fractionation bottoms, light ends 

68515–36–6 ............. Benzene, mono-C12-14-alkyl derivs., fractionation bottoms, light ends 

68516–20–1 ............. Naphtha (petroleum), steam-cracked middle arom. 

68526–52–3 ............. Alkenes, C6

68526–53–4 ............. Alkenes, C6-8, C7-rich 

68526–54–5 ............. Alkenes, C7-9, C8-rich 

68526–55–6 ............. Alkenes, C8-10, C9-rich 

68526–56–7 ............. Alkenes, C9-11, C10-rich 

68526–57–8 ............. Alkenes, C10-12, C11-rich 

68526–58–9 ............. Alkenes, C11-13, C12-rich 

68526–77–2 ............. Aromatic hydrocarbons, ethane cracking scrubber effluent and flare drum 

68526–99–8 ............. Alkenes, C6-9 .alpha.-

68527–00–4 ............. Alkenes, C8-9 .alpha.-

68527–11–7 ............. Alkenes, C5

68527–13–9 ............. Gases (petroleum), acid, ethanolamine scrubber 

68527–14–0 ............. Gases (petroleum), methane-rich off 

68527–15–1 ............. Gases (petroleum), oil refinery gas distn. off 

68527–16–2 ............. Hydrocarbons, C1-3

68527–18–4 ............. Gas oils (petroleum), steam-cracked 

68527–19–5 ............. Hydrocarbons, C1-4, debutanizer fraction 

68527–21–9 ............. Naphtha (petroleum), clay-treated full-range straight-run 

68527–22–0 ............. Naphtha (petroleum), clay-treated light straight-run 

68527–23–1 ............. Naphtha (petroleum), light steam-cracked arom. 

68527–26–4 ............. Naphtha (petroleum), light steam-cracked, debenzenized 

68527–27–5 ............. Naphtha (petroleum), full-range alkylate, butane-contg. 

68553–00–4 ............. Fuel oil, no. 6

68553–14–0 ............. Hydrocarbons, C8-11

68602–79–9 ............. Distillates (petroleum), benzene unit hydrotreater dipentanizer overheads 

68602–81–3 ............. Distillates, hydrocarbon resin prodn. higher boiling 

68602–82–4 ............. Gases (petroleum), benzene unit hydrotreater depentenizer overheads 

68602–83–5 ............. Gases (petroleum), C1-5, wet 

68602–84–6 ............. Gases (petroleum), secondary absorber off, fluidized catalytic cracker overheads fractionater 

68602–96–0 ............. Distillates (petroleum), oxidized light, strong acid components, compds. with diethanolamine 

68602–97–1 ............. Distillates (petroleum), oxidized light, strong acid components, sodium salts 

68602–98–2 ............. Distillates (petroleum), oxidized light, strong acid components 

68602–99–3 ............. Distillates (petroleum), oxidized light, strong acid-free 

68603–00–9 ............. Distillates (petroleum), thermal cracked naphtha and gas oil 

68603–01–0 ............. Distillates (petroleum), thermal cracked naphtha and gas oil, C5-dimer-contg. 

68603–02–1 ............. Distillates (petroleum), thermal cracked naphtha and gas oil, dimerized 

68603–03–2 ............. Distillates (petroleum), thermal cracked naphtha and gas oil, extractive 

68603–08–7 ............. Naphtha (petroleum), arom.-contg. 

68603–09–8 ............. Hydrocarbon waxes (petroleum), oxidized, calcium salts 

68603–10–1 ............. Hydrocarbon waxes (petroleum), oxidized, Me esters, barium salts 

68603–11–2 ............. Hydrocarbon waxes (petroleum), oxidized, Me esters, calcium salts 

68603–12–3 ............. Hydrocarbon waxes (petroleum), oxidized, Me esters, sodium salts 

68603–13–4 ............. Petrolatum (petroleum), oxidized, ester with sorbitol 

68603–14–5 ............. Residual oils (petroleum), oxidized, calcium salts 

68603–31–6 ............. Alkenes, C10, tert-amylene concentrator by-product 

68603–32–7 ............. Alkenes, C15-20 .alpha.-, isomerized 

68606–09–7 ............. Fuel gases, expander off 

68606–10–0 ............. Gasoline, pyrolysis, debutanizer bottoms 

68606–11–1 ............. Gasoline, straight–run, topping-plant 

68606–24–6 ............. Hydrocarbons, C4, butene concentrator by-product 

68606–25–7 ............. Hydrocarbons, C2-4

68606–26–8 ............. Hydrocarbons, C3

68606–27–9 ............. Gases (petroleum), alkylation feed 

68606–28–0 ............. Hydrocarbons, C5 and C10-aliph. and C6-8-arom. 

898 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

68606–31–5 ............. Hydrocarbons, C3-5, butadiene purifn. by-product 

68606–34–8 ............. Gases (petroleum), depropanizer bottoms fractionation off 

68606–36–0 ............. Hydrocarbons, C5-unsatd. rich, isoprene purifn. by-product 

68607–11–4 ............. Petroleum products, refinery gases 

68607–30–7 ............. Residues (petroleum), topping plant, low-sulfur 

68608–56–0 ............. Waste gases, from carbon black manuf. 

68647-60–9 ............. Hydrocarbons, C>4

68647–61–0 ............. Hydrocarbons, C4-5, tert-amylene concentrator by-product 

68647–62–1 ............. Hydrocarbons, C4-5, butene concentrator by-product, sour 

68650–36–2 ............. Aromatic hydrocarbons, C8, o-xylene-lean 

68650–37–3 ............. Paraffin waxes (petroleum), oxidized, sodium salts 

68782–97–8 ............. Distillates (petroleum), hydrofined lubricating-oil 

68782–98–9 ............. Extracts (petroleum), clarified oil solvent, condensed-ring-arom.-contg. 

68782–99–0 ............. Extracts (petroleum), heavy clarified oil solvent, condensed-ring-arom.-contg. 

68783–00–6 ............. Extracts (petroleum), heavy naphthenic distillate solvent, arom. conc. 

68783–01–7 ............. Extracts (petroleum), heavy naphthenic distillate solvent, paraffinic conc. 

68783–02–8 ............. Extracts (petroleum), intermediate clarified oil solvent, condensed-ring-arom.-contg. 

68783–04–0 ............. Extracts (petroleum), solvent-refined heavy paraffinic distillate solvent 

68783–05–1 ............. Gases (petroleum), ammonia-hydrogen sulfide, water-satd. 

68783–06–2 ............. Gases (petroleum), hydrocracking low-pressure separator 

68783–07–3 ............. Gases (petroleum), refinery blend 

68783–08–4 ............. Gas oils (petroleum), heavy atmospheric 

68783–09–5 ............. Naphtha (petroleum), catalytic cracked light distd. 

68783–12–0 ............. Naphtha (petroleum), unsweetened 

68783–13–1 ............. Residues (petroleum), coker scrubber, condensed-ring-arom.-contg. 

68783–15–3 ............. Alkenes, C6-7 .alpha.-

68783–61–9 ............. Fuel gases, refinery, sweetened 

68783–62–0 ............. Fuel gases, refinery, unsweetened 

68783–64–2 ............. Gases (petroleum), catalytic cracking 

68783–65–3 ............. Gases (petroleum), C2-4, sweetened 

68783–66–4 ............. Naphtha (petroleum), light, sweetened 

68814–47–1 ............. Waste gases, refinery vent 

68814–67–5 ............. Gases (petroleum), refinery 

68814–89–1 ............. Extracts (petroleum), heavy paraffinic distillates, solvent-deasphalted 

68814–87–9 ............. Distillates (petroleum), full-range straight-run middle 

68814–90–4 ............. Gases (petroleum), platformer products separator off 

68814–91–5 ............. Alkenes, C5-9 .alpha.-

68855–57–2 ............. Alkenes, C6-12 .alpha.-

68855–58–3 ............. Alkenes, C10-16 .alpha.-

68855–59–4 ............. Alkenes, C14-18 .alpha.-

68855–60–7 ............. Alkenes, C14-20 .alpha.-

68911–58–0 ............. Gases (petroleum), hydrotreated sour kerosine depentanizer stabilizer off 

68911–59–1 ............. Gases (petroleum), hydrotreated sour kerosine flash drum 

68915–96–8 ............. Distillates (petroleum), heavy straight-run 

68915–97–9 ............. Gas oils (petroleum), straight-run, high-boiling 

68918–69–4 ............. Petrolatum (petroleum), oxidized, zinc salt 

68918–73–0 ............. Residues (petroleum), clay-treating filter wash 

68918–93–4 ............. Paraffin waxes and Hydrocarbon waxes, oxidized, alkali metal salts 

68918–98–9 ............. Fuel gases, refinery, hydrogen sulfide-free 

68918–99–0 ............. Gases (petroleum), crude oil fractionation off 

68919–00–6 ............. Gases (petroleum), dehexanizer off 

68919–01–7 ............. Gases (petroleum), distillate unifiner desulfurization stripper off 

68919–02–8 ............. Gases (petroleum), fluidized catalytic cracker fractionation off 

68919–03–9 ............. Gases (petroleum), fluidized catalytic cracker scrubbing secondary absorber off 

68919–04–0 ............. Gases (petroleum), heavy distillate hydrotreater desulfurization stripper off 

68919–05–1 ............. Gases (petroleum), light straight run gasoline fractionation stabilizer off 

68919–06–2 ............. Gases (petroleum), naphtha unifiner desulfurization stripper off 

68919–07–3 ............. Gases (petroleum), platformer stabilizer off, light ends fractionation 

68919–08–4 ............. Gases (petroleum), preflash tower off, crude distn. 

68919–09–5 ............. Gases (petroleum), straight-run naphtha catalytic reforming off 

68919–10–8 ............. Gases (petroleum), straight-run stabilizer off 

68919–11–9 ............. Gases (petroleum), tar stripper off 

68919–12–0 ............. Gases (petroleum), unifiner stripper off 

68919–15–3 ............. Hydrocarbons, C6-12, benzene-recovery 

68919–17–5 ............. Hydrocarbons, C12-20, catalytic alkylation by-products 

68919–19–7 ............. Gases (petroleum), fluidized catalytic cracker splitter residues 

68919–20–0 ............. Gases (petroleum), fluidized catalytic cracker splitter overheads 

68919–37–9 ............. Naphtha (petroleum), full-range reformed 

68920–06–9 ............. Hydrocarbons, C7-9

68920–07–0 ............. Hydrocarbons, C<10-linear 

68920–64–9 ............. Disulfides, di-C1-2-alkyl 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 899

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES TERMED ‘‘PETROLEUM PROCESS STREAMS’’ FOR

PURPOSES OF INVENTORY UPDATE REPORTING—Continued

CAS No. Product 

68921–07–3 ............. Distillates (petroleum), hydrotreated light catalytic cracked 

68921–09–5 ............. Distillates (petroleum), naphtha unifiner stripper 

68921–08–4 ............. Distillates (petroleum), light straight-run gasoline fractionation stabilizer overheads 

68921–67–5 ............. Hydrocarbons, ethylene-manuf.-by-product distn. residues 

68952–76–1 ............. Gases (petroleum), catalytic cracked naphtha debutanizer 

68952–77–2 ............. Tail gas (petroleum), catalytic cracked distillate and naphtha stabilizer 

68952–78–3 ............. Tail gas (petroleum), catalytic hydrodesulfurized distillate fractionation stabilizer, hydrogen sulfide-free 

68952–79–4 ............. Tail gas (petroleum), catalytic hydrodesulfurized naphtha separator 

68952–80–7 ............. Tail gas (petroleum), straight-run naphtha hydrodesulfurizer 

68952–81–8 ............. Tail gas (petroleum), thermal-cracked distillate, gas oil and naphtha absorber 

68952–82–9 ............. Tail gas (petroleum), thermal cracked hydrocarbon fractionation stabilizer, petroleum coking 

68953–80–0 ............. Benzene, mixed with toluene, dealkylation product 

68955–27–1 ............. Distillates (petroleum), petroleum residues vacuum 

68955–28–2 ............. Gases (petroleum), light steam-cracked, butadiene conc. 

68955–31–7 ............. Gases (petroleum), butadiene process, inorg. 

68955–32–8 ............. Natural gas, substitute, steam-reformed desulfurized naphtha 

68955–33–9 ............. Gases (petroleum), sponge absorber off, fluidized catalytic cracker and gas oil desulfurizer overhead 

fractionation 

68955–34–0 ............. Gases (petroleum), straight-run naphtha catalytic reformer stabilizer overhead 

68955–35–1 ............. Naphtha (petroleum), catalytic reformed 

68955–36–2 ............. Residues (petroleum), steam-cracked, resinous 

68955–76–0 ............. Aromatic hydrocarbons, C9-16, biphenyl deriv.-rich 

68955–96–4 ............. Disulfides, dialkyl and di-Ph, naphtha sweetening 

68956–47–8 ............. Fuel oil, isoprene reject absorption 

68956–48–9 ............. Fuel oil, residual, wastewater skimmings 

68956–52–5 ............. Hydrocarbons, C4-8

68956–54–7 ............. Hydrocarbons, C4-unsatd. 

68956–55–8 ............. Hydrocarbons, C5-unsatd. 

68956–70–7 ............. Petroleum products, C5-12, reclaimed, wastewater treatment 

68988–79–4 ............. Benzene, C10-12-alkyl derivs., distn. residues 

68988–99–8 ............. Phenols, sodium salts, mixed with sulfur compounds, gasoline alk. scrubber residues 

68989–88–8 ............. Gases (petroleum), crude distn. and catalytic cracking 

68990–35–2 ............. Distillates (petroleum), arom., hydrotreated, dicyclopentadiene-rich 

68991–49–1 ............. Alkanes, C10-13, arom.-free desulfurized 

68991–50–4 ............. Alkanes, C14-17, arom.-free desulfurized 

68991–51–5 ............. Alkanes, C10-13, desulfurized 

68991–52–6 ............. Alkenes, C10-16

69013–21–4 ............. Fuel oil, pyrolysis 

69029–75–0 ............. Oils, reclaimed 

69430–33–7 ............. Hydrocarbons, C6-30

70024–88–3 ............. Ethene, thermal cracking products 

70528–71–1 ............. Distillates (petroleum), heavy distillate solvent ext. heart-cut 

70528–72–2 ............. Distillates (petroleum), heavy distillate solvent ext. vacuum overheads 

70528–73–3 ............. Residues (petroleum), heavy distillate solvent ext. vacuum 

70592–76–6 ............. Distillates (petroleum), intermediate vacuum 

70592–77–7 ............. Distillates (petroleum), light vacuum 

70592–78–8 ............. Distillates (petroleum), vacuum 

70592–79–9 ............. Residues (petroleum), atm. tower, light 

70693–00–4 ............. Hydrocarbon waxes (petroleum), oxidized, sodium salts 

70693–06–0 ............. Aromatic hydrocarbons, C9-11

70913–85–8 ............. Residues (petroleum), solvent-extd. vacuum distilled atm. residuum 

70913–86–9 ............. Alkanes, C18-70

70955–08–7 ............. Alkanes, C4-6

70955–09–8 ............. Alkenes, C13-14 .alpha.-

70955–10–1 ............. Alkenes, C15-18 .alpha.-

70955–17–8 ............. Aromatic hydrocarbons, C12-20

71243–66–8 ............. Hydrocarbon waxes (petroleum), clay-treated, microcryst., oxidized, potassium salts 

71302–82–4 ............. Hydrocarbons, C5-8, Houdry butadiene manuf. by-product 

71329–37–8 ............. Residues (petroleum), catalytic cracking depropanizer, C4-rich 

71808–30–5 ............. Tail gas (petroleum), thermal cracking absorber 

72230–71–8 ............. Distillates (petroleum), cracked steam-cracked, C5-17 fraction 

72623–83–7 ............. Lubricating oils (petroleum), C>25, hydrotreated bright stock-based 

72623–84–8 ............. Lubricating oils (petroleum), C15-30, hydrotreated neutral oil-based, contg. solvent deasphalted residual 

oil 

72623–85–9 ............. Lubricating oils (petroleum), C20-50, hydrotreated neutral oil-based, high-viscosity 

72623–86–0 ............. Lubricating oils (petroleum), C15-30, hydrotreated neutral oil-based 

72623–87–1 ............. Lubricating oils (petroleum), C20-50, hydrotreated neutral oil-based 

93762–80–2 ............. Alkenes, C15-18

900 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(2) Specific exempted chemical 

substances—(i) Exemption. EPA has 

determined that, at this time, the 

information in § 710.52(c)(4) associated 

with the chemicals listed in paragraph 

(b)(2)(iv) of this section is of low current 

interest. 

(ii) Considerations. In making its 

determination of whether this partial 

exemption should apply to a particular 

chemical substance, EPA will consider 

the totality of information available for 

the chemical substance in question, 

including but not limited to, one or 

more of the following considerations: 

(A) Whether the chemical qualifies or 

has qualified in past IUR collections for 

the reporting of the information 

described in § 710.52(c)(4) (i.e., at least 

one site manufactures 300,000 pounds 

or more of the chemical). 

(B) The chemical substance’s 

chemical and physical properties or 

potential for persistence, 

bioaccumulation, health effects, or 

environmental effects (considered 

independently or together). 

(C) The information needs of EPA, 

other federal agencies, tribes, states, and 

local governments, as well as members 

of the public. 

(D) The availability of other 

complementary risk screening 

information. 

(E) The availability of comparable 

processing and use information. 

(F) Whether the potential risks of the 

chemical substance are adequately 

managed by EPA or another agency or 

authority. 

(iii) Amendments. EPA may amend 

the chemical list in paragraph (b)(2)(iv) 

of this section on its own initiative or 

in response to a request from the public 

based on EPA’s determination of 

whether the information in 

§ 710.52(c)(4) is of low interest. 

(A) Any person may request that EPA 

amend the chemical list in paragraph 

(b)(2)(iv) of this section. Your request 

must be in writing and must be 

submitted to the address provided in 

§ 710.59(d). Requests must identify the 

chemical in question, as well as its CAS 

Number or other chemical identification 

number as identified in § 710.52(c)(3)(i). 

Your request should provide sufficient 

information for EPA to determine 

whether collection of the information in 

§ 710.52(c)(4) for the chemical in 

question is of low interest. In preparing 

your request, please refer to the 

considerations outlined in paragraph 

(b)(2)(ii) of this section. If a request 

related to a particular chemical is 

resubmitted, any subsequent request 

must clearly identify new information 

contained in the request. EPA may 

request other information that it 

believes necessary to evaluate the 

request. EPA will issue a written 

response to each request within 120 

days of receipt of the request, and will 

maintain copies of these responses in a 

public docket that will be established 

for each reporting cycle. 

(B) As needed, the Agency will 

initiate rulemaking to make revisions to 

the list in paragraph (b)(2)(iv) of this 

section. 

(C) To assist EPA in reaching a 

decision regarding a particular request 

prior to a given reporting year, requests 

must be submitted to EPA no later than 

12 months prior to the start of the 

reporting year, i.e., by January 1, 2004, 

or by each January 1 at 4–year intervals 

thereafter. 

(iv) List of chemical substances. EPA 

has designated the following chemical 

substances, listed by CAS Number, as 

partially exempt from reporting under 

the IUR.

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES UNDER § 710.46(B)(2) 

CAS No. Chemical 

50–70–4 ................... D-Glucitol 

50–81–7 ................... L-Ascorbic acid 

50–99–7 ................... D-Glucose 

56–87–1 ................... L-Lysine 

57–50–1 ................... .alpha.-D-Glucopyranoside, .beta.-D-fructofuranosyl 

58–95–7 ................... 2H-1-Benzopyran-6-ol, 3,4-dihydro-2,5,7,8-tetramethyl-2-[(4R,8R)-4,8,12- trimethyltridecyl]-, acetate, (2R)- 59–02–9 ................... 2H-1-Benzopyran-6-ol, 3,4-dihydro-2,5,7,8-tetramethyl-2-[(4R,8R)-4,8,12- trimethyltridecyl]-, (2R)-

59–51–8 ................... Methionine 

69–65–8 ................... D-Mannitol 

87–79–6 ................... L-Sorbose 

123–94–4 ................. Octadecanoic acid, 2,3-dihydroxypropyl ester 

124–38–9 ................. Carbon dioxide 

137–08–6 ................. .beta.-Alanine, N-[(2R)-2,4-dihydroxy-3,3-dimethyl-1-oxobutyl]-, calcium alt (2:1) 

142–47–2 ................. L-Glutamic acid, monosodium salt 

150–30–1 ................. Phenylalanine 

1317–65–3 ............... Limestone 

1333–74–0 ............... Hydrogen 

1592–23–0 ............... Octadecanoic acid, calcium salt 

7440–37–1 ............... Argon 

7440–44–0 ............... Carbon 

7727–37–9 ............... Nitrogen 

7782–42–5 ............... Graphite 

7782–44–7 ............... Oxygen 

8001–21–6 ............... Sunflower oil 

8001–22–7 ............... Soybean oil 

8001–23–8 ............... Safflower oil 

8001–26–1 ............... Linseed oil 

8001–29–4 ............... Cottonseed oil 

8001–30–7 ............... Corn oil 

8001–31–8 ............... Coconut oil 

8001–78–3 ............... Castor oil, hydrogenated 

8001–79–4 ............... Castor oil 

8002–03–7 ............... Peanut oil 

8002–13–9 ............... Rape oil 

8002–43–5 ............... Lecithins 

8002–75–3 ............... Palm oil 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 901

CAS NUMBERS OF PARTIALLY EXEMPT CHEMICAL SUBSTANCES UNDER § 710.46(B)(2)—Continued

CAS No. Chemical 

8006–54–0 ............... Lanolin 

8016–28–2 ............... Lard, oil 

8016–70–4 ............... Soybean oil, hydrogenated 

8021–99–6 ............... Charcoal, bone 

8029–43–4 ............... Syrups, hydrolyzed starch 

9004–53–9 ............... Dextrin 

9005–25–8 ............... Starch 

9050–36–6 ............... Maltodextrin 

11103–57–4 ............. Vitamin A 

16291–96–6 ............. Charcoal 

26836–47–5 ............. D-Glucitol, monooctadecanoate 

61789–44–4 ............. Fatty acids, castor-oil 

61789–97–7 ............. Tallow 

61789–99–9 ............. Lard 

64147–40–6 ............. Castor oil, dehydrated 

64755–01–7 ............. Fatty acids, tallow, calcium salts 

65996–63–6 ............. Starch, acid-hydrolyzed 

65996–64–7 ............. Starch, enzyme-hydrolyzed 

67701–01–3 ............. Fatty acids, C12-18

68002–85–7 ............. Fatty acids, C14-22 and C16-22-unsatd. 

68131–37–3 ............. Syrups, hydrolyzed starch, dehydrated 

68188–81–8 ............. Grease, poultry 

68308–54–3 ............. Glycerides, tallow mono-, di- and tri-, hydrogenated 

68334–00–9 ............. Cottonseed oil, hydrogenated 

68334–28–1 ............. Fats and glyceridic oils, vegetable, hydrogenated 

68409–76–7 ............. Bone meal, steamed 

68424–45–3 ............. Fatty acids, linseed-oil 

68424–61–3 ............. Glycerides, C16-18 and C18-unsatd. mono- and di68425–17–2 ............. Syrups, hydrolyzed starch, hydrogenated 

68439–86–1 ............. Bone, ash 

68442–69–3 ............. Benzene, mono-C10-14-alkyl derivs. 

68476–78–8 ............. Molasses 

68514–27–2 ............. Grease, catch basin 

68514–74–9 ............. Palm oil, hydrogenated 

68525–87–1 ............. Corn oil, hydrogenated 

68648–86–2 ............. Benzene, C14-16-alkyl derivs. 

68648–87–3 ............. Benzene, C10-16-alkyl derivs. 

68918–42–3 ............. Soaps, stocks, soya 

68952–94–3 ............. Soaps, stocks, vegetable-oil 

68989–98–0 ............. Fats and glyceridic oils, vegetable, residues 

73138–67–7 ............. Lard, hydrogenated 

129813–58–7 ........... Benzene, mono-C10-13-alkyl derivs. 

129813–59–8 ........... Benzene, mono-C12-14-alkyl derivs. 

129813–60–1 ........... Benzene, mono-C14-16-alkyl derivs. 

(3) Inorganic chemical substances. 

For purposes of this subpart, an 

inorganic chemical substance is any 

chemical substance which does not 

contain carbon or contains carbon only 

in the form of carbonato [=CO3], cyano 

[--CN], cyanato [--OCN], isocyano [--NC], 

or isocyanato [--NCO] groups or the 

chalcogen analogues of such groups. 

During the 2006 submission period, 

manufacturers are excluded only from 

the reporting requirements under 

§ 710.52(c)(4) for inorganic chemical 

substances. During the 2006 submission 

period, manufacturers of inorganic 

chemical substances are not excluded 

from the other reporting requirements 

under this part. During submission 

periods following the 2006 submission 

period, manufacturers of inorganic 

chemical substances are subject to all of 

the reporting requirements in this 

subpart.

§ 710.48 Persons who must report. 

Except as provided in § § 710.49 and 

710.50, the following persons are 

subject to the requirements of this 

subpart. Persons must determine 

whether they must report under this 

section for each chemical substance that 

they manufacture (including import) at 

an individual site. 

(a) Persons subject to recurring 

reporting. Any person who 

manufactured (including imported) for 

commercial purposes 25,000 lbs. 

(11,340 kg) or more of a chemical 

substance described in § 710.45 at any 

single site owned or controlled by that 

person at any time during calendar year 

2005 or during the calendar year at 4–

year intervals thereafter is subject to 

reporting. 

(b) Special provisions for importers. 

For purposes of this section, the site for 

a person who imports a chemical 

substance described in § 710.45 is the 

site of the operating unit within the 

person’s organization which is directly 

responsible for importing the substance 

and which controls the import 

transaction. The import site may in 

some cases be the organization’s 

headquarters in the United States (see 

also § 710.55(b)).

§ 710.49 Persons not subject to this 

subpart. 

A person described in § 710.48 is not 

subject to the requirements of this 

subpart if that person qualifies as a 

small manufacturer as that term is 

defined in § 704.3 of this chapter. 

Notwithstanding this exclusion, a 

902 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

person who qualifies as a small 

manufacturer is subject to this subpart 

with respect to any chemical substance 

that is the subject of a rule proposed or 

promulgated under section 4, 5(b)(4), or 

6 of the Act, or is the subject of an order 

in effect under section 5(e) of the Act, 

or is the subject of relief that has been 

granted under a civil action under 

section 5 or 7 of the Act.

§ 710.50 Activities for which reporting is 

not required. 

A person described in § 710.48 is not 

subject to the requirements of this 

subpart with respect to any chemical 

substance described in § 710.45 that the 

person solely manufactured or imported 

under the following circumstances: 

(a) The person manufactured or 

imported the chemical substance 

described in § 710.45 solely in small 

quantities for research and 

development. 

(b) The person imported the chemical 

substance described in § 710.45 as part 

of an article. 

(c) The person manufactured the 

chemical substance described in 

§ 710.45 in a manner described in 

§ 720.30(g) or (h) of this chapter.

§ 710.52 Reporting information to EPA. 

Any person who must report under 

this subpart, as described in § 710.48, 

must submit the information described 

in this section for each chemical 

substance described in § 710.45 that the 

person manufactured (including 

imported) for commercial purposes in 

an amount of 25,000 lbs. (11,340 kg) or 

more at any one site during calendar 

year 2005 or during the calendar year at 

4–year intervals thereafter. (See 

§ 710.48(b) for the ‘‘site’’ for importers). 

A separate form must be submitted for 

each chemical substance at each site for 

which the submitter is required to 

report. A submitter of information under 

this subpart must report information as 

described in paragraphs (c)(1), (c)(2), 

and (c)(3) of this section to the extent 

that such information is known to or 

reasonably ascertainable by that person 

whereas a submitter must report 

information as described in paragraph 

(c)(4) of this section only to the extent 

that such information is readily 

obtainable by that person. A submitter 

under this subpart must report 

information that applies to the calendar 

year for which the person is required to 

report (i.e., calendar year 2005 and the 

calendar year at 4–year intervals 

thereafter). 

(a) Reporting in writing. Any person 

who chooses to report information to 

EPA in writing must do so by 

completing the reporting form available 

from EPA at the address set forth in 

§ 710.59. The form must include all 

information described in paragraph (c) 

of this section. Persons reporting in 

writing must submit a separate form for 

each site for which the person is 

required to report. 

(b) Reporting by magnetic media. Any 

person who chooses to report 

information to EPA by means of 

magnetic media must submit the 

information described in paragraph (c) 

of this section. Magnetic media 

submitted in response to this subpart 

must meet EPA specifications, as 

described in the instruction booklet 

available from EPA at the address set 

forth in § 710.59. 

(c) Information to be reported. 

Manufacturers (including importers) of 

a reportable chemical substance in an 

amount of 25,000 lbs. (11,340 kg) or 

more at a site during a reporting year 

must report the information described 

in paragraphs (c)(1), (c)(2), and (c)(3) of 

this section. Manufacturers (including 

importers) of a reportable chemical 

substance in an amount of 300,000 lbs. 

(136,077 kg) or more at a site during a 

reporting year must report the 

information described in paragraph 

(c)(4) of this section in addition to the 

information described in paragraphs 

(c)(1), (c)(2), and (c)(3) of this section. 

As described in § 710.46(b)(3), 

manufacturers of certain inorganic 

chemical substances are not required to 

report the information described in 

paragraph (c)(4) of this section during 

the 2006 submission period, but are 

required to report this information 

during subsequent submission periods. 

As described in § 710.46(b)(1) and (b)(2), 

manufacturers of certain chemicals are 

not required to report the information 

described in paragraph (c)(4) of this 

section. 

(1) A certification statement signed 

and dated by an authorized official of 

the submitter company. Persons 

reporting by means of magnetic media 

must submit this information on the 

reporting form available as described in 

§ 710.59. 

(2) Company and plant site 

information. The following company 

and plant site information must be 

reported for each site at which at least 

25,000 lbs. (11,340 kg) of a reportable 

chemical substance is manufactured 

(including imported) during calendar 

year 2005 or during the calendar year at 

4–year intervals thereafter (see 

§ 710.48(b) for the ‘‘site’’ for importers): 

(i) The name of a person who will 

serve as technical contact for the 

submitter company, and who will be 

able to answer questions about the 

information submitted by the company 

to EPA, the parent company name and 

Dun and Bradstreet Number, the contact 

person’s full mailing address, the 

contact person’s telephone number and 

the contact person’s e-mail address. 

(ii) The name and full street address 

of each site. A submitter under this 

subpart must include the appropriate 

Dun and Bradstreet Number for each 

plant site reported, and the county or 

parish (or other jurisdictional indicator) 

in which the plant site is located. 

(3) Specific information for chemicals 

manufactured in amounts of 25,000 lbs. 

or more. The following chemicalspecific information must be reported 

for each reportable chemical substance 

manufactured at (including imported 

into) each site in amounts of 25,000 lbs. 

(11,340 kg) or more during calendar year 

2005 or during the calendar year at 4–

year intervals thereafter: 

(i) The specific chemical name and 

CAS Number of each reportable 

chemical substance at each site. A 

submitter under this subpart may use an 

EPA-designated Accession Number for 

confidential substances, or a 

premanufacture notice (PMN) case 

number (see § 720.65 of this chapter) in 

lieu of a CAS Number when a CAS 

Number is not known to or reasonably 

ascertainable by the submitter. In 

addition to reporting the number itself, 

submitters must specify the type of 

number they are reporting by selecting 

from among the following codes:

CODES TO SPECIFY TYPE OF

CHEMICAL IDENTIFYING NUMBER

Codes Number Type 

A ................. Accession Number 

C ................. CAS Registry Number 

P ................. PMN Number 

(ii) A statement indicating, for each 

reportable chemical substance at each 

site, whether the substance is 

manufactured in the United States, 

imported into the United States, or both 

manufactured in the United States and 

imported into the United States. 

(iii) A designation indicating, for each 

reportable chemical substance at each 

site, whether the substance is sitelimited. 

(iv) The total volume (in pounds) of 

each reportable chemical substance 

manufactured (including imported) at 

each site. This amount must be reported 

to two significant figures of accuracy 

provided that the reported figures are 

within plus or minus 10% of the actual 

volume. 

(v) Any person claiming that the 

volume reported under paragraph 

(c)(3)(iv) of this section is confidential 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 903

business information under § 710.58 

must indicate, for each reportable 

chemical substance at each site, whether 

the total volume range (in pounds) 

which corresponds with the specific 

volume figure reported in response to 

paragraph (c)(3)(iv) of this section is 

also confidential. Volume ranges are 

listed in the following table:

VOLUME RANGES

From To 

25,000 lbs. ................ 300,000 lbs. 

300,000 lbs. .............. 1,000,000 lbs. 

1,000,000 lbs. ........... 10,000,000 lbs. 

10,000,000 lbs. ......... 50,000,000 lbs. 

50,000,000 lbs. ......... 100,000,000 lbs. 

100,000,000 lbs. ....... 500,000,000 lbs. 

500,000,000 lbs. ....... 1,000,000,000 lbs. 

Greater than 

1,000,000,000 lbs..

(vi) The total number of workers 

reasonably likely to be exposed to each 

reportable chemical substance at each 

site. For each reportable substance at 

each site, the submitter must select from 

among the ranges of workers listed in 

the following table and report the 

corresponding code (i.e., W1 through 

W8):

CODES FOR REPORTING NUMBER OF

WORKERS REASONABLY LIKELY TO

BE EXPOSED

Codes Range 

W1 .............. Less than 10 workers 

W2 .............. At least 10 but less than 25 

workers 

W3 .............. At least 25 but less than 50 

workers 

W4 .............. At least 50 but less than 100 

workers 

W5 .............. At least 100 but less than 500 

workers 

W6 .............. At least 500 but less than 

1,000 workers 

W7 .............. At least 1,000 but less than 

10,000 workers 

W8 .............. At least 10,000 workers 

(vii) The maximum concentration, 

measured by percentage of weight, of 

each reportable chemical substance at 

the time it is sent off-site from each site. 

If the chemical is site-limited, you must 

report the maximum concentration, 

measured by percentage of weight, of 

the reportable chemical substance at the 

time it is reacted on-site to produce a 

different chemical substance. This 

information must be reported regardless 

of the physical form(s) in which the 

substance is sent off-site/reacted on-site. 

For each substance at each site, select 

the maximum concentration of the 

substance from among the ranges listed 

in the following table and report the 

corresponding code (i.e., M1 through 

M5):

CODES FOR REPORTING MAXIMUM

CONCENTRATION OF CHEMICAL SUBSTANCE

Codes Concentration Range (% 

weight) 

M1 .............. Less than 1% by weight 

M2 .............. From 1 to 30% by weight 

M3 .............. From 31 to 60% by weight 

M4 .............. From 61 to 90% by weight 

M5 .............. Greater than 90% by weight 

(viii) The physical form(s) of the 

reportable chemical substance as it is 

sent off-site from each site. If the 

chemical is site-limited, you must report 

the physical form(s) of the reportable 

chemical substance at the time it is 

reacted on-site to produce a different 

chemical substance. For each substance 

at each site, the submitter must report 

as many physical forms as apply from 

among the physical forms listed below: 

(A) Dry powder. 

(B) Pellets or large crystals. 

(C) Water- or solvent-wet solid. 

(D) Other solid. 

(E) Gas or vapor. 

(F) Liquid. 

(ix) Submitters must report the 

percentage, rounded off to the closest 

10%, of total production volume of the 

reportable chemical substance, reported 

in response to paragraph (c)(3)(iv) of 

this section, that is associated with each 

physical form reported under paragraph 

(c)(3)(viii) of this section. The sum of 

the percentages reported must not add 

up to more than 100%. 

(4) Specific information for chemical 

substances manufactured in amounts of 

300,000 lbs. or more. In addition to the 

information required under paragraphs 

(c)(1), (c)(2), and (c)(3) of this section, 

the following information must be 

reported for each reportable chemical 

substance manufactured (including 

imported) in an amount of 300,000 lbs. 

(136,077 kg) or more at any one site 

during calendar year 2005 or during the 

calendar year at 4–year intervals 

thereafter. Persons subject to paragraph 

(c)(4) of this section must report the 

information described in paragraphs 

(c)(4)(i) and (c)(4)(ii) of this section for 

each reportable chemical substance at 

sites under their control and at sites that 

receive a reportable chemical substance 

from the submitter directly or indirectly 

(including through a broker/distributor, 

from a customer of the submitter, etc.). 

Information reported in response to this 

paragraph must be reported only to the 

extent that it is readily obtainable by the 

submitter. If information responsive to a 

given data requirement under this 

paragraph, including information in the 

form of an estimate, is not readily 

obtainable, the submitter is not required 

to respond to the requirement. 

(i) Industrial processing and use 

information. 

(A) A designation indicating the type 

of industrial processing or use 

operation(s) at each site that receives a 

reportable substance from the submitter 

site directly or indirectly (whether the 

recipient site(s) are controlled by the 

submitter site or not). For each chemical 

substance, report the letters which 

correspond to the appropriate 

processing or use operation(s). A 

particular designation may need to be 

reported more than once, to the extent 

that a submitter reports more than one 

NAICS code (under paragraph 

(c)(4)(i)(B) of this section) that applies to 

a given designation under this 

paragraph.

Designation Operation 

PC ............ Processing as a reactant 

PF ............. Processing - incorporation into 

formulation, mixture or reaction product 

PA ............ Processing - incorporation into 

article 

PK ............ Processing - repackaging 

U ............... Use - non-incorporative activities 

(B) The five-digit North American 

Industrial Classification System 

(NAICS) codes which best describe the 

industrial activities associated with 

each industrial processing or use 

operation reported under paragraph 

(c)(4)(i)(A) of this section. Information 

about how to find these codes is 

provided in the instruction booklet 

available from EPA at the address set 

forth in § 710.59. A particular NAICS 

code may need to be reported more than 

once, to the extent that a submitter 

reports more than one industrial 

function code (under paragraph 

(c)(4)(i)(C) of this section) that applies to 

a given NAICS code under this 

paragraph. 

(C) For each NAICS code reported 

under paragraph (c)(4)(i)(B) of this 

section, code(s) from the following list 

must be selected to designate the 

industrial function category(ies) that 

best represents the specific manner in 

which the chemical substance is used. 

A particular industrial function category 

may need to be reported more than 

once, to the extent that a submitter 

reports more than one industrial 

processing or use operation/NAICS code 

904 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

combination (under paragraphs 

(c)(4)(i)(A) and (c)(4)(i)(B) of this 

section) that applies to a given 

industrial function category under this 

paragraph. If more than 10 unique 

combinations of industrial processing or 

use operations/NAICS codes/industrial 

function categories apply to a chemical 

substance, submitters need only report 

the 10 unique combinations for the 

chemical substance that cumulatively 

represent the largest percentage of the 

submitter’s production volume for that 

chemical, measured by weight.

CODES FOR REPORTING INDUSTRIAL

FUNCTION CATEGORIES

Codes Category 

U01 ............. Adsorbents and absorbents 

U02 ............. Adhesives and binding agents 

U03 ............. Aerosol propellants 

U04 ............. Agricultural chemicals (nonpesticidal) 

U05 ............. Anti-adhesive agents 

U06 ............. Bleaching agents 

U07 ............. Coloring agents, dyes 

U08 ............. Coloring agents, pigments 

U09 ............. Corrosion inhibitors and antiscaling agents 

U10 ............. Fillers 

U11 ............. Fixing agents 

U12 ............. Flame retardants 

U13 ............. Flotation agents 

U14 ............. Fuels 

U15 ............. Functional fluids 

U16 ............. Intermediates 

U17 ............. Lubricants 

U18 ............. Odor agents 

U19 ............. Oxidizing agents 

U20 ............. pH-regulating agents 

U21 ............. Photosensitive chemicals 

U22 ............. Plating agents and metal surface treating agents 

U23 ............. Processing aid, not otherwise 

listed 

U24 ............. Process regulators, used in 

vulcanization or polymerization processes 

U25 ............. Process regulators, other than 

polymerization or vulcanization processes 

U26 ............. Reducing agents 

U27 ............. Solvents (for cleaning or 

degreasing) 

U28 ............. Solvents (which become part 

of product formulation or 

mixture) 

U29 ............. Solvents (for chemical manufacture and processing and 

are not part of product at 

greater than one percent by 

weight) 

U30 ............. Stabilizers 

U31 ............. Surface active agents 

U32 ............. Viscosity adjustors 

U33 ............. Other 

(D) The estimated percentage, 

rounded off to the closest 10%, of total 

production volume of the reportable 

chemical substance associated with 

each combination of industrial 

processing or use operation, NAICS 

code and industrial function category. 

Where a particular combination of 

industrial processing or use operation, 

NAICS code and industrial function 

category accounts for 5% or less of the 

submitter’s site’s total production 

volume of a reportable chemical 

substance, the percentage must not be 

rounded off to zero % if the production 

volume attributable to that industrial 

processing or use operation, NAICS 

code and industrial function category 

combination is 300,000 lbs. (136,077 kg) 

or more during the reporting year. 

Instead, in such a case, submitters must 

report the percentage, rounded off to the 

closest 1%, of the submitter’s site’s total 

production volume of the reportable 

chemical substance associated with the 

particular combination of industrial 

processing or use operation, NAICS 

code and industrial function category. 

(E) For each combination of industrial 

processing or use operation, NAICS 

code and industrial function category, 

the submitter must estimate the number 

of sites at which each reportable 

chemical substance is processed or 

used. For each combination associated 

with each substance, the submitter must 

select from among the ranges of sites 

listed in the following table and report 

the corresponding code (i.e., S1 through 

S7):

CODES FOR REPORTING NUMBERS OF

SITES

Codes Range 

S1 ............... Less than 10 sites 

S2 ............... From 10 to 25 sites 

S3 ............... From 25 to 100 sites 

S4 ............... From 100 to 250 sites 

S5 ............... From 250 to 1,000 sites 

S6 ............... From 1,000 to 10,000 sites 

S7 ............... More than 10,000 sites 

(F) For each combination of industrial 

processing or use operation, NAICS 

code and industrial function category, 

the submitter must estimate the number 

of workers reasonably likely to be 

exposed to each reportable chemical 

substance. For each combination 

associated with each substance, the 

submitter must select from among the 

worker ranges listed in paragraph 

(c)(3)(vi) of this section and report the 

corresponding code (i.e., W1 though 

W8). 

(ii) Commercial and consumer use 

information. 

(A) Using the codes listed in this 

paragraph, submitters must designate 

the commercial and consumer product 

category or categories that best describe 

the commercial and consumer products 

in which each reportable chemical 

substance is used (whether the recipient 

site(s) are controlled by the submitter 

site or not). If more than 10 codes apply 

to a chemical substance, submitters 

need only report the 10 codes for the 

chemical substance that cumulatively 

represent the largest percentage of the 

submitter’s production volume for that 

chemical, measured by weight:

CODES FOR REPORTING COMMERCIAL

AND CONSUMER PRODUCT CATEGORIES

Codes Category 

C01 ............. Artists’ supplies 

C02 ............. Adhesives and sealants 

C03 ............. Automotive care products 

C04 ............. Electrical and electronic products 

C05 ............. Glass and ceramic products 

C06 ............. Fabrics, textiles and apparel 

C07 ............. Lawn and garden products 

(non-pesticidal) 

C08 ............. Leather products 

C09 ............. Lubricants, greases and fuel 

additives 

C10 ............. Metal products 

C11 ............. Paper products 

C12 ............. Paints and coatings 

C13 ............. Photographic chemicals 

C14 ............. Polishes and sanitation goods 

C15 ............. Rubber and plastic products 

C16 ............. Soaps and detergents 

C17 ............. Transportation products 

C18 ............. Wood and wood furniture 

C19 ............. Other 

(B) Submitters must determine, 

within each commercial and consumer 

product category reported under 

paragraph (c)(4)(ii)(A) of this section, 

whether any amount of each reportable 

chemical substance manufactured 

(including imported) by the submitter is 

present in (for example, a plasticizer 

chemical used to make pacifiers) or on 

(for example, as a component in the 

paint on a toy) any consumer products 

intended for use by children up to the 

age of 14, regardless of the 

concentration of the substance 

remaining in or on the product. 

Submitters must select from the 

following options: the chemical 

substance is used in or on any consumer 

products intended for use by children, 

the chemical substance is not used in or 

on any consumer products intended for 

use by children, or information as to 

whether the chemical substance is used 

in or on any consumer products 

intended for use by children is not 

readily obtainable. 

(C) The estimated percentage, 

rounded off to the closest 10%, of the 

submitter’s site’s total production 

volume of the reportable chemical 

substance associated with each 

commercial and consumer product 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 905

category. Where a particular commercial 

and consumer product category 

accounts for 5% or less of the total 

production volume of a reportable 

chemical substance, the percentage 

must not be rounded off to zero % if the 

production volume attributable to that 

commercial and consumer product 

category is 300,000 lbs. (136,077 kg) or 

more during the reporting year. Instead, 

in such a case, submitters must report 

the percentage, rounded off to the 

closest 1%, of the submitter’s site’s total 

production volume of the reportable 

chemical substance associated with the 

particular commercial and consumer 

product category. 

(D) Where the reportable chemical 

substance is used in commercial or 

consumer products, the estimated 

typical maximum concentration, 

measured by weight, of the chemical 

substance in each commercial and 

consumer product category reported 

under paragraph (c)(4)(ii)(A) of this 

section. For each substance in each 

commercial and consumer product 

category reported under paragraph 

(c)(4)(ii)(A) of this section, submitters 

must select from among the ranges of 

concentrations listed in the table in 

paragraph (c)(3)(vii) of this section and 

report the corresponding code (i.e., M1 

through M5).

§ 710.53 When to report. 

All information reported to EPA in 

response to the requirements of this 

subpart must be submitted during an 

applicable submission period. The first 

submission period is from August 25, 

2006, to December 23, 2006. Subsequent 

recurring submission periods are from 

August 25 to December 23 at 4–year 

intervals after the first submission 

period. Any person described in 

§ 710.48(a) must report during each 

submission period for each chemical 

substance described in § 710.45 that the 

person manufactured (including 

imported) during the preceding calendar 

year (i.e., the ‘‘reporting year’’).

§ 710.55 Duplicative reporting. 

(a) With regard to section 8(a) rules. 

Any person subject to the requirements 

of this part who previously has 

complied with reporting requirements 

of a rule under section 8(a) of the Act 

by submitting the information described 

in § 710.52 for a chemical substance 

described in § 710.45 to EPA, and has 

done so within 1 year of the start of a 

submission period described in 

§ 710.53, is not required to report again 

on the manufacture of that substance at 

that site during that submission period. 

(b) With regard to importers. This part 

requires that only one report be 

submitted on each import transaction 

involving a chemical substance 

described in § 710.45. When two or 

more persons are involved in a 

particular import transaction and each 

person meets the Agency’s definition of 

‘‘importer’’ as set forth in § § 710.3 and 

704.3 of this chapter, they may 

determine among themselves who 

should submit the required report; if no 

report is submitted as required under 

this part, EPA will hold each such 

person liable for failure to report.

§ 710.57 Recordkeeping requirements. 

Each person who is subject to the 

reporting requirements of this subpart 

must maintain records that document 

any information reported to EPA. 

Records relevant to reporting during a 

submission period must be retained for 

a period of 5 years beginning with the 

effective date of that submission period.

§ 710.58 Confidentiality. 

(a) Any person submitting 

information under this subpart may 

assert a business confidentiality claim 

for the information at the time it is 

submitted. These claims will apply only 

to the information submitted with the 

claim. New confidentiality claims, if 

necessary, must be asserted with regard 

to information submitted during the 

next submission period. Guidance for 

asserting confidentiality claims is 

provided in the instruction booklet 

identified in § 710.59. Information 

claimed as confidential in accordance 

with this section will be treated and 

disclosed in accordance with the 

procedures in part 2 of this chapter. 

(b) Chemical identity. A person may 

assert a claim of confidentiality for the 

chemical identity of a specific chemical 

substance only if the identity of that 

substance is treated as confidential in 

the Master Inventory File as of the time 

the report is submitted for that 

substance under this subpart. The 

following steps must be taken to assert 

a claim of confidentiality for the 

identity of a reportable chemical 

substance: 

(1) The submitter must submit with 

the report detailed written answers to 

the following questions signed and 

dated by an authorized official. 

(i) What harmful effects to your 

competitive position, if any, do you 

think would result from the identity of 

the chemical substance being disclosed 

in connection with reporting under this 

subpart? How could a competitor use 

such information? Would the effects of 

disclosure be substantial? What is the 

causal relationship between the 

disclosure and the harmful effects? 

(ii) How long should confidential 

treatment be given? Until a specific 

date, the occurrence of a specific event, 

or permanently? Why? 

(iii) Has the chemical substance been 

patented? If so, have you granted 

licenses to others with respect to the 

patent as it applies to the chemical 

substance? If the chemical substance has 

been patented and therefore disclosed 

through the patent, why should it be 

treated as confidential? 

(iv) Has the identity of the chemical 

substance been kept confidential to the 

extent that your competitors do not 

know it is being manufactured or 

imported for a commercial purpose by 

anyone? 

(v) Is the fact that the chemical 

substance is being manufactured 

(including imported) for a commercial 

purpose available to the public, for 

example in technical journals, libraries, 

or State, local, or Federal agency public 

files? 

(vi) What measures have been taken to 

prevent undesired disclosure of the fact 

that the chemical substance is being 

manufactured (including imported) for a 

commercial purpose? 

(vii) To what extent has the fact that 

this chemical substance is manufactured 

(including imported) for commercial 

purposes been revealed to others? What 

precautions have been taken regarding 

these disclosures? Have there been 

public disclosures or disclosures to 

competitors? 

(viii) Does this particular chemical 

substance leave the site of manufacture 

(including import) in any form, e.g., as 

product, effluent, emission? If so, what 

measures have been taken to guard 

against the discovery of its identity? 

(ix) If the chemical substance leaves 

the site in a product that is available to 

the public or your competitors, can the 

substance be identified by analysis of 

the product? 

(x) For what purpose do you 

manufacture (including import) the 

substance? 

(xi) Has EPA, another Federal agency, 

or any Federal court made any pertinent 

confidentiality determinations regarding 

this chemical substance? If so, please 

attach copies of such determinations. 

(2) If any of the information contained 

in the answers to the questions listed in 

paragraph (b)(1) of this section is 

asserted to contain confidential business 

information, the submitter must clearly 

identify the information that is claimed 

confidential by marking the specific 

information on each page with a label 

such as ‘‘confidential business 

information,’’ ‘‘proprietary,’’ or ‘‘trade 

secret.’’

906 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(c) Site identity. A submitter may 

assert a claim of confidentiality for a site 

only if the linkage of the site with a 

reportable chemical is confidential and 

not publicly available. The following 

steps must be taken to assert a claim of 

confidentiality for a site identity: 

(1) The submitter must submit with 

the report detailed written answers to 

the following questions signed and 

dated by an authorized official: 

(i) Has site information been linked 

with a chemical identity in any other 

Federal, state or local reporting scheme? 

For example, is the chemical identity 

linked to a facility in a filing under the 

Emergency Planning and Community 

Right-to-Know Act (EPCRA) section 311, 

namely through a Material Safety Data 

Sheet (MSDS)? If so, identify all such 

schemes. Was the linkage claimed as 

confidential in any of these instances? 

(ii) What harmful effect, if any, to 

your competitive position do you think 

would result from the identity of the site 

and the chemical substance being 

disclosed in connection with reporting 

under this subpart? How could a 

competitor use such information? 

Would the effects of disclosure be 

substantial? What is the causal 

relationship between the disclosure and 

the harmful effects? 

(2) If any of the information contained 

in the answers to the questions listed in 

paragraph (c)(1) of this section is 

asserted to contain confidential business 

information, the submitter must clearly 

identify the information that is claimed 

confidential by marking the specific 

information on each page with a label 

such as ‘‘confidential business 

information,’’ ‘‘proprietary,’’ or ‘‘trade 

secret.’’

(d) If no claim of confidentiality is 

indicated on the reporting form 

submitted to EPA under this subpart, or 

if confidentiality claim substantiation 

required under paragraphs (c) and (d) of 

this section is not submitted with the 

reporting form, EPA may make the 

information available to the public 

without further notice to the submitter.

§ 710.59 Availability of reporting form and 

instructions. 

(a) Use the proper EPA form. You 

must use the EPA form identified as 

‘‘Form U’’ to submit written information 

in response to the requirements of this 

subpart. Copies of Form U are available 

from EPA at the address set forth in 

paragraph (c) of this section and from 

the EPA Internet Home Page at http://

www.epa.gov/oppt/iur. 

(b) Follow the reporting instructions. 

Guidance for completing the reporting 

form and preparing an electronic 

(magnetic media) report will be made 

available prior to each submission 

period. 

(c) Obtain the reporting package and 

copies of the form. EPA will send a 

reporting package (consisting of a copy 

of Form U and a copy of the reporting 

instructions) to those submitters that 

reported in the IUR submission period 

that occurred immediately prior to the 

current submission period. Failure to 

receive a reporting package does not 

obviate or otherwise affect the 

requirement to submit a timely report. If 

you did not receive a reporting package, 

but are required to report, you may 

obtain a copy of the reporting package 

from EPA by submitting a request for 

this information as follows: 

(1) By telephone. Call the EPA TSCA 

Hotline at 202–554–1404. 

(2) By e-mail. Send an e-mail request 

for this information to the EPA TSCA 

Hotline at TSCA-Hotline@epa.gov. 

(3) By mail. Send a written request for 

this information to the following 

address: TSCA Hotline, Mailcode 

7408M, ATTN: Inventory Update Rule, 

Office of Pollution Prevention and 

Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

(4) By Internet. To download a copy 

of the form and/or instructions go to: 

http://www.epa.gov/oppt/iur. 

(d) Submit the completed reports. You 

must submit your completed reporting 

form(s) and/or magnetic media to EPA 

at the following address: OPPT 

Document Control Officer (DCO), 

Mailcode 7407M, ATTN: Inventory 

Update Rule, Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460. 

3. Part 723 is amended as follows:

PART 723—[AMENDED] 

a. The authority citation for part 723 

continues to read as follows:

Authority: 15 U.S.C. 2604.

b. In § 723.175, revise paragraph (b)(3) 

to read as follows:

§ 723.175 Premanufacture Notification 

Exemptions

* * * * *

(b) Definitions.***

(3) The terms byproduct, EPA, 

impurities, person, and site have the 

same meanings as in § 710.3 of this 

chapter.

* * * * *

[FR Doc. 02–32909 Filed 12–31–02; 9:56 am] 

BILLING CODE 6560–50–S

Tuesday,

January 7, 2003

Part III

Department of 

Commerce

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660

Magnuson-Stevens Act Provisions; 

Fisheries off West Coast States and in the 

Western Pacific; Pacific Coast Groundfish 

Fishery; Final Rule and Proposed Rule

908 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 660

[Docket No. 021209299–2299–01; I.D. 

112502B]

RIN 0648–AQ19

Magnuson-Stevens Act Provisions; 

Fisheries Off West Coast States and in 

the Western Pacific; Pacific Coast 

Groundfish Fishery; Groundfish 

Fishery Management Measures

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Emergency rule; groundfish 

fishery management measures for 

January through February 2003; request 

for comments.

SUMMARY: NMFS announces the January 

through February 2003 management 

measures for groundfish taken in the 

U.S. exclusive economic zone (EEZ) and 

state waters off the coasts of 

Washington, Oregon, and California. 

Management measures for January 

through February 2003 are intended to 

prevent overfishing; rebuild overfished 

species; minimize incidental catch and 

discard of overfished and depleted 

stocks; provide equitable harvest 

opportunity for both recreational and 

commercial sectors; and, within the 

commercial fisheries, allow 

achievement of harvest guidelines and 

limited entry and open access 

allocations to the extent practicable.

DATES: Effective January 1, 2003, 

through February 28, 2003. Comments 

must be received no later than 5 p.m, 

local time (l.t.) on February 6, 2003.

ADDRESSES: Send comments to D. Robert 

Lohn, Administrator, Northwest Region 

(Regional Administrator), NMFS, 7600 

Sand Point Way N.E., Bldg. 1, Seattle, 

WA 98115–0070, or fax to 206–526–

6736; or Rodney McInnis, Acting 

Administrator, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213, or 

fax to 562–980–4047. Comments will 

not be accepted if submitted via e-mail 

or Internet. Information relevant to this 

rule, which includes environmental 

assessment/regulatory impact review/

initial regulatory flexibility analysis 

(EA/RIR), is available for public review 

during business hours at the office the 

Pacific Fishery Management Council 

(Council), at 7700 NE Ambassador 

Place, Portland, OR 97220, phone: 503–

820–2280. Additional reports referred to 

in this document may also be obtained 

from the Council.

FOR FURTHER INFORMATION CONTACT:

Yvonne deReynier or Becky Renko 

(Northwest Region, NMFS), phone: 206–

526–6140; fax: 206–526–6736 and; email: yvonne.dereynier@noaa.gov, 

becky.renko@noaa.gov or Svein Fougner 

(Southwest Region, NMFS) phone: 562–

980–4000; fax: 562–980–4047 and; email: svein.fougner@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

This emergency rule also is accessible 

via the Internet at the Office of the 

Federal Register′s website at http://

www.access.gpo.gov/suldocs/aces/

aces140.html. Background information 

and documents are available at the 

NMFS Northwest Region website at 

http://www.nwr.noaa.gov/1sustfsh/

gdfsh01.htm and at the Council′s 

website at http://www.pcouncil.org.

Background

The Pacific Coast groundfish fishery 

management plan (FMP) requires that 

fishery specifications for groundfish be 

annually evaluated, and revised as 

necessary, that optimum yields (OYs) be 

specified for species or species groups 

in need of particular protection, and 

that management measures designed to 

achieve the OYs be published in the 

Federal Register and made effective by 

January 1, the beginning of the fishing 

year. The Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) and the FMP 

require that NMFS implement actions to 

prevent overfishing and to rebuild 

overfished stocks.

Throughout 2002, the Council has 

been developing revisions to its 

specifications and management 

measures process, through proposed 

Amendment 17 to the FMP. Among 

other procedural changes, Amendment 

17 would revise the NMFS publication 

process for the specifications and 

management measures. Historically, the 

Council has developed annual 

specifications and management 

measures in a public two-meeting 

process (formerly at its September and 

November meetings) followed by a 

NMFS final action published in the 

Federal Register and made available for 

public comment and correction after the 

effective date of the action. Each year, 

specifications and management 

measures were effective until the 

specifications and management 

measures for the following year are 

published and effective. In 2001, the 

agency was challenged on this process 

in Natural Resources Defense Council, 

Inc. v.Evans, 168 F.Supp. 2d 1149 

(N.D.Cal., 2001) and the Court ordered 

NMFS to provide prior public notice 

and allow public comment on the 

annual specifications.

Amendment 17 was recently adopted 

by the Council, but has not yet been 

submitted for NMFS for approval. 

NMFS must still comply with the 

Court′s Order for a public notice and 

comment period on the 2003 

specifications and management 

measures. The Council had its initial 

meeting regarding these measures in 

June, and finalized its 2003 

specifications and management 

measures recommendations at its 

September 9–13, 2002, meeting in 

Portland, OR. The Council could not act 

earlier in the year because the new 

science upon which the specifications 

and management measures were based 

was not ready until June. For 2003, the 

Council has recommended 

implementing depth-based management 

measures, with large closed areas 

intended to prevent vessels from 

operating in waters where overfished 

species are commonly found. NMFS and 

the Council felt that these management 

changes were significant enough to 

warrant analysis via an environmental 

impact statement (EIS). An EIS is a 

National Environmental Policy Act 

(NEPA) analysis document that requires 

a series of public review and comment 

periods at different document drafting 

stages. Given the complexity of the 

annual specifications and management 

measures package and the need for EISrelated public review periods, NMFS 

did not have enough time to publish a 

proposed rule on the Council’s 

recommendations, receive public 

comments, and implement a final rule 

by January 1, 2003. Thus, NMFS is 

publishing this emergency rule under 

the Magnuson-Stevens Act emergency 

authority at section 305(c), which 

finalizes and makes effective the 

groundfish management measures for 

January 1 through February 28, 2003.

Absent a final rule by January 1, 2003, 

management measures for January and 

February 2003 would revert to those 

that were in place for January-February 

2002. There are several species for 

which reverting to a management 

regime without depth-based closures at 

the beginning of the year could result in 

either exceeding the annual commercial 

OYs or very early attainment of OYs 

during the year. While these 

circumstances could jeopardize 

manager’s ability to keep landings 

within rebuilding targets for some 

species, they could also lead to 

significant foregone revenue from other 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 909

target species whose fisheries might also 

have to be closed prematurely.

NMFS implemented an emergency 

rule on September 10, 2002 (67 FR 

57973, September 13, 2002), that 

opened trawling north of 40°10′ N. lat. 

inshore of 100 fm (183 m) and offshore 

of 250 fm (457 m), while leaving a large 

area closed to protect overfished 

species. Without these depth-based 

management measures, the northern 

trawl fishery would have closed entirely 

for September-December 2002 in order 

to protect darkblotched rockfish, an 

overfished species. NMFS expects that 

failing to implement depth-based 

management measures for JanuaryFebruary 2003 could similarly 

jeopardize fisheries participation later 

in the fishing year.

Specifications and management 

measures proposed for March-December 

2003 in the Proposed Rules section of 

this issue of the Federal Register

combined with this emergency rule are 

intended to protect overfished 

groundfish species while allowing 

harvesters some access to healthy 

groundfish stocks. Specifications and 

management measures proposed for 

2003 in the Proposed Rule section of 

this issue of the Federal Register are 

designed to rebuild overfished stocks 

through constraining direct and 

incidental mortality and areas of fishing 

operation to prevent overfishing, and to 

achieve as much of the OYs as 

practicable for healthier groundfish 

stocks managed under the FMP. That 

proposed rule describes the rationale for 

the 2003 groundfish management 

measures, which include trip, bag and 

size limits, time/area closures, and gearand area-specific regulations, including 

the management measures implemented 

in this emergency rule.

The Council adopted Amendment 17 

during its October 28 - November 1, 

2002, meeting in Foster City, CA. With 

that schedule, NMFS expects to review 

Amendment 17 for final implementation 

in early 2003, which will formalize a 

rulemaking process that will allow 

adequate time for both the Council′s 

recommendations development and 

NEPA process and NMFS notice and 

comment process on specifications and 

management measure packages. These 

anticipated process changes should 

reduce the need for future management 

measure implementation via emergency 

rule.

IV. NMFS Actions

For the reasons stated above, the 

Assistant Administrator for Fisheries, 

NOAA (Assistant Administrator or AA), 

concurs with the Council′s 

recommendations and announces the 

following management actions for 

January 1 through February 28, 2003.

A. General Definitions and Provisions

The following definitions and 

provisions apply to the 2003 

management measures, unless otherwise 

specified in a subsequent Federal 

Register document:

(1) Trip limits. Trip limits are used in 

the commercial fishery to specify the 

amount of fish that may legally be taken 

and retained, possessed, or landed, per 

vessel, per fishing trip, or cumulatively 

per unit of time, or the number of 

landings that may be made from a vessel 

in a given period of time, as follows:

(a) A per-trip limit is the total 

allowable amount of a groundfish 

species or species group, by weight, or 

by percentage of weight of legal fish on 

board, that may be taken and retained, 

possessed, or landed per vessel from a 

single fishing trip.

(b) A daily trip limit is the maximum 

amount that may be taken and retained, 

possessed, or landed per vessel in 24 

consecutive hours, starting at 0001 

hours l.t. Only one landing of 

groundfish may be made in that 24–

hour period. Daily trip limits may not be 

accumulated during multiple day trips.

(c) A weekly trip limit is the 

maximum amount that may be taken 

and retained, possessed, or landed per 

vessel in 7 consecutive days, starting at 

0001 hours l.t. on Sunday and ending at 

2400 hours l.t. on Saturday. Weekly trip 

limits may not be accumulated during 

multiple week trips. If a calendar week 

includes days within two different 

months, a vessel is not entitled to two 

separate weekly limits during that week.

(d) A cumulative trip limit is the 

maximum amount that may be taken 

and retained, possessed, or landed per 

vessel in a specified period of time 

without a limit on the number of 

landings or trips, unless otherwise 

specified. The cumulative trip limit 

periods for limited entry and open 

access fisheries, which start at 0001 

hours l.t. and end at 2400 hours l.t., are 

as follows, unless otherwise specified:

(i) The 2–month periods are: January 

1–February 28, March 1–April 30, May 

1–June 30, July 1–August 31, September 

1–October 31, and, November 1–

December 31.

(ii) One month means the first day 

through the last day of the calendar 

month.

(iii) One week means 7 consecutive 

days, Sunday through Saturday.

(2) Fishing ahead. Unless the fishery 

is closed, a vessel that has landed its 

cumulative or daily limit may continue 

to fish on the limit for the next legal 

period, so long as no fish (including, but 

not limited to, groundfish with no trip 

limits, shrimp, prawns, or other 

nongroundfish species or shellfish) are 

landed (offloaded) until the next legal 

period. As stated at 50 CFR 660.302 (in 

the definition of ‘‘Landing’’), once the 

offloading of any species begins, all fish 

aboard the vessel are counted as part of 

the landing. Fishing ahead is not 

allowed during or before a closed period 

(see paragraph A.(7)). See paragraph 

A.(9) for information on inseason 

changes to limits.

(3) Weights. All weights are round 

weights or round-weight equivalents 

unless otherwise specified.

(4) Percentages. Percentages are based 

on round weights, and, unless otherwise 

specified, apply only to legal fish on 

board.

(5) Legal fish. ‘‘Legal fish’’ means fish 

legally taken and retained, possessed, or 

landed in accordance with the 

provisions of 50 CFR part 660, the 

Magnuson-Stevens Act, any document 

issued under part 660, and any other 

regulation promulgated or permit issued 

under the Magnuson-Stevens Act.

(6) Size limits and length 

measurement. Unless otherwise 

specified, size limits in the commercial 

and recreational groundfish fisheries 

apply to the ‘‘total length,’’ which is the 

longest measurement of the fish without 

mutilation of the fish or the use of force 

to extend the length of the fish. No fish 

with a size limit may be retained if it is 

in such condition that its length has 

been extended or cannot be determined 

by these methods. For conversions not 

listed here, contact the state where the 

fish will be landed.

(a) Whole fish. For a whole fish, total 

length is measured from the tip of the 

snout (mouth closed) to the tip of the 

tail in a natural, relaxed position.

(b) ‘‘Headed’’ fish. For a fish with the 

head removed (‘‘headed’’), the length is 

measured from the origin of the first 

dorsal fin (where the front dorsal fin 

meets the dorsal surface of the body 

closest to the head) to the tip of the 

upper lobe of the tail; the dorsal fin and 

tail must be left intact.

(c) Filets. A filet is the flesh from one 

side of a fish extending from the head 

to the tail, which has been removed 

from the body (head, tail, and backbone) 

in a single continuous piece. Filet 

lengths may be subject to size limits for 

some groundfish taken in the 

recreational fishery off California (see 

paragraph D.(1)). A filet is measured 

along the length of the longest part of 

the filet in a relaxed position; stretching 

or otherwise manipulating the filet to 

increase its length is not permitted.

(d) Sablefish weight limit conversions.

The following conversions apply to both 

910 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

the limited entry and open access 

fisheries when trip limits are effective 

for those fisheries. For headed and 

gutted (eviscerated) sablefish:

(i) The minimum size for headed 

sablefish, which corresponds to 20 

inches (51 cm) tl for whole fish, is 14 

inches (36 cm).

(ii) The conversion factor established 

by the state where the fish is or will be 

landed will be used to convert the 

processed weight to round weight for 

purposes of applying the trip limit. (The 

conversion factor currently is 1.6 in 

Washington, Oregon, and California. 

However, the state conversion factors 

may differ; fishers should contact 

fishery enforcement officials in the State 

where the fish will be landed to 

determine that State′s official 

conversion factor.)

(e) Lingcod size and weight 

conversions. The following conversions 

apply in both limited entry and open 

access fisheries.

(i) Size conversion. For lingcod with 

the head removed, the minimum size 

limit is 19.5 inches (49.5 cm), which 

corresponds to 24 inches (61 cm) total 

length for whole fish.

(ii) Weight conversion. The 

conversion factor established by the 

state where the fish is or will be landed 

will be used to convert the processed 

weight to round weight for purposes of 

applying the trip limit. (The states′

conversion factors may differ, and 

fishers should contact fishery 

enforcement officials in the state where 

the fish will be landed to determine that 

state′s official conversion factor.) If a 

state does not have a conversion factor 

for headed and gutted lingcod, or 

lingcod that is only gutted; the 

following conversion factors will be 

used. To determine the round weight, 

multiply the processed weight times the 

conversion factor.

(A) Headed and gutted. The 

conversion factor for headed and gutted 

lingcod is 1.5.

(B) Gutted, with the head on. The 

conversion factor for lingcod that has 

only been gutted is 1.1.

(7) Closure. ‘‘Closure,’’ when referring 

to closure of a fishery, means that taking 

and retaining, possessing, or landing the 

particular species or species group is 

prohibited. (See 50 CFR 660.302.) 

Unless otherwise announced in the 

Federal Register, offloading must begin 

before the time the fishery closes. The 

provisions at paragraph A.(2) for fishing 

ahead do not apply during a closed 

period. It is unlawful to transit through 

a closed area with the prohibited 

species on board, no matter where that 

species was caught, except as provided 

for in the CCA at A.(19).

(8) Fishery management area. The 

fishery management area for these 

species is the EEZ off the coasts of 

Washington, Oregon, and California 

between 3 and 200 nm offshore, 

bounded on the north by the Provisional 

International Boundary between the 

United States and Canada, and bounded 

on the south by the International 

Boundary between the United States 

and Mexico. All groundfish possessed 

between 0–200 nm offshore or landed in 

Washington, Oregon, or California are 

presumed to have been taken and 

retained from the EEZ, unless otherwise 

demonstrated by the person in 

possession of those fish.

(9) Routine management measures.

Most trip, bag, and size limits, and area 

closures in the groundfish fishery have 

been designated ‘‘routine,’’ which 

means they may be changed rapidly 

after a single Council meeting. (See 50 

CFR 660.323(b)). Council meetings in 

2002 will be held in the months of 

March, April, June, September, and 

November. Inseason changes to routine 

management measures are announced in 

the Federal Register. Information 

concerning changes to routine 

management measures is available from 

the NMFS Northwest and Southwest 

Regional Offices (see ADDRESSES). 

Changes to trip limits are effective at the 

times stated in the Federal Register. 

Once a change is effective, it is illegal 

to take and retain, possess, or land more 

fish than allowed under the new trip 

limit. This means that, unless otherwise 

announced in the Federal Register, 

offloading must begin before the time a 

fishery closes or a more restrictive trip 

limit takes effect.

(10) Limited entry limits. It is 

unlawful for any person to take and 

retain, possess, or land groundfish in 

excess of the landing limit for the open 

access fishery without having a valid 

limited entry permit for the vessel 

affixed with a gear endorsement for the 

gear used to catch the fish (50 CFR 

660.306(p)).

(11) Operating in both limited entry 

and open access fisheries. The open 

access trip limit applies to any fishing 

conducted with open access gear, even 

if the vessel has a valid limited entry 

permit with an endorsement for another 

type of gear. A vessel that operates in 

both the open access and limited entry 

fisheries is not entitled to two separate 

trip limits for the same species. If a 

vessel has a limited entry permit and 

uses open access gear, but the open 

access limit is smaller than the limited 

entry limit, the open access limit cannot 

be exceeded and counts toward the 

limited entry limit. If a vessel has a 

limited entry permit and uses open 

access gear, but the open access limit is 

larger than the limited entry limit, the 

smaller limited entry limit applies, even 

if taken entirely with open access gear.

(12) Operating in areas with different 

trip limits. Trip limits for a species or 

a species group may differ in different 

geographic areas along the coast. The 

following ‘‘crossover’’ provisions apply 

to vessels operating in different 

geographical areas that have different 

cumulative or ‘‘per trip’’ trip limits for 

the same species or species group. Such 

crossover provisions do not apply to 

species that are subject only to daily trip 

limits, or to the trip limits for black 

rockfish off Washington (see 50 CFR 

660.323(a)(1)). In 2003, the cumulative 

trip limit periods for the limited entry 

and open access fisheries are specified 

in paragraph A(1)(d), but may be 

changed during the year if announced in 

the Federal Register.

(a) Going from a more restrictive to a 

more liberal area. If a vessel takes and 

retains any groundfish species or 

species group of groundfish in an area 

where a more restrictive trip limit 

applies before fishing in an area where 

a more liberal trip limit (or no trip limit) 

applies, then that vessel is subject to the 

more restrictive trip limit for the entire 

period to which that trip limit applies, 

no matter where the fish are taken and 

retained, possessed, or landed.

(b) Going from a more liberal to a 

more restrictive area. If a vessel takes 

and retains a groundfish species or 

species group in an area where a higher 

trip limit or no trip limit applies, and 

takes and retains, possesses or lands the 

same species or species group in an area 

where a more restrictive trip limit 

applies, that vessel is subject to the 

more restrictive trip limit for the entire 

period to which that trip limit applies, 

no matter where the fish are taken and 

retained, possessed, or landed.

(c) Operating in two different areas 

where a species or species group is 

managed with different types of trip 

limits. During the fishing year, NMFS 

may implement management measures 

for a species or species group that set 

different types of trip limits (for 

example, per trip limits versus 

cumulative trip limits) for different 

areas. If a vessel fishes for a species or 

species group that is managed with 

different types of trip limits in two 

different areas within the same 

cumulative limit period, then that vessel 

is subject to the most restrictive overall 

cumulative limit for that species, 

regardless of where fishing occurs.

(d) Minor rockfish. Several rockfish 

species are designated with speciesspecific limits on one side of the 40°10′

N. lat. management line, and are 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 911

included as part of a minor rockfish 

complex on the other side of the line.

(i) If a vessel takes and retains minor 

slope rockfish north of 38° N. lat., that 

vessel is also permitted to take and 

retain, possess or land splitnose rockfish 

up to its cumulative limit south of 38°

N. lat., even if splitnose rockfish were 

a part of the landings from minor slope 

rockfish taken and retained north of 38°

N. lat. [Note: A vessel that takes and 

retains minor slope rockfish on both 

sides of the management line in a single 

cumulative limit period is subject to the 

more restrictive cumulative limit for 

minor slope rockfish during that 

period.]

(ii) If a vessel takes and retains minor 

slope rockfish south of 38° N. lat., that 

vessel is also permitted to take and 

retain, possess or land Pacific ocean 

perch (POP) up to its cumulative limit 

north of 38° N. lat., even if POP were 

a part of the landings from minor slope 

rockfish taken and retained south of 38°

N. lat. [Note: A vessel that takes and 

retains minor slope rockfish on both 

sides of the management line in a single 

cumulative limit period is subject to the 

more restrictive cumulative limit for 

minor slope rockfish during that 

period.]

(iii) If a vessel takes and retains minor 

shelf rockfish south of 40°10′ N. lat., 

that vessel is also permitted to take and 

retain, possess, or land yellowtail 

rockfish up to its cumulative limits 

north of 40°10′ N. lat., even if yellowtail 

rockfish is part of the landings from 

minor shelf rockfish taken and retained 

south of 40°10′ N. lat. Widow rockfish 

is included in overall shelf rockfish 

limits for all gear groups. [Note: A vessel 

that takes and retains minor shelf 

rockfish on both sides of the 

management line in a single cumulative 

limit period is subject to the more 

restrictive cumulative limit for minor 

shelf rockfish during that period.]

(e) ‘‘DTS complex.’’ For 2003, there 

are differential trip limits for the ‘‘DTS 

complex’’ (Dover sole, shortspine 

thornyhead, longspine thornyhead, 

sablefish) north and south of the 

management line at 40°10′ N. lat. 

Vessels operating in the limited entry 

trawl fishery are subject to the crossover 

provisions in this paragraph A.(12) 

when making landings that include any 

one of the four species in the ‘‘DTS 

complex.’’

(f) Flatfish complex. For 2003, there 

are differential trip limits for the flatfish 

complex (butter, curlfin, English, 

flathead, petrale, rex, rock, and sand 

soles, Pacific sanddab, and starry 

flounder) north and south of the 

management line at 40°10′ N. lat. 

Vessels operating in the limited entry 

trawl fishery are subject to the crossover 

provisions in this paragraph A.(12) 

when making landings that include any 

one of the species in the flatfish 

complex.

(13) Sorting. It is unlawful for any 

person to ‘‘fail to sort, prior to the first 

weighing after offloading, those 

groundfish species or species groups for 

which there is a trip limit, size limit, 

quota, or commercial OY, if the vessel 

fished or landed in an area during a 

time when such trip limit, size limit, 

commercial optimum yield, or quota 

applied.’’ This provision applies to both 

the limited entry and open access 

fisheries (see 50 CFR 660.306(h).) The 

following species must be sorted in 

2003:

(a) For vessels with a limited entry 

permit:

(i) Coastwide widow rockfish, canary 

rockfish, darkblotched rockfish, 

yelloweye rockfish, shortbelly rockfish, 

minor nearshore rockfish, minor shelf 

rockfish, minor slope rockfish, 

shortspine and longspine thornyhead, 

Dover sole, arrowtooth flounder, rex 

sole, petrale sole, arrowtooth flounder, 

other flatfish, lingcod, sablefish, and 

Pacific whiting [Note: Although both 

yelloweye and darkblotched rockfish are 

considered minor rockfish managed 

under the minor shelf and minor slope 

rockfish complexes, respectively, they 

have separate OYs and therefore must 

be sorted by species.]

(ii) North of 40°10′ N. lat.- POP, 

yellowtail rockfish, and, for fixed gear, 

black rockfish and blue rockfish;

(iii) South of 40°10′ N. lat.- minor 

shallow nearshore rockfish, minor 

deeper nearshore rockfish, chilipepper 

rockfish, bocaccio rockfish, splitnose 

rockfish, and Pacific sanddabs.

(b) For open access vessels (vessels 

without a limited entry

permit):

(i) Coastwide-widow rockfish, canary 

rockfish, darkblotched rockfish, 

yelloweye rockfish, minor nearshore 

rockfish, minor shelf rockfish, minor 

slope rockfish, Dover sole, arrowtooth 

flounder, petrale sole, rex sole, other 

flatfish, lingcod, sablefish, Pacific 

whiting, and Pacific sanddabs;

(ii) North of 40°10′ N. lat.- black 

rockfish, blue rockfish, POP, yellowtail 

rockfish;

(iii) South of 40°10′ N. lat.- minor 

shallow nearshore rockfish, minor 

deeper nearshore rockfish, chilipepper 

rockfish, bocaccio rockfish, splitnose 

rockfish;

(iv) South of Point Conception--

thornyheads.

(14) Limited Entry Trawl Gear 

Restrictions. Limited entry trip limits 

may vary depending on the type of trawl 

gear that is on board a vessel during a 

fishing trip: large footrope, small 

footrope, or midwater trawl gear. No 

more than one type of trawl gear may be 

on board during any single fishing trip.

(a) Types of trawl gear—Large 

footrope, small footrope, and midwater 

or pelagic trawl gears are defined at 50 

CFR 660.302 and 660.322(b).

(b) Cumulative trip limits and 

prohibitions by trawl gear type—(i) 

Large footrope trawl. If Table 3 does not 

provide a large footrope trawl 

cumulative or trip limit for a particular 

species or species group, it is unlawful 

to take and retain, possess or land that 

species or species group if large footrope 

gear is on board. It is unlawful for any 

vessel using large footrope gear to 

exceed large footrope gear limits for any 

species or to use large footrope gear to 

exceed small footrope gear or midwater 

trawl gear limits for any species. It is 

unlawful for any vessel using large 

footrope gear or that has large footrope 

trawl gear on board to fish for 

groundfish shoreward of the Rockfish 

Conservation Areas (RCAs) defined at 

paragraph (19) of this section. The 

presence of rollers or bobbins larger 

than 8 inches (20 cm) in diameter on 

board the vessel, even if not attached to 

a trawl, will be considered to mean a 

large footrope trawl is on board.

(ii) Small footrope or midwater trawl 

gear. Cumulative trip limits for canary 

rockfish, chilipepper rockfish, widow 

rockfish, yellowtail rockfish, bocaccio, 

minor shelf rockfish, minor nearshore 

rockfish, and lingcod, as indicated in 

Table 3 under NMFS Actions, are 

allowed only if small footrope gear or 

midwater trawl gear is used, and if that 

gear meets the specifications in 

paragraphs A.(14).

(iii) Midwater trawl gear. Higher 

yellowtail and widow rockfish 

cumulative trip limits are available for 

limited entry vessels using midwater 

trawl gear. Each landing that contains 

yellowtail or widow rockfish is 

attributed to the gear on board with the 

most restrictive trip limit for those 

species. Landings attributed to small 

footrope trawl must not exceed the 

small footrope limit, and landings 

attributed to midwater trawl must not 

exceed the midwater trawl limit. If a 

vessel has landings attributed to both 

types of trawls during a cumulative trip 

limit period, all landings are counted 

toward the most restrictive gear-specific 

cumulative limit.

(iv) More than one type of trawl gear 

on board; trawl gear and non-trawl gear 

on board. The cumulative trip limits in 

Table 3 of Section IV must not be 

exceeded. For the first time in 2003, it 

is prohibited to have more than one type 

912 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

of trawl gear on board. It is prohibited 

to have more than one type of limited 

entry trawl gear on board and it is 

prohibited to have both limited entry 

trawl gear and exempted trawl gear on 

board. It is also prohibited to have both 

trawl gear and non-trawl (limited entry 

or open access) gear on board at the 

same time.

(c) State landing receipts.

Washington, Oregon, and California will 

require the type of trawl gear on board 

to be recorded on the State landing 

receipt(s) for each trip or on an 

attachment to the State landing receipt.

(d) Gear inspection. All trawl gear and 

trawl gear components, including 

unattached rollers or bobbins, must be 

readily accessible and made available 

for inspection at the request of an 

authorized officer. No trawl gear may be 

removed from the vessel prior to 

offloading. All footropes shall be 

uncovered and clearly visible except 

when in use for fishing.

(15) Platooning—limited entry trawl 

vessels. Limited entry trawl vessels are 

automatically in the ‘‘A’’ platoon, unless 

the ‘‘B’’ platoon is indicated on the 

limited entry permit. If a vessel is in the 

‘‘A’’ platoon, its cumulative trip limit 

periods begin and end on the beginning 

and end of a calendar month as in the 

past. No more than one trawl permit 

may be registered to a vessel unless a 

permit is endorsed for both trawl and 

either longline or pot gear and is being 

stacked under § 660.335(c) for use in the 

limited entry fixed gear primary 

sablefish fishery. If a vessel is registered 

for use with more than one permit with 

a trawl endorsement through the fixed 

gear permit stacking program, then the 

vessel owner must designate one trawlendorsed permit as his base trawl 

permit and may only fish in the platoon 

associated with that base trawl permit. 

If a limited entry trawl permit is 

authorized for the ‘‘B’’ platoon, then 

cumulative trip limit periods will begin 

on the 16th of the month (generally 2 

weeks later than for the ‘‘A’’ platoon), 

unless otherwise specified.

(a) For a vessel in the ‘‘B’’ platoon, 

cumulative trip limit periods begin on 

the 16th of the month at 0001 hours, l.t., 

and end at 2400 hours, l.t., on the 15th 

of the month. Therefore, the 

management measures announced 

herein that are effective on January 1, 

2003, for the ‘‘A’’ platoon will be 

effective on January 16, 2003, for the 

‘‘B’’ platoon. The effective date of any 

inseason changes to the cumulative trip 

limits also will be delayed for 2 weeks 

for the ‘‘B’’ platoon, unless otherwise 

specified.

(b) A vessel authorized to operate in 

the ‘‘B’’ platoon may take and retain, but 

may not land, groundfish from January 

1, 2003, through January 15, 2003.

(c) A vessel authorized to operate in 

the ‘‘B’’ platoon will have the same 

cumulative trip limits for the November 

16, 2003, through December 31, 2003, 

period as a vessel operating in the ‘‘A’’

platoon has for the November 1, 2002, 

through December 31, 2002 period.

(16) Permit transfers. Limited entry 

permit transfers are to take effect no 

earlier than the first day of a major 

cumulative limit period following the 

day NMFS receives the transfer form 

and original permit (50 CFR 

660.335(e)(3)). Those days in 2003 are 

January 1, March 1, May 1, July 1, 

September 1, and November 1, and are 

delayed by 15 days (starting on the 16th 

of a month) for the ‘‘B’’ platoon.

(17) Exempted fisheries. U.S. vessels 

operating under an exempted fishing 

permit (EFP) issued under 50 CFR part 

600 are also subject to these restrictions, 

unless otherwise provided in the 

permit. EFPs may include the collecting 

of scientific samples of groundfish 

species that would otherwise be 

prohibited for retention.

(18) Application of requirements.

Paragraphs B. and C. pertain to the 

commercial groundfish fishery, but not 

to Washington coastal tribal fisheries, 

which are described in Section V. The 

provisions in paragraphs B. and C. that 

are not covered under the headings 

‘‘limited entry’’ or ‘‘open access’’ apply 

to all vessels in the commercial fishery 

that take and retain groundfish, unless 

otherwise stated. Paragraph D. pertains 

to the recreational fishery.

(19) Rockfish Conservation Areas. For 

2003, the Council has introduced 

several RCAs and a Yelloweye Rockfish 

Conservation Area (YRCA) and has 

retained the Cowcod Conservation Area 

(CCAs) used in 2001 and 2002. 

Collectively, any geographically defined 

area where specific fishing activities are 

prohibited (closed) or otherwise 

restricted intended to protect a 

particular groundfish species or species 

group or intended to protect a complex 

of species is referred to as a Groundfish 

Conservation Area. The YRCA, the 

CCAs, and the larger depth-based RCAs 

are Groundfish Conservation Areas. 

Larger RCAs intended to protect a 

complex of species, such as overfished 

shelf rockfish species, have boundaries 

defined by a series of coordinates 

intended to approximate particular 

depth contours, such as 100 fm (183 m), 

150 fm (274 m), 250 fm (457,) etc. 

Different gear types or fishing sectors 

may have RCAs with differing 

boundaries.

(a) Yelloweye Rockfish Conservation 

Area. Recreational fishing for 

groundfish is prohibited within the 

YRCA. It is unlawful for recreational 

fishing vessels to take, retain, possess, 

or land groundfish inside the YRCA. 

The YRCA is a C-shaped area off the 

northern Washington coast that is 

bound by straight lines connecting all of 

the following points in the order listed:

48°00′ N. lat.; 124°59′ W. long.;

48°00′ N. lat.; 125°18′ W. long.;

48°04′ N. lat.; 124°59′ W. long.;

48°04′ N. lat.; 125°18′ W. long.;

48°04′ N. lat.; 125°11′ W. long.;

48°04′ N. lat.; 125°18′ W. long.;

48°18′ N. lat.; 125°11′ W. long.;

48°18′ N. lat.; 125°18′ W. long.;

and connecting back to 48°00′ N. lat.; 

124°59′ W. long.

(b) Cowcod Conservation Areas. The 

coordinates of the Cowcod Conservation 

Areas (CCAs) are defined at 

§ 660.304(c). Recreational and 

commercial fishing for groundfish is 

prohibited within the CCAs, except that 

recreational and commercial fishing for 

rockfish and lingcod is permitted in 

waters inside 20 fathoms (36.9 m). It is 

unlawful to take and retain, possess, or 

land groundfish inside the CCAs, except 

for rockfish and lingcod taken in waters 

inside the 20–fathom (36.9 m) depth 

contour, when those waters are open to 

fishing. Commercial fishing vessels may 

transit through the Western CCA with 

their gear stowed and groundfish on 

board only in a corridor through the 

Western CCA bounded on the north by 

the latitude line at 33°00′30’’ N. lat., and 

bounded on the south by the latitude 

line at 32°59′30’’ N. lat.

(c) Limited entry trawl groundfish 

coastwide and open access exempted 

trawl south of 40°10′ N. lat. 

Conservation Area.

(i) The trawl RCA is closed to limited 

entry groundfish trawl fishing coastwide 

and to open access exempted trawl 

fishing (except for pink shrimp 

trawling) south of 40°10′ N. lat. Fishing 

with limited entry groundfish trawl gear 

is prohibited within the trawl RCA 

north of 40°10′ N. lat. and fishing with 

any trawl gear is prohibited within the 

trawl RCA south of 40°10′ N. lat., unless 

that vessel is trawling for pink shrimp. 

Coastwide, it is unlawful to take and 

retain, possess, or land groundfish taken 

with limited entry groundfish trawl gear 

in the trawl RCA. South of 40°10′ N. lat., 

it is unlawful to take and retain, 

possess, or land any species of fish 

taken with any type of trawl gear in the 

trawl RCA. Trawl vessels may transit 

through the trawl RCA, with or without 

groundfish on board, provided all 

groundfish trawl gear is stowed either: 

(1) below deck; or (2) if the gear cannot 

readily be moved, in a secured and 

covered manner, detached from all 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 913

towing lines, so that it is rendered 

unusable for fishing; or (3) remaining on 

deck uncovered if the trawl doors are 

hung from their stanchions and the net 

is disconnected from the doors. These 

restrictions do not apply to vessels 

fishing with midwater trawl gear for 

Pacific whiting during the primary 

whiting season or taking and retaining 

yellowtail rockfish or widow rockfish in 

association with Pacific whiting during 

the primary whiting season caught with 

midwater trawl gear or to taking and 

retaining yellowtail or widow rockfish 

with midwater trawl gear when midwater gear trip limits are authorized for 

those species (November-December 

2003.) If a vessel fishes in an RCA, it 

may not participate in any fishing on 

that trip that is inconsistent with the 

restrictions that apply within the RCA. 

For example, if a vessel participates in 

the pink shrimp fishery within the RCA, 

the vessel cannot on the same trip 

participate in the DTS fishery outside of 

the RCA. Nothing in these Federal 

regulations supercede any State 

regulations that may prohibit trawling 

shoreward of the 3 nm State waters 

boundary line.

(ii) Between the U.S. border with 

Canada and 40°10′ N. lat., the trawl RCA 

is defined along an eastern, inshore 

boundary approximating 100 fm (183 m) 

in January through June and October 

through December, and approximating 

75 fm (137 m) in July and August. 

Between 40°10′ N. lat. and 34°27′ N. lat., 

the trawl RCA is defined along an 

eastern, inshore boundary 

approximating 50 fm (91 m) in January 

and February and 60 fm (110 m) in 

March through December. Between 

34°27′ N. lat. and the U.S. border with 

Mexico, along the mainland coast of 

California, the trawl RCA is defined 

along an eastern, inshore boundary 

approximating 100 fm (183 m) 

throughout the year. Between 34°27′ N. 

lat. and the U.S. border with Mexico, 

adjacent to the islands offshore of 

California, the trawl RCA is defined 

along an inshore boundary 

approximating 20 fm (37 m) throughout 

the year. Boundary coordinates are 

provided below at paragraph (e) of this 

section.

(iii) Between the U.S. border with 

Canada and 38° N. lat., the trawl RCA 

is defined along a western, offshore 

boundary approximating 250 fm (457 m) 

in March through October, and 

approximating 250 fm (457 m) with 

some modifications to provide open 

areas to allow winter petrale sole fishing 

in January, February, November, and 

December. Between 38° N. lat. and the 

U.S. border with Mexico, the trawl RCA 

is defined along a western, offshore 

boundary approximating 150 fm (274 m) 

throughout the year. Boundary 

coordinates are provided below at 

paragraph (e) of this section.

(d) Non-trawl (limited entry fixed gear 

and open access nontrawl gears) 

Groundfish Conservation Area.

(i) The non-trawl RCA is closed to 

non-trawl gear (limited entry or open 

access longline and pot or trap, open 

access hook-and-line, pot or trap, 

gillnet, set net, trammel net and spear) 

fishing for groundfish. Fishing with 

non-trawl gear is prohibited within the 

non-trawl gear RCA. It is unlawful to 

take and retain, possess, or land 

groundfish taken with non-trawl gear in 

the non-trawl gear RCA. Limited entry 

fixed gear and open access non-trawl 

gear vessels may transit through the 

non-trawl gear RCA, with or without 

groundfish on board. These restrictions 

do not apply to vessels fishing for 

species other than groundfish with nontrawl gear. If a vessel fishes in an RCA, 

it may not participate in any fishing on 

that trip that is inconsistent with the 

restrictions that apply within the RCA. 

For example, if a vessel participates in 

the salmon troll fishery within the RCA, 

the vessel cannot on the same trip 

participate in the sablefish fishery 

outside of the RCA.

(ii) Between the U.S. border with 

Canada and 46°16′ N. lat., the non-trawl 

gear RCA extends to the shoreline. 

Between 46°16′ N. lat. and 40°10′ N. lat., 

the non-trawl gear RCA is defined along 

an eastern, inshore boundary 

approximating 27 fm (49 m) throughout 

the year. Between 40°10′ N. lat. and the 

U.S. border with Mexico, the non-trawl 

gear RCA is defined along an eastern, 

inshore boundary approximating 20 fm 

(37 m) throughout the year, except as 

provided for between Point Fermin 

(33°41′ N. lat.; 118°18′ W. long.) and the 

Newport South Jetty (33°36′ N .lat.; 117°

51′ W. long.) Between a line drawn due 

south from Point Fermin, CA (33°41′ N. 

lat.; 118°18′ W. long.) and a line drawn 

due west from the Newport South Jetty 

(33°36′ N .lat.; 117° 51′ W. long.,) 

vessels fishing with hook-and-line and/

or trap (or pot) gear may operate from 

shore to a boundary line approximating 

50 fm (91 m) in the months of July and 

August. Boundary coordinates are 

provided below at paragraph (e) of this 

section.

(iii) Between the U.S. border with 

Canada and 40°10′ N. lat., the non-trawl 

gear RCA is defined along a western, 

offshore boundary approximating 100 

fm (183 m) throughout the year. 

Between 40°10′ N. lat. and the U.S. 

border with Mexico, the trawl RCA is 

defined along a western, offshore 

boundary approximating 150 fm (274 m) 

throughout the year. Boundary 

coordinates are provided below at 

paragraph (e) of this section.

(e) RCA Boundary Coordinates.

Coordinates for the specific boundaries 

that approximate the depth contours 

selected for both trawl and non-trawl 

gear RCAs are provided here.

(i) The 27–fm (49–m) depth contour 

used between 46°16′ N. lat. and 40°10′

N. lat. as an eastern boundary for the 

non-trawl RCA is defined by straight 

lines connecting all of the following 

points in the order stated:

(1) 46°16.00′ N. lat., 124°12.39′ W. 

long.;

(2) 46°14.85′ N. lat., 124°12.39′ W. 

long.;

(3) 46°3.95′ N. lat., 124°3.64′ W. long.;

(4) 45°43.14′ N. lat., 124°0.17′ W. 

long.;

(5) 45°23.33′ N. lat., 124°1.99′ W. 

long.;

(6) 45°9.54′ N. lat., 124°1.65′ W. long.;

(7) 44°39.99′ N. lat., 124°8.67′ W. 

long.;

(8) 44°20.86′ N. lat., 124°10.31′ W. 

long.;

(9) 43°37.11′ N. lat., 124°14.91′ W. 

long.;

(10) 43°27.54′ N. lat., 124°18.98′ W. 

long.;

(11) 43°20.68′ N. lat., 124°25.53′ W. 

long.;

(12) 43°15.08′ N. lat., 124°27.17′ W. 

long.;

(13) 43°6.89′ N. lat., 124°29.65′ W. 

long.;

(14) 43°1.02′ N. lat., 124°29.70′ W. 

long.;

(15) 42°52.67′ N. lat., 124°36.10′ W. 

long.;

(16) 42°45.96′ N. lat., 124°37.95′ W. 

long.;

(17) 42°45.80′ N. lat., 124°35.41′ W. 

long.;

(18) 42°38.46′ N. lat., 124°27.49′ W. 

long.;

(19) 42°35.29′ N. lat., 124°26.85′ W. 

long.;

(20) 42°31.49′ N. lat., 124°31.40′ W. 

long.;

(21) 42°29.06′ N. lat., 124°32.24′ W. 

long.;

(22) 42°14.26′ N. lat., 124°26.27′ W. 

long.;

(23) 42°4.86′ N. lat., 124°21.94′ W. 

long.;

(24) 42°0.10′ N. lat., 124°20.99′ W. 

long.;

(25) 42°0.00′ N. lat., 124°21.03′ W. 

long.;

(26) 41°56.33′ N. lat., 124°20.34′ W. 

long.;

(27) 41°50.93′ N. lat., 124°23.74′ W. 

long.;

(28) 41°41.83′ N. lat., 124°16.99′ W. 

long.;

(29) 41°35.48′ N. lat., 124°16.35′ W. 

long.;

914 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(30) 41°23.51′ N. lat., 124°10.48′ W. 

long.;

(31) 41°4.62′ N. lat., 124°14.44′ W. 

long.;

(32) 40°54.28′ N. lat., 124°13.90′ W. 

long.;

(33) 40°40.37′ N. lat., 124°26.21′ W. 

long.;

(34) 40°34.03′ N. lat., 124°27.36′ W. 

long.;

(35) 40°28.88′ N. lat., 124°32.41′ W. 

long.;

(36) 40°24.82′ N. lat., 124°29.56′ W. 

long.;

(37) 40°22.64′ N. lat., 124°24.05′ W. 

long.;

(38) 40°18.67′ N. lat., 124°21.90′ W. 

long.;

(39) 40°14.23′ N. lat., 124°23.72′ W. 

long.; and

(40) 40°10.00′ N. lat., 124°17.22′ W. 

long.;

(ii) The 75–fm (137–m) depth contour 

used north of 40°10′ N. lat. as an eastern 

boundary for the trawl RCA in the 

months of July and August is defined by 

straight lines connecting all of the 

following points in the order stated:

(1) 48°14.58′ N. lat., 125°42.47′ W. 

long.;

(2) 48°20.26′ N. lat., 125°23.03′ W. 

long.;

(3) 48°23.00′ N. lat., 124°50.00′ W. 

long.;

(4) 48°17.10′ N. lat., 124°54.82′ W. 

long.;

(5) 48°05.10′ N. lat., 124°59.40′ W. 

long.;

(6) 48°04.98′ N. lat., 125°10.02′ W. 

long.;

(7) 47°54.00′ N. lat., 125°04.98′ W. 

long.;

(8) 47°44.52′ N. lat., 125°00.00′ W. 

long.;

(9) 47°42.00′ N. lat., 124°58.98′ W. 

long.;

(10) 47°35.52′ N. lat., 124°55.50′ W. 

long.;

(11) 47°22.02′ N. lat., 124°44.40′ W. 

long.;

(12) 47°16.98′ N. lat., 124°45.48′ W. 

long.;

(13) 47°10.98′ N. lat., 124°48.48′ W. 

long.;

(14) 47°04.98′ N. lat., 124°49.02′ W. 

long.;

(15) 46°57.98′ N. lat., 124°46.50′ W. 

long.;

(16) 46°54.00′ N. lat., 124°45.00′ W. 

long.;

(17) 46°48.48′ N. lat., 124°44.52′ W. 

long.;

(18) 46°40.02′ N. lat., 124°36.00′ W. 

long.;

(19) 46°34.09′ N. lat., 124°27.03′ W. 

long.;

(20) 46°24.64′ N. lat., 124°30.33′ W. 

long.;

(21) 46°19.98′ N. lat., 124°36.00′ W. 

long.;

(22) 46°18.14′ N. lat., 124°34.26′ W. 

long.;

(23) 46°18.72′ N. lat., 124°22.68′ W. 

long.;

(24) 46°14.64′ N. lat., 124°22.54′ W. 

long.;

(25) 46°11.08′ N. lat., 124°30.74′ W. 

long.;

(26) 46°4.28′ N. lat., 124°31.49′ W. 

long.;

(27) 45°55.97′ N. lat., 124°19.95′ W. 

long.;

(28) 45°44.97′ N. lat., 124°15.96′ W. 

long.;

(29) 45°43.14′ N. lat., 124°21.86′ W. 

long.;

(30) 45°34.44′ N. lat., 124°14.44′ W. 

long.;

(31) 45°15.49′ N. lat., 124°11.49′ W. 

long.;

(32) 44°57.31′ N. lat., 124°15.03′ W. 

long.;

(33) 44°43.90′ N. lat., 124°28.88′ W. 

long.;

(34) 44°28.64′ N. lat., 124°35.67′ W. 

long.;

(35) 44°25.31′ N. lat., 124°43.08′ W. 

long.;

(36) 44°17.15′ N. lat., 124°47.98′ W. 

long.;

(37) 44°13.67′ N. lat., 124°54.41′ W. 

long.;

(38) 43°56.85′ N. lat., 124°55.32′ W. 

long.;

(39) 43°57.50′ N. lat., 124°41.23′ W. 

long.;

(40) 44°1.79′ N. lat., 124°38.00′ W. 

long.;

(41) 44°2.16′ N. lat., 124°32.62′ W. 

long.;

(42) 43°58.15′ N. lat., 124°30.39′ W. 

long.;

(43) 43°53.25′ N. lat., 124°31.39′ W. 

long.;

(44) 43°35.56′ N. lat., 124°28.17′ W. 

long.;

(45) 43°21.84′ N. lat., 124°36.07′ W. 

long.;

(46) 43°19.73′ N. lat., 124°34.86′ W. 

long.;

(47) 43°9.38′ N. lat., 124°39.30′ W. 

long.;

(48) 43°7.11′ N. lat., 124°37.66′ W. 

long.;

(49) 42°56.27′ N. lat., 124°43.29′ W. 

long.;

(50) 42°45.00′ N. lat., 124°41.50′ W. 

long.;

(51) 42°39.72′ N. lat., 124°39.11′ W. 

long.;

(52) 42°32.88′ N. lat., 124°40.13′ W. 

long.;

(53) 42°32.30′ N. lat., 124°39.04′ W. 

long.;

(54) 42°26.96′ N. lat., 124°44.31′ W. 

long.;

(55) 42°24.11′ N. lat., 124°42.16′ W. 

long.;

(56) 42°21.10′ N. lat., 124°35.46′ W. 

long.;

(57) 42°14.72′ N. lat., 124°32.30′ W. 

long.;

(58) 42°9.24′ N. lat., 124°32.04′ W. 

long.;

(59) 42°1.89′ N. lat., 124°32.70′ W. 

long.;

(60) 42°0.03′ N. lat., 124°32.02′ W. 

long.;

(61) 42°0.00′ N. lat., 124°32.02′ W. 

long.;

(62) 41°46.18′ N. lat., 124°26.60′ W. 

long.;

(63) 41°29.22′ N. lat., 124°28.04′ W. 

long.;

(64) 41°9.62′ N. lat., 124°19.75′ W. 

long.;

(65) 40°50.71′ N. lat., 124°23.80′ W. 

long.;

(66) 40°43.35′ N. lat., 124°29.30′ W. 

long.;

(67) 40°40.24′ N. lat., 124°29.86′ W. 

long.;

(68) 40°37.50′ N. lat., 124°28.68′ W. 

long.;

(69) 40°34.42′ N. lat., 124°29.65′ W. 

long.;

(70) 40°34.74′ N. lat., 124°34.61′ W. 

long.;

(71) 40°31.70′ N. lat., 124°37.13′ W. 

long.;

(72) 40°25.03′ N. lat., 124°34.77′ W. 

long.;

(73) 40°23.58′ N. lat., 124°31.49′ W. 

long.;

(74) 40°23.64′ N. lat., 124°28.35′ W. 

long.;

(75) 40°22.53′ N. lat., 124°24.76′ W. 

long.;

(76) 40°21.46′ N. lat., 124°24.86′ W. 

long.;

(77) 40°21.74′ N. lat., 124°27.63′ W. 

long.;

(78) 40°19.76′ N. lat., 124°28.15′ W. 

long.;

(79) 40°18.00′ N. lat., 124°25.38′ W. 

long.;

(80) 40°18.54′ N. lat., 124°22.94′ W. 

long.;

(81) 40°15.55′ N. lat., 124°25.75′ W. 

long.;

(82) 40°16.06′ N. lat., 124°30.48′ W. 

long.;

(83) 40°15.75′ N. lat., 124°31.69′ W. 

long.; and

(84) 40°10.00′ N. lat., 124°21.28′ W. 

long.

(iii) The 100–fm (183–m) depth 

contour used north of 40°10′ N. lat. as 

an eastern boundary for the trawl RCA 

and as a western boundary for the nontrawl RCA is defined by straight lines 

connecting all of the following points in 

the order stated:

(1) 48°15.00′ N. lat., 125°41.00′ W. 

long.;

(2) 48°14.00′ N. lat., 125°36.00′ W. 

long.;

(3) 48°09.50′ N. lat., 125°40.50′ W. 

long.;

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 915

(4) 48°08.00′ N. lat., 125°38.00′ W. 

long.;

(5) 48°05.00′ N. lat., 125°37.25′ W. 

long.;

(6) 48°02.60′ N. lat., 125°34.70′ W. 

long.;

(7) 47°59.00′ N. lat., 125°34.00′ W. 

long.;

(8) 47°57.26′ N. lat., 125°29.82′ W. 

long.;

(9) 47°59.87′ N. lat., 125°25.81′ W. 

long.;

(10) 48°01.08′ N. lat., 125°24.53′ W. 

long.;

(11) 48°02.08′ N. lat., 125°22.98′ W. 

long.;

(12) 48°02.97′ N. lat., 125°22.89′ W. 

long.;

(13) 48°04.47′ N. lat., 125°21.75′ W. 

long.;

(14) 48°06.11′ N. lat., 125°19.33′ W. 

long.;

(15) 48°07.95′ N. lat., 125°18.55′ W. 

long.;

(16) 48°09.00′ N. lat., 125°18.00′ W. 

long.;

(17) 48°11.31′ N. lat., 125°17.55′ W. 

long.;

(18) 48°14.60′ N. lat., 125°13.46′ W. 

long.;

(19) 48°16.67′ N. lat., 125°14.34′ W. 

long.;

(20) 48°18.73′ N. lat., 125°14.41′ W. 

long.;

(21) 48°19.98′ N. lat., 125°13.24′ W. 

long.;

(22) 48°22.95′ N. lat., 125°10.79′ W. 

long.;

(23) 48°21.61′ N. lat., 125°02.54′ W. 

long.;

(24) 48°23.00′ N. lat., 124°49.34′ W. 

long.;

(25) 48°17.00′ N. lat., 124°56.50′ W. 

long.;

(26) 48°06.00′ N. lat., 125°00.00′ W. 

long.;

(27) 48°04.62′ N. lat., 125°01.73′ W. 

long.;

(28) 48°04.84′ N. lat., 125°04.03′ W. 

long.;

(29) 48°06.41′ N. lat., 125°06.51′ W. 

long.;

(30) 48°06.00′ N. lat., 125°08.00′ W. 

long.;

(31) 48°07.28′ N. lat., 125°11.14′ W. 

long.;

(32) 48°03.45′ N. lat., 125°16.66′ W. 

long.;

(33) 47°59.50′ N. lat., 125°18.88′ W. 

long.;

(34) 47°58.68′ N. lat., 125°16.19′ W. 

long.;

(35) 47°56.62′ N. lat., 125°13.50′ W. 

long.;

(36) 47°53.71′ N. lat., 125°11.96′ W. 

long.;

(37) 47°51.70′ N. lat., 125°09.38′ W. 

long.;

(38) 47°49.95′ N. lat., 125°06.07′ W. 

long.;

(39) 47°49.00′ N. lat., 125°03.00′ W. 

long.;

(40) 47°46.95′ N. lat., 125°04.00′ W. 

long.;

(41) 47°46.58′ N. lat., 125°03.15′ W. 

long.;

(42) 47°44.07′ N. lat., 125°04.28′ W. 

long.;

(43) 47°43.32′ N. lat., 125°04.41′ W. 

long.;

(44) 47°40.95′ N. lat., 125°04.14′ W. 

long.;

(45) 47°39.58′ N. lat., 125°04.97′ W. 

long.;

(46) 47°36.23′ N. lat., 125°02.77′ W. 

long.;

(47) 47°34.28′ N. lat., 124°58.66′ W. 

long.;

(48) 47°32.17′ N. lat., 124°57.77′ W. 

long.;

(49) 47°30.27′ N. lat., 124°56.16′ W. 

long.;

(50) 47°30.60′ N. lat., 124°54.80′ W. 

long.;

(51) 47°29.26′ N. lat., 124°52.21′ W. 

long.;

(52) 47°28.21′ N. lat., 124°50.65′ W. 

long.;

(53) 47°27.38′ N. lat., 124°49.34′ W. 

long.;

(54) 47°25.61′ N. lat., 124°48.26′ W. 

long.;

(55) 47°23.54′ N. lat., 124°46.42′ W. 

long.;

(56) 47°20.64′ N. lat., 124°45.91′ W. 

long.;

(57) 47°17.99′ N. lat., 124°45.59′ W. 

long.;

(58) 47°18.20′ N. lat., 124°49.12′ W. 

long.;

(59) 47°15.01′ N. lat., 124°51.09′ W. 

long.;

(60) 47°12.61′ N. lat., 124°54.89′ W. 

long.;

(61) 47°08.22′ N. lat., 124°56.53′ W. 

long.;

(62) 47°08.50′ N. lat., 124°54.95′ W. 

long.;

(63) 47°01.92′ N. lat., 124°57.74′ W. 

long.;

(64) 47°01.14′ N. lat., 124°59.35′ W. 

long.;

(65) 46°58.48′ N. lat., 124°57.81′ W. 

long.;

(66) 46°56.79′ N. lat., 124°56.03′ W. 

long.;

(67) 46°58.01′ N. lat., 124°55.09′ W. 

long.;

(68) 46°55.07′ N. lat., 124°54.14′ W. 

long.;

(69) 46°59.60′ N. lat., 124°49.79′ W. 

long.;

(70) 46°58.72′ N. lat., 124°48.78′ W. 

long.;

(71) 46°54.45′ N. lat., 124°48.36′ W. 

long.;

(72) 46°53.99′ N. lat., 124°49.95′ W. 

long.;

(73) 46°54.38′ N. lat., 124°52.73′ W. 

long.;

(74) 46°52.38′ N. lat., 124°52.02′ W. 

long.;

(75) 46°48.93′ N. lat., 124°49.17′ W. 

long.;

(76) 46°41.50′ N. lat., 124°43.00′ W. 

long.;

(77) 46°34.50′ N. lat., 124°28.50′ W. 

long.;

(78) 46°29.00′ N. lat., 124°30.00′ W. 

long.;

(79) 46°20.00′ N. lat., 124°36.50′ W. 

long.;

(80) 46°18.00′ N. lat., 124°38.00′ W. 

long.;

(81) 46°17.00′ N. lat., 124°35.50′ W. 

long.;

(82) 46°17.00′ N. lat., 124°22.50′ W. 

long.;

(83) 46°15.02′ N. lat., 124°23.77′ W. 

long.;

(84) 46°12.00′ N. lat., 124°35.00′ W. 

long.;

(85) 46°10.50′ N. lat., 124°39.00′ W. 

long.;

(86) 46°8.90′ N. lat., 124°39.11′ W. 

long.;

(87) 46°0.97′ N. lat., 124°38.56′ W. 

long.;

(88) 45°57.04′ N. lat., 124°36.42′ W. 

long.;

(89) 45°54.29′ N. lat., 124°40.02′ W. 

long.;

(90) 45°47.19′ N. lat., 124°35.58′ W. 

long.;

(91) 45°41.75′ N. lat., 124°28.32′ W. 

long.;

(92) 45°34.16′ N. lat., 124°24.23′ W. 

long.;

(93) 45°27.10′ N. lat., 124°21.74′ W. 

long.;

(94) 45°17.14′ N. lat., 124°17.85′ W. 

long.;

(95) 44°59.51′ N. lat., 124°19.34′ W. 

long.;

(96) 44°49.30′ N. lat., 124°29.97′ W. 

long.;

(97) 44°45.64′ N. lat., 124°33.89′ W. 

long.;

(98) 44°33.00′ N. lat., 124°36.88′ W. 

long.;

(99) 44°28.20′ N. lat., 124°44.72′ W. 

long.;

(100) 44°13.16′ N. lat., 124°56.36′ W. 

long.;

(101) 43°56.34′ N. lat., 124°55.74′ W. 

long.;

(102) 43°56.47′ N. lat., 124°34.61′ W. 

long.;

(103) 43°42.73′ N. lat., 124°32.41′ W. 

long.;

(104) 43°30.92′ N. lat., 124°34.43′ W. 

long.;

(105) 43°17.44′ N. lat., 124°41.16′ W. 

long.;

(106) 43°7.04′ N. lat., 124°41.25′ W. 

long.;

(107) 43°3.45′ N. lat., 124°44.36′ W. 

long.;

(108) 43°3.90′ N. lat., 124°50.81′ W. 

long.;

916 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(109) 42°55.70′ N. lat., 124°52.79′ W. 

long.;

(110) 42°54.12′ N. lat., 124°47.36′ W. 

long.;

(111) 42°43.99′ N. lat., 124°42.38′ W. 

long.;

(112) 42°38.23′ N. lat., 124°41.25′ W. 

long.;

(113) 42°33.02′ N. lat., 124°42.38′ W. 

long.;

(114) 42°31.89′ N. lat., 124°42.04′ W. 

long.;

(115) 42°30.08′ N. lat., 124°42.67′ W. 

long.;

(116) 42°28.27′ N. lat., 124°47.08′ W. 

long.;

(117) 42°25.22′ N. lat., 124°43.51′ W. 

long.;

(118) 42°19.22′ N. lat., 124°37.92′ W. 

long.;

(119) 42°16.28′ N. lat., 124°36.11′ W. 

long.;

(120) 42°5.65′ N. lat., 124°34.92′ W. 

long.;

(121) 42°0.00′ N. lat., 124°35.27′ W. 

long.;

(122) 42°00.00′ N. lat., 124°35.26′ W. 

long.;

(123) 41°47.04′ N. lat., 124°27.64′ W. 

long.;

(124) 41°32.92′ N. lat., 124°28.79′ W. 

long.;

(125) 41°24.17′ N. lat., 124°28.46′ W. 

long.;

(126) 41°10.12′ N. lat., 124°20.50′ W. 

long.;

(127) 40°51.41′ N. lat., 124°24.38′ W. 

long.;

(128) 40°43.71′ N. lat., 124°29.89′ W. 

long.;

(129) 40°40.14′ N. lat., 124°30.90′ W. 

long.;

(130) 40°37.35′ N. lat., 124°29.05′ W. 

long.;

(131) 40°34.76′ N. lat., 124°29.82′ W. 

long.;

(132) 40°36.78′ N. lat., 124°37.06′ W. 

long.;

(133) 40°32.44′ N. lat., 124°39.58′ W. 

long.;

(134) 40°24.82′ N. lat., 124°35.12′ W. 

long.;

(135) 40°23.30′ N. lat., 124°31.60′ W. 

long.;

(136) 40°23.52′ N. lat., 124°28.78′ W. 

long.;

(137) 40°22.43′ N. lat., 124°25.00′ W. 

long.;

(138) 40°21.72′ N. lat., 124°24.94′ W. 

long.;

(139) 40°21.87′ N. lat., 124°27.96′ W. 

long.;

(140) 40°21.40′ N. lat., 124°28.74′ W. 

long.;

(141) 40°19.68′ N. lat., 124°28.49′ W. 

long.;

(142) 40°17.73′ N. lat., 124°25.43′ W. 

long.;

(143) 40°18.37′ N. lat., 124°23.35′ W. 

long.;

(144) 40°15.75′ N. lat., 124°26.05′ W. 

long.;

(145) 40°16.75′ N. lat., 124°33.71′ W. 

long.;

(146) 40°16.29′ N. lat., 124°34.36′ W. 

long.; and

(147) 40°10.00′ N. lat., 124°21.12′ W. 

long.

(iv) The 250–fm (457–m) depth 

contour used north of 38° N. lat. for 

March through October as a western 

boundary for the trawl RCA is defined 

by straight lines connecting all of the 

following points in the order stated:

(1) 48°14.68′ N. lat., 125°42.10′ W. 

long.;

(2) 48°12.83′ N. lat., 125°39.71′ W. 

long.;

(3) 48°13.00′ N. lat., 125°39.00′ W. 

long.;

(4) 48°12.73′ N. lat., 125°38.87′ W. 

long.;

(5) 48°12.43′ N. lat., 125°39.12′ W. 

long.;

(6) 48°11.83′ N. lat., 125°40.01′ W. 

long.;

(7) 48°11.78′ N. lat., 125°41.70′ W. 

long.;

(8) 48°10.62′ N. lat., 125°43.41′ W. 

long.;

(9) 48°09.23′ N. lat., 125°42.80′ W. 

long.;

(10) 48°08.79′ N. lat., 125°43.79′ W. 

long.;

(11) 48°08.50′ N. lat., 125°45.00′ W. 

long.;

(12) 48°07.43′ N. lat., 125°46.36′ W. 

long.;

(13) 48°06.00′ N. lat., 125°46.50′ W. 

long.;

(14) 48°05.38′ N. lat., 125°42.82′ W. 

long.;

(15) 48°04.19′ N. lat., 125°40.40′ W. 

long.;

(16) 48°03.50′ N. lat., 125°37.00′ W. 

long.;

(17) 48°01.50′ N. lat., 125°40.00′ W. 

long.;

(18) 47°57.00′ N. lat., 125°37.00′ W. 

long.;

(19) 47°55.21′ N. lat., 125°37.22′ W. 

long.;

(20) 47°54.02′ N. lat., 125°36.57′ W. 

long.;

(21) 47°53.67′ N. lat., 125°35.06′ W. 

long.;

(22) 47°54.14′ N. lat., 125°32.35′ W. 

long.;

(23) 47°55.50′ N. lat., 125°28.56′ W. 

long.;

(24) 47°57.03′ N. lat., 125°26.52′ W. 

long.;

(25) 47°57.98′ N. lat., 125°25.08′ W. 

long.;

(26) 48°00.54′ N. lat., 125°24.38′ W. 

long.;

(27) 48°01.45′ N. lat., 125°23.70′ W. 

long.;

(28) 48°01.97′ N. lat., 125°22.34′ W. 

long.;

(29) 48°03.68′ N. lat., 125°21.20′ W. 

long.;

(30) 48°01.96′ N. lat., 125°19.56′ W. 

long.;

(31) 48°00.98′ N. lat., 125°20.43′ W. 

long.;

(32) 48°00.00′ N. lat., 125°20.68′ W. 

long.;

(33) 47°58.00′ N. lat., 125°20.00′ W. 

long.;

(34) 47°57.65′ N. lat., 125°19.18′ W. 

long.;

(35) 47°58.00′ N. lat., 125°18.00′ W. 

long.;

(36) 47°56.59′ N. lat., 125°18.15′ W. 

long.;

(37) 47°51.30′ N. lat., 125°18.32′ W. 

long.;

(38) 47°49.88′ N. lat., 125°14.49′ W. 

long.;

(39) 47°49.00′ N. lat., 125°11.00′ W. 

long.;

(40) 47°47.99′ N. lat., 125°07.31′ W. 

long.;

(41) 47°46.47′ N. lat., 125°08.63′ W. 

long.;

(42) 47°46.00′ N. lat., 125°06.00′ W. 

long.;

(43) 47°44.50′ N. lat., 125°07.50′ W. 

long.;

(44) 47°43.39′ N. lat., 125°06.57′ W. 

long.;

(45) 47°42.37′ N. lat., 125°05.74′ W. 

long.;

(46) 47°40.61′ N. lat., 125°06.48′ W. 

long.;

(47) 47°37.43′ N. lat., 125°07.33′ W. 

long.;

(48) 47°33.68′ N. lat., 125°04.80′ W. 

long.;

(49) 47°30.00′ N. lat., 125°00.00′ W. 

long.;

(50) 47°28.00′ N. lat., 124°58.50′ W. 

long.;

(51) 47°28.88′ N. lat., 124°54.71′ W. 

long.;

(52) 47°27.70′ N. lat., 124°51.87′ W. 

long.;

(53) 47°24.84′ N. lat., 124°48.45′ W. 

long.;

(54) 47°21.76′ N. lat., 124°47.42′ W. 

long.;

(55) 47°18.84′ N. lat., 124°46.75′ W. 

long.;

(56) 47°19.82′ N. lat., 124°51.43′ W. 

long.;

(57) 47°18.13′ N. lat., 124°54.25′ W. 

long.;

(58) 47°13.50′ N. lat., 124°54.69′ W. 

long.;

(59) 47°15.00′ N. lat., 125°00.00′ W. 

long.;

(60) 47°08.00′ N. lat., 124°59.83′ W. 

long.;

(61) 47°05.79′ N. lat., 125°01.00′ W. 

long.;

(62) 47°03.34′ N. lat., 124°57.49′ W. 

long.;

(63) 47°01.00′ N. lat., 125°00.00′ W. 

long.;

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 917

(64) 46°55.00′ N. lat., 125°02.00′ W. 

long.;

(65) 46°51.00′ N. lat., 124°57.00′ W. 

long.;

(66) 46°47.00′ N. lat., 124°55.00′ W. 

long.;

(67) 46°34.00′ N. lat., 124°38.00′ W. 

long.;

(68) 46°30.50′ N. lat., 124°41.00′ W. 

long.;

(69) 46°33.00′ N. lat., 124°32.00′ W. 

long.;

(70) 46°29.00′ N. lat., 124°32.00′ W. 

long.;

(71) 46°20.00′ N. lat., 124°39.00′ W. 

long.;

(72) 46°18.16′ N. lat., 124°40.00′ W. 

long.;

(73) 46°15.83′ N. lat., 124°27.01′ W. 

long.;

(74) 46°15.00′ N. lat., 124°30.96′ W. 

long.;

(75) 46°13.17′ N. lat., 124°37.87′ W. 

long.;

(76) 46°13.17′ N. lat., 124°38.75′ W. 

long.;

(77) 46°10.50′ N. lat., 124°42.00′ W. 

long.;

(78) 46°6.21′ N. lat., 124°41.85′ W. 

long.;

(79) 46°3.02′ N. lat., 124°50.27′ W. 

long.;

(80) 45°57.00′ N. lat., 124°45.52′ W. 

long.;

(81) 45°46.85′ N. lat., 124°45.91′ W. 

long.;

(82) 45°45.81′ N. lat., 124°47.05′ W. 

long.;

(83) 45°44.87′ N. lat., 124°45.98′ W. 

long.;

(84) 45°43.44′ N. lat., 124°46.03′ W. 

long.;

(85) 45°35.82′ N. lat., 124°45.72′ W. 

long.;

(86) 45°35.70′ N. lat., 124°42.89′ W. 

long.;

(87) 45°24.45′ N. lat., 124°38.21′ W. 

long.;

(88) 45°11.68′ N. lat., 124°39.38′ W. 

long.;

(89) 44°57.94′ N. lat., 124°37.02′ W. 

long.;

(90) 44°44.28′ N. lat., 124°50.79′ W. 

long.;

(91) 44°32.63′ N. lat., 124°54.21′ W. 

long.;

(92) 44°23.20′ N. lat., 124°49.87′ W. 

long.;

(93) 44°13.17′ N. lat., 124°58.81′ W. 

long.;

(94) 43°57.92′ N. lat., 124°58.29′ W. 

long.;

(95) 43°50.12′ N. lat., 124°53.36′ W. 

long.;

(96) 43°49.53′ N. lat., 124°43.96′ W. 

long.;

(97) 43°42.76′ N. lat., 124°41.40′ W. 

long.;

(98) 43°24.00′ N. lat., 124°42.61′ W. 

long.;

(99) 43°19.74′ N. lat., 124°45.12′ W. 

long.;

(100) 43°19.62′ N. lat., 124°52.95′ W. 

long.;

(101) 43°17.41′ N. lat., 124°53.02′ W. 

long.;

(102) 42°49.15′ N. lat., 124°54.93′ W. 

long.;

(103) 42°46.74′ N. lat., 124°53.39′ W. 

long.;

(104) 42°43.76′ N. lat., 124°51.64′ W. 

long.;

(105) 42°45.41′ N. lat., 124°49.35′ W. 

long.;

(106) 42°43.92′ N. lat., 124°45.92′ W. 

long.;

(107) 42°38.87′ N. lat., 124°43.38′ W. 

long.;

(108) 42°34.78′ N. lat., 124°46.56′ W. 

long.;

(109) 42°31.47′ N. lat., 124°46.89′ W. 

long.;

(110) 42°31.00′ N. lat., 124°44.28′ W. 

long.;

(111) 42°29.22′ N. lat., 124°46.93′ W. 

long.;

(112) 42°28.39′ N. lat., 124°49.94′ W. 

long.;

(113) 42°26.28′ N. lat., 124°47.60′ W. 

long.;

(114) 42°19.58′ N. lat., 124°43.21′ W. 

long.;

(115) 42°13.75′ N. lat., 124°40.06′ W. 

long.;

(116) 42°5.12′ N. lat., 124°39.06′ W. 

long.;

(117) 41°59.99′ N. lat., 124°37.72′ W. 

long.;

(118) 42°0.00′ N. lat., 124°37.76′ W. 

long.;

(119) 41°47.93′ N. lat., 124°31.79′ W. 

long.;

(120) 41°21.35′ N. lat., 124°30.35′ W. 

long.;

(121) 41°7.11′ N. lat., 124°25.25′ W. 

long.;

(122) 40°57.37′ N. lat., 124°30.25′ W. 

long.;

(123) 40°41.03′ N. lat., 124°33.21′ W. 

long.;

(124) 40°37.40′ N. lat., 124°38.96′ W. 

long.;

(125) 40°33.70′ N. lat., 124°42.50′ W. 

long.;

(126) 40°31.31′ N. lat., 124°41.59′ W. 

long.;

(127) 40°25.00′ N. lat., 124°36.65′ W. 

long.;

(128) 40°22.42′ N. lat., 124°32.19′ W. 

long.;

(129) 40°17.17′ N. lat., 124°32.21′ W. 

long.;

(130) 40°18.68′ N. lat., 124°50.44′ W. 

long.;

(131) 40°10.11′ N. lat., 124°28.25′ W. 

long.;

(132) 40°1.63′ N. lat., 124°17.25′ W. 

long.;

(133) 39°51.85′ N. lat., 124°10.33′ W. 

long.;

(134) 39°32.41′ N. lat., 124°0.01′ W. 

long.;

(135) 38°57.16′ N. lat., 124°1.89′ W. 

long.;

(136) 38°11.66′ N. lat., 123°30.87′ W. 

long.;

(137) 38°3.18′ N. lat., 123°33.45′ W. 

long.; and

(138) 38°00.00′ N. lat., 123°28.84′ W. 

long.

(v) The 250–fm (457–m) depth 

contour modified to allow fishing for 

petrale in winter months of January, 

February, November, and December and 

used north of 38° N. lat. as a western 

boundary for the trawl RCA is defined 

by straight lines connecting all of the 

following points in the order stated:

(1) 48°14.71′ N. lat., 125°41.95′ W. 

long.;

(2) 48°13.00′ N. lat., 125°39.00′ W. 

long.;

(3) 48°08.50′ N. lat., 125°45.00′ W. 

long.;

(4) 48°06.00′ N. lat., 125°46.50′ W. 

long.;

(5) 48°03.50′ N. lat., 125°37.00′ W. 

long.;

(6) 48°01.50′ N. lat., 125°40.00′ W. 

long.;

(7) 47°57.00′ N. lat., 125°37.00′ W. 

long.;

(8) 47°55.50′ N. lat., 125°28.50′ W. 

long.;

(9) 47°58.00′ N. lat., 125°25.00′ W. 

long.;

(10) 48°00.50′ N. lat., 125°24.50′ W. 

long.;

(11) 48°03.50′ N. lat., 125°21.00′ W. 

long.;

(12) 48°02.00′ N. lat., 125°19.50′ W. 

long.;

(13) 48°00.00′ N. lat., 125°21.00′ W. 

long.;

(14) 47°58.00′ N. lat., 125°20.00′ W. 

long.;

(15) 47°58.00′ N. lat., 125°18.00′ W. 

long.;

(16) 47°52.00′ N. lat., 125°16.50′ W. 

long.;

(17) 47°49.00′ N. lat., 125°11.00′ W. 

long.;

(18) 47°46.00′ N. lat., 125°06.00′ W. 

long.;

(19) 47°44.50′ N. lat., 125°07.50′ W. 

long.;

(20) 47°42.00′ N. lat., 125°06.00′ W. 

long.;

(21) 47°38.00′ N. lat., 125°07.00′ W. 

long.;

(22) 47°30.00′ N. lat., 125°00.00′ W. 

long.;

(23) 47°28.00′ N. lat., 124°58.50′ W. 

long.;

(24) 47°28.88′ N. lat., 124°54.71′ W. 

long.;

(25) 47°27.70′ N. lat., 124°51.87′ W. 

long.;

(26) 47°24.84′ N. lat., 124°48.45′ W. 

long.;

918 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(27) 47°21.76′ N. lat., 124°47.42′ W. 

long.;

(28) 47°18.84′ N. lat., 124°46.75′ W. 

long.;

(29) 47°19.82′ N. lat., 124°51.43′ W. 

long.;

(30) 47°18.13′ N. lat., 124°54.25′ W. 

long.;

(31) 47°13.50′ N. lat., 124°54.69′ W. 

long.;

(32) 47°15.00′ N. lat., 125°00.00′ W. 

long.;

(33) 47°08.00′ N. lat., 124°59.82′ W. 

long.;

(34) 47°05.79′ N. lat., 125°01.00′ W. 

long.;

(35) 47°03.34′ N. lat., 124°57.49′ W. 

long.;

(36) 47°01.00′ N. lat., 125°00.00′ W. 

long.;

(37) 46°55.00′ N. lat., 125°02.00′ W. 

long.;

(38) 46°51.00′ N. lat., 124°57.00′ W. 

long.;

(39) 46°47.00′ N. lat., 124°55.00′ W. 

long.;

(40) 46°34.00′ N. lat., 124°38.00′ W. 

long.;

(41) 46°30.50′ N. lat., 124°41.00′ W. 

long.;

(42) 46°33.00′ N. lat., 124°32.00′ W. 

long.;

(43) 46°29.00′ N. lat., 124°32.00′ W. 

long.;

(44) 46°20.00′ N. lat., 124°39.00′ W. 

long.;

(45) 46°18.16′ N. lat., 124°40.00′ W. 

long.;

(46) 46°15.83′ N. lat., 124°27.01′ W. 

long.;

(47) 46°15.00′ N. lat., 124°30.96′ W. 

long.;

(48) 46°13.17′ N. lat., 124°38.76′ W. 

long.;

(49) 46°10.51′ N. lat., 124°41.99′ W. 

long.;

(50) 46°6.24′ N. lat., 124°41.81′ W. 

long.;

(51) 46°3.04′ N. lat., 124°50.26′ W. 

long.;

(52) 45°56.99′ N. lat., 124°45.45′ W. 

long.;

(53) 45°49.94′ N. lat., 124°45.75′ W. 

long.;

(54) 45°49.94′ N. lat., 124°42.33′ W. 

long.;

(55) 45°45.73′ N. lat., 124°42.18′ W. 

long.;

(56) 45°45.73′ N. lat., 124°43.82′ W. 

long.;

(57) 45°41.94′ N. lat., 124°43.61′ W. 

long.;

(58) 45°41.58′ N. lat., 124°39.86′ W. 

long.;

(59) 45°38.45′ N. lat., 124°39.94′ W. 

long.;

(60) 45°35.75′ N. lat., 124°42.91′ W. 

long.;

(61) 45°24.49′ N. lat., 124°38.20′ W. 

long.;

(62) 45°14.43′ N. lat., 124°39.05′ W. 

long.;

(63) 45°14.30′ N. lat., 124°34.19′ W. 

long.;

(64) 45°8.98′ N. lat., 124°34.26′ W. 

long.;

(65) 45°9.02′ N. lat., 124°38.81′ W. 

long.;

(66) 44°57.98′ N. lat., 124°36.98′ W. 

long.;

(67) 44°56.62′ N. lat., 124°38.32′ W. 

long.;

(68) 44°50.82′ N. lat., 124°35.52′ W. 

long.;

(69) 44°46.89′ N. lat., 124°38.32′ W. 

long.;

(70) 44°50.78′ N. lat., 124°44.24′ W. 

long.;

(71) 44°44.27′ N. lat., 124°50.78′ W. 

long.;

(72) 44°32.63′ N. lat., 124°54.24′ W. 

long.;

(73) 44°23.25′ N. lat., 124°49.78′ W. 

long.;

(74) 44°13.16′ N. lat., 124°58.81′ W. 

long.;

(75) 43°57.88′ N. lat., 124°58.25′ W. 

long.;

(76) 43°56.89′ N. lat., 124°57.33′ W. 

long.;

(77) 43°53.41′ N. lat., 124°51.95′ W. 

long.;

(78) 43°51.56′ N. lat., 124°47.38′ W. 

long.;

(79) 43°51.49′ N. lat., 124°37.77′ W. 

long.;

(80) 43°48.02′ N. lat., 124°43.31′ W. 

long.;

(81) 43°42.77′ N. lat., 124°41.39′ W. 

long.;

(82) 43°24.09′ N. lat., 124°42.57′ W. 

long.;

(83) 43°19.73′ N. lat., 124°45.09′ W. 

long.;

(84) 43°15.98′ N. lat., 124°47.76′ W. 

long.;

(85) 43°4.14′ N. lat., 124°52.55′ W. 

long.;

(86) 43°4.00′ N. lat., 124°53.88′ W. 

long.;

(87) 42°54.69′ N. lat., 124°54.54′ W. 

long.;

(88) 42°45.46′ N. lat., 124°49.37′ W. 

long.;

(89) 42°43.91′ N. lat., 124°45.90′ W. 

long.;

(90) 42°38.84′ N. lat., 124°43.36′ W. 

long.;

(91) 42°34.82′ N. lat., 124°46.56′ W. 

long.;

(92) 42°31.57′ N. lat., 124°46.86′ W. 

long.;

(93) 42°30.98′ N. lat., 124°44.27′ W. 

long.;

(94) 42°29.21′ N. lat., 124°46.93′ W. 

long.;

(95) 42°28.52′ N. lat., 124°49.40′ W. 

long.;

(96) 42°26.06′ N. lat., 124°46.61′ W. 

long.;

(97) 42°21.82′ N. lat., 124°43.76′ W. 

long.;

(98) 42°17.47′ N. lat., 124°38.89′ W. 

long.;

(99) 42°13.67′ N. lat., 124°37.51′ W. 

long.;

(100) 42°13.76′ N. lat., 124°40.03′ W. 

long.;

(101) 42°5.12′ N. lat., 124°39.06′ W. 

long.;

(102) 42°2.67′ N. lat., 124°38.41′ W. 

long.;

(103) 42°2.67′ N. lat., 124°35.95′ W. 

long.;

(104) 42°0.00′ N. lat., 124°35.88′ W. 

long.;

(105) 41°59.99′ N. lat., 124°35.92′ W. 

long.;

(106) 41°56.38′ N. lat., 124°34.96′ W. 

long.;

(107) 41°53.98′ N. lat., 124°32.50′ W. 

long.;

(108) 41°50.69′ N. lat., 124°30.46′ W. 

long.;

(109) 41°48.30′ N. lat., 124°29.91′ W. 

long.;

(110) 41°47.93′ N. lat., 124°31.79′ W. 

long.;

(111) 41°21.35′ N. lat., 124°30.35′ W. 

long.;

(112) 41°7.11′ N. lat., 124°25.25′ W. 

long.;

(113) 40°57.37′ N. lat., 124°30.25′ W. 

long.;

(114) 40°41.03′ N. lat., 124°33.21′ W. 

long.;

(115) 40°37.40′ N. lat., 124°38.96′ W. 

long.;

(116) 40°33.70′ N. lat., 124°42.50′ W. 

long.;

(117) 40°31.31′ N. lat., 124°41.59′ W. 

long.;

(118) 40°25.00′ N. lat., 124°36.65′ W. 

long.;

(119) 40°22.42′ N. lat., 124°32.19′ W. 

long.;

(120) 40°17.17′ N. lat., 124°32.21′ W. 

long.;

(121) 40°18.68′ N. lat., 124°50.44′ W. 

long.;

(122) 40°10.11′ N. lat., 124°28.25′ W. 

long.;

(123) 40°1.63′ N. lat., 124°17.25′ W. 

long.;

(124) 39°51.85′ N. lat., 124°10.33′ W. 

long.;

(125) 39°32.41′ N. lat., 124°0.01′ W. 

long.;

(126) 38°57.16′ N. lat., 124°1.89′ W. 

long.;

(127) 38°11.66′ N. lat., 123°30.87′ W. 

long.;

(128) 38°3.18′ N. lat., 123°33.45′ W. 

long.; and

(129) 38°00.00′ N. lat., 123°28.84′ W. 

long.

(vi) The 50–fm (91–m) depth contour 

used between 40°10′ N. lat. and 34°27′

N. lat. as an eastern boundary for the 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 919

trawl RCA in the months of January and 

February is defined by straight lines 

connecting all of the following points in 

the order stated:

(1) 40°10.01′ N. lat., 124°19.97′ W. 

long.;

(2) 40°9.20′ N. lat., 124°15.81′ W. 

long.;

(3) 40°7.51′ N. lat., 124°15.29′ W. 

long.;

(4) 40°5.22′ N. lat., 124°10.06′ W. 

long.;

(5) 40°6.51′ N. lat., 124°8.01′ W. long.;

(6) 40°0.72′ N. lat., 124°8.45′ W. long.;

(7) 39°56.60′ N. lat., 124°7.12′ W. 

long.;

(8) 39°52.58′ N. lat., 124°3.57′ W. 

long.;

(9) 39°50.65′ N. lat., 123°57.98′ W. 

long.;

(10) 39°40.16′ N. lat., 123°52.41′ W. 

long.;

(11) 39°30.12′ N. lat., 123°52.92′ W. 

long.;

(12) 39°24.53′ N. lat., 123°55.16′ W. 

long.;

(13) 39°11.58′ N. lat., 123°50.93′ W. 

long.;

(14) 38°55.13′ N. lat., 123°51.14′ W. 

long.;

(15) 38°28.58′ N. lat., 123°22.84′ W. 

long.;

(16) 38°14.58′ N. lat., 123°9.93′ W. 

long.;

(17) 38°1.86′ N. lat., 123°9.76′ W. 

long.;

(18) 37°53.66′ N. lat., 123°12.06′ W. 

long.;

(19) 37°48.01′ N. lat., 123°15.84′ W. 

long.;

(20) 37°36.77′ N. lat., 122°58.48′ W. 

long.;

(21) 37°1.02′ N. lat., 122°33.71′ W. 

long.;

(22) 37°2.28′ N. lat., 122°25.06′ W. 

long.;

(23) 36°48.20′ N. lat., 122°3.28′ W. 

long.;

(24) 36°51.46′ N. lat., 121°57.54′ W. 

long.;

(25) 36°44.14′ N. lat., 121°58.10′ W. 

long.;

(26) 36°36.76′ N. lat., 122°1.16′ W. 

long.;

(27) 36°15.62′ N. lat., 121°57.13′ W. 

long.;

(28) 36°10.60′ N. lat., 121°43.65′ W. 

long.;

(29) 35°40.38′ N. lat., 121°22.59′ W. 

long.;

(30) 35°24.35′ N. lat., 121°2.53′ W. 

long.;

(31) 35°2.66′ N. lat., 120°51.63′ W. 

long.;

(32) 34°39.52′ N. lat., 120°48.72′ W. 

long.;

(33) 34°31.26′ N. lat., 120°44.12′ W. 

long.; and

(34) 34°27.00′ N. lat., 120°31.25′ W. 

long.

(vii) The 60–fm (110–m) depth 

contour used between 40°10′ N. lat. and 

34°27′ N. lat. as an eastern boundary for 

the trawl RCA in March through 

October is defined by straight lines 

connecting all of the following points in 

the order stated:

(1) 40°10.01′ N. lat., 124°19.97′ W. 

long.;

(2) 40°9.20′ N. lat., 124°15.81′ W. 

long.;

(3) 40°7.51′ N. lat., 124°15.29′ W. 

long.;

(4) 40°5.22′ N. lat., 124°10.06′ W. 

long.;

(5) 40°6.51′ N. lat., 124°8.01′ W. long.;

(6) 40°0.72′ N. lat., 124°8.45′ W. long.;

(7) 39°56.60′ N. lat., 124°7.12′ W. 

long.;

(8) 39°52.58′ N. lat., 124°3.57′ W. 

long.;

(9) 39°50.65′ N. lat., 123°57.98′ W. 

long.;

(10) 39°40.16′ N. lat., 123°52.41′ W. 

long.;

(11) 39°30.12′ N. lat., 123°52.92′ W. 

long.;

(12) 39°24.53′ N. lat., 123°55.16′ W. 

long.;

(13) 39°11.58′ N. lat., 123°50.93′ W. 

long.;

(14) 38°55.13′ N. lat., 123°51.14′ W. 

long.;

(15) 38°28.58′ N. lat., 123°22.84′ W. 

long.;

(16) 38°8.32′ N. lat., 123°14.60′ W. 

long.;

(17) 38°0.27′ N. lat., 123°15.29′ W. 

long.;

(18) 37°56.93′ N. lat., 123°21.61′ W. 

long.;

(19) 37°48.01′ N. lat., 123°15.84′ W. 

long.;

(20) 37°36.77′ N. lat., 122°58.48′ W. 

long.;

(21) 37°1.02′ N. lat., 122°33.71′ W. 

long.;

(22) 37°2.28′ N. lat., 122°25.06′ W. 

long.;

(23) 36°48.20′ N. lat., 122°3.28′ W. 

long.;

(24) 36°51.46′ N. lat., 121°57.54′ W. 

long.;

(25) 36°44.14′ N. lat., 121°58.10′ W. 

long.;

(26) 36°36.76′ N. lat., 122°1.16′ W. 

long.;

(27) 36°15.62′ N. lat., 121°57.13′ W. 

long.;

(28) 36°10.60′ N. lat., 121°43.65′ W. 

long.;

(29) 35°40.38′ N. lat., 121°22.59′ W. 

long.;

(30) 35°24.35′ N. lat., 121°2.53′ W. 

long.;

(31) 35°2.66′ N. lat., 120°51.63′ W. 

long.;

(32) 34°39.52′ N. lat., 120°48.72′ W. 

long.;

(33) 34°31.26′ N. lat., 120°44.12′ W. 

long.; and

(34) 34°27.00′ N. lat., 120°31.25′ W. 

long.

(viii) The 100–fm (183–m) depth 

contour used between 34°27′ N. lat. and 

the U.S. border with Mexico as an 

eastern boundary for the trawl RCA is 

defined by straight lines connecting all 

of the following points in the order 

stated:

(1) 34°27.00′ N. lat., 120°31.74′ W. 

long.;

(2) 34°21.90′ N. lat., 120°25.25′ W. 

long.;

(3) 34°24.86′ N. lat., 120°16.81′ W. 

long.;

(4) 34°22.80′ N. lat., 119°57.06′ W. 

long.;

(5) 34°18.59′ N. lat., 119°44.84′ W. 

long.;

(6) 34°15.04′ N. lat., 119°40.34′ W. 

long.;

(7) 34°14.40′ N. lat., 119°45.39′ W. 

long.;

(8) 34°12.32′ N. lat., 119°42.41′ W. 

long.;

(9) 34°9.71′ N. lat., 119°28.85′ W. 

long.;

(10) 34°4.70′ N. lat., 119°15.38′ W. 

long.;

(11) 34°3.33′ N. lat., 119°12.93′ W. 

long.;

(12) 34°2.72′ N. lat., 119°7.01′ W. 

long.;

(13) 34°3.90′ N. lat., 119°4.64′ W. 

long.;

(14) 34°1.80′ N. lat., 119°3.23′ W. 

long.;

(15) 33°59.32′ N. lat., 119°3.50′ W. 

long.;

(16) 33°59.00′ N. lat., 118°59.55′ W. 

long.;

(17) 33°59.51′ N. lat., 118°57.25′ W. 

long.;

(18) 33°58.82′ N. lat., 118°52.47′ W. 

long.;

(19) 33°58.54′ N. lat., 118°41.86′ W. 

long.;

(20) 33°55.07′ N. lat., 118°34.25′ W. 

long.;

(21) 33°54.28′ N. lat., 118°38.68′ W. 

long.;

(22) 33°51.00′ N. lat., 118°36.66′ W. 

long.;

(23) 33°39.77′ N. lat., 118°18.41′ W. 

long.;

(24) 33°35.50′ N. lat., 118°16.85′ W. 

long.;

(25) 33°32.68′ N. lat., 118°9.82′ W. 

long.;

(26) 33°34.09′ N. lat., 117°54.06′ W. 

long.;

(27) 33°31.60′ N. lat., 117°49.28′ W. 

long.;

(28) 33°16.07′ N. lat., 117°34.74′ W. 

long.;

(29) 33°7.06′ N. lat., 117°22.71′ W. 

long.;

920 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

(30) 32°53.34′ N. lat., 117°19.13′ W. 

long.;

(31) 32°46.39′ N. lat., 117°23.45′ W. 

long.;

(32) 32°42.79′ N. lat., 117°21.16′ W. 

long.; and

(33) 32°34.22′ N. lat., 117°21.20′ W. 

long.

(ix) The 150–fm (274–m) depth 

contour used between 38° N. lat. and the 

U.S. border with Mexico as a western 

boundary for both the trawl RCA and 

the non-trawl RCA is defined by straight 

lines connecting all of the following 

points in the order stated:

(1) 37°59.73′ N. lat., 123°29.85′ W. 

long.;

(2) 37°51.46′ N. lat., 123°25.16′ W. 

long.;

(3) 37°44.06′ N. lat., 123°11.44′ W. 

long.;

(4) 37°35.26′ N. lat., 123°2.29′ W. 

long.;

(5) 37°14.00′ N. lat., 122°50.00′ W. 

long.;

(6) 37°1.00′ N. lat., 122°36.00′ W. 

long.;

(7) 36°58.07′ N. lat., 122°28.35′ W. 

long.;

(8) 37°0.71′ N. lat., 122°24.53′ W. 

long.;

(9) 36°57.50′ N. lat., 122°24.98′ W. 

long.;

(10) 36°58.38′ N. lat., 122°21.85′ W. 

long.;

(11) 36°55.85′ N. lat., 122°21.95′ W. 

long.;

(12) 36°52.86′ N. lat., 122°12.89′ W. 

long.;

(13) 36°48.71′ N. lat., 122°9.28′ W. 

long.;

(14) 36°46.65′ N. lat., 122°4.10′ W. 

long.;

(15) 36°51.00′ N. lat., 121°58.00′ W. 

long.;

(16) 36°44.00′ N. lat., 121°59.00′ W. 

long.;

(17) 36°38.00′ N. lat., 122°2.00′ W. 

long.;

(18) 36°26.00′ N. lat., 121°59.05′ W. 

long.;

(19) 36°22.00′ N. lat., 122°1.00′ W. 

long.;

(20) 36°19.00′ N. lat., 122°5.00′ W. 

long.;

(21) 36°14.00′ N. lat., 121°58.00′ W. 

long.;

(22) 36°10.61′ N. lat., 121°44.51′ W. 

long.;

(23) 35°50.53′ N. lat., 121°29.93′ W. 

long.;

(24) 35°46.00′ N. lat., 121°28.00′ W. 

long.;

(25) 35°38.94′ N. lat., 121°23.16′ W. 

long.;

(26) 35°26.00′ N. lat., 121°8.00′ W. 

long.;

(27) 35°7.42′ N. lat., 120°57.08′ W. 

long.;

(28) 34°42.00′ N. lat., 120°54.00′ W. 

long.;

(29) 34°29.00′ N. lat., 120°44.00′ W. 

long.;

(30) 34°22.00′ N. lat., 120°32.00′ W. 

long.;

(31) 34°21.00′ N. lat., 120°21.00′ W. 

long.;

(32) 34°24.00′ N. lat., 120°15.00′ W. 

long.;

(33) 34°22.11′ N. lat., 119°56.63′ W. 

long.;

(34) 34°19.00′ N. lat., 119°48.00′ W. 

long.;

(35) 34°15.00′ N. lat., 119°48.00′ W. 

long.;

(36) 34°8.00′ N. lat., 119°37.00′ W. 

long.;

(37) 34°7.00′ N. lat., 120°11.00′ W. 

long.;

(38) 34°13.00′ N. lat., 120°30.00′ W. 

long.;

(39) 34°9.00′ N. lat., 120°38.00′ W. 

long.;

(40) 33°58.00′ N. lat., 120°29.00′ W. 

long.;

(41) 33°51.00′ N. lat., 120°9.00′ W. 

long.;

(42) 33°38.00′ N. lat., 119°58.00′ W. 

long.;

(43) 33°38.00′ N. lat., 119°50.00′ W. 

long.;

(44) 33°46.25′ N. lat., 119°49.32′ W. 

long.;

(45) 33°53.82′ N. lat., 119°53.42′ W. 

long.;

(46) 33°59.00′ N. lat., 119°21.00′ W. 

long.;

(47) 34°2.00′ N. lat., 119°13.00′ W. 

long.;

(48) 34°1.52′ N. lat., 119°4.50′ W. 

long.;

(49) 33°58.83′ N. lat., 119°3.76′ W. 

long.;

(50) 33°56.55′ N. lat., 118°40.50′ W. 

long.;

(51) 33°51.00′ N. lat., 118°38.00′ W. 

long.;

(52) 33°39.63′ N. lat., 118°18.75′ W. 

long.;

(53) 33°35.44′ N. lat., 118°17.57′ W. 

long.;

(54) 33°31.98′ N. lat., 118°12.59′ W. 

long.;

(55) 33°33.25′ N. lat., 117°54.15′ W. 

long.;

(56) 33°31.43′ N. lat., 117°49.84′ W. 

long.;

(57) 33°16.53′ N. lat., 117°36.13′ W. 

long.;

(58) 33°6.51′ N. lat., 117°24.11′ W. 

long.;

(59) 32°54.11′ N. lat., 117°21.45′ W. 

long.;

(60) 32°46.15′ N. lat., 117°24.26′ W. 

long.;

(61) 32°41.97′ N. lat., 117°22.10′ W. 

long.;

(62) 32°39.00′ N. lat., 117°28.13′ W. 

long.; and

(63) 32°34.84′ N. lat., 117°24.62′ W. 

long.

(x) The 150–fm (274–m) depth 

contour used around islands/seamounts 

off the state of California is defined by 

straight lines around each island/

seamount connecting all of the 

following points in the order stated:

(A) San Nicholas Island

(1) 33°32.73′ N. lat., 119°47.00′ W. 

long.;

(2) 33°14.00′ N. lat., 119°15.00′ W. 

long.;

(3) 33°12.00′ N. lat., 119°18.00′ W. 

long.;

(4) 33°11.00′ N. lat., 119°26.00′ W. 

long.;

(5) 33°13.13′ N. lat., 119°43.19′ W. 

long.;

(6) 33°13.11′ N. lat., 119°53.05′ W. 

long.;

(7) 33°30.00′ N. lat., 119°52.00′ W. 

long.; and

(8) 33°32.73′ N. lat., 119°47.00′ W. 

long.

(B) Santa Catalina Island

(1) 33°19.00′ N. lat., 118°15.00′ W. 

long.;

(2) 33°26.00′ N. lat., 118°22.00′ W. 

long.;

(3) 33°28.00′ N. lat., 118°28.00′ W. 

long.;

(4) 33°30.00′ N. lat., 118°31.00′ W. 

long.;

(5) 33°31.00′ N. lat., 118°37.00′ W. 

long.;

(6) 33°29.00′ N. lat., 118°41.00′ W. 

long.;

(7) 33°23.00′ N. lat., 118°31.00′ W. 

long.;

(8) 33°21.00′ N. lat., 118°33.00′ W. 

long.;

(9) 33°18.00′ N. lat., 118°28.00′ W. 

long.;

(10) 33°16.00′ N. lat., 118°13.00′ W. 

long.; and

(11) 33°19.00′ N. lat., 118°15.00′ W. 

long.

(C) San Clemente Island

(1) 32°48.50′ N. lat., 118°18.34′ W. 

long.;

(2) 32°56.00′ N. lat., 118°29.00′ W. 

long.;

(3) 33°3.00′ N. lat., 118°34.00′ W. 

long.;

(4) 33°5.00′ N. lat., 118°38.00′ W. 

long.;

(5) 33°3.00′ N. lat., 118°40.00′ W. 

long.;

(6) 32°48.00′ N. lat., 118°31.00′ W. 

long.;

(7) 32°43.00′ N. lat., 118°24.00′ W. 

long.; and

(8) 32°48.50′ N. lat., 118°18.34′ W. 

long.

(D) Santa Barbara Island

(1) 33°36.06′ N. lat., 118°57.15′ W. 

long.;

(2) 33°20.64′ N. lat., 118°59.39′ W. 

long.;

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(3) 33°23.00′ N. lat., 119°7.00′ W. 

long.;

(4) 33°43.00′ N. lat., 119°14.00′ W. 

long.;

(5) 33°46.00′ N. lat., 119°12.00′ W. 

long.; and

(6) 33°36.06′ N. lat., 118°57.15′ W. 

long.

(E) Orange County Seamount

(1) 33°25.00′ N. lat., 118°1.00′ W. 

long.;

(2) 33°25.00′ N. lat., 117°58.00′ W. 

long.;

(3) 33°23.00′ N. lat., 117°58.00′ W. 

long.;

(4) 33°23.00′ N. lat., 118°1.00′ W. 

long.; and

(5) 33°25.00′ N. lat., 118°1.00′ W. 

long.

(20) Rockfish categories. Rockfish 

(except thornyheads) are divided into 

categories north and south of 40°10′ N. 

lat., depending on the depth where they 

most often are caught: nearshore, shelf, 

or slope (scientific names appear in 

Table 2). Nearshore rockfish are further 

divided into shallow nearshore and 

deeper nearshore categories south of 

40°10′ N. lat. Trip limits are established 

for ‘‘minor rockfish’’ species according 

to these categories (see Tables 2–5).

(a) Nearshore rockfish consists 

entirely of the minor nearshore rockfish 

species listed in Table 2, which 

includes California scorpionfish.

(i) Shallow nearshore rockfish 

consists of black-and-yellow rockfish, 

China rockfish, gopher rockfish, grass 

rockfish, and kelp rockfish.

(ii) Deeper nearshore rockfish consists 

of black rockfish, blue rockfish, brown 

rockfish, calico rockfish, copper 

rockfish, olive rockfish, quillback 

rockfish, and treefish.

(iii) California scorpionfish.

(b) Shelf rockfish consists of canary 

rockfish, shortbelly rockfish, widow 

rockfish, yelloweye rockfish, yellowtail 

rockfish, bocaccio, chilipepper, cowcod, 

and the minor shelf rockfish species 

listed in Table 2.

(c) Slope rockfish consists of POP, 

splitnose rockfish, darkblotched 

rockfish, and the minor slope rockfish 

species listed in Table 2.

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B. Limited Entry Fishery

(1) General. Most species taken in 

limited entry fisheries will be managed 

with cumulative trip limits (see 

paragraph A.(1)(d),) size limits (see 

paragraph A.(6)), seasons (see paragraph 

A.(7)), and areas that are closed to 

specific gear types. The trawl fishery 

has gear requirements and trip limits 

that differ by the type of trawl gear on 

board (see paragraph A.(14)). Cowcod 

retention is prohibited in all fisheries 

and groundfish vessels operating south 

of Point Conception must adhere to CCA 

restrictions (see paragraph A.(20)). 

Yelloweye rockfish retention is 

prohibited in the limited entry fixed 

gear fisheries. Most of the management 

measures for the limited entry fishery 

are listed above and in the following 

tables: Table 3 (North), Table 3 (South), 

Table 4 (North), and Table 4 (South). A 

header in Table 3 (North), Table 3 

(South), Table 4 (North), and Table 5 

(South) approximates the Rockfish 

Conservation Area (i.e., closed area) for 

vessels participating in the limited entry 

fishery. [Note: Between a line drawn 

due south from Point Fermin (33° 42′

30’’ N. lat.; 118° 17′ 30’’ W. long.) and 

a line drawn due west from the 

Newport, South Jetty (33° 35′ 37’’ N. lat.; 

117° 52′ 50’’ W. long.,) vessels fishing 

with hook-and-line- and/or trap (or pot) 

gear may operate from shore to a 

boundary line approximating 50 fm (91 

m).]

Management measures may be 

changed during the year by 

announcement in the Federal Register. 

However, the management regimes for 

several fisheries (nontrawl sablefish, 

Pacific whiting, and black rockfish) do 

not neatly fit into these tables and are 

addressed immediately following Table 

3 (North), Table 3 (South), Table 4 

(North), and Table 4 (South).

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(2) Sablefish. The limited entry 

sablefish allocation is further allocated 

58 percent to trawl gear and 42 percent 

to nontrawl gear.

(a) Trawl trip and size limits.

Management measures for the limited 

entry trawl fishery for sablefish are 

listed in Table 3 (North) and Table 3 

(South).

(b) Nontrawl (fixed gear) trip and size 

limits. To take, retain, possess, or land 

sablefish during the primary season for 

the limited entry fixed gear sablefish 

fishery, the owner of a vessel must hold 

a limited entry permit for that vessel, 

affixed with both a gear endorsement for 

longline or trap (or pot) gear, and a 

sablefish endorsement. (See 50 CFR 

663.323(a)(2)(i).) A sablefish 

endorsement is not required to 

participate in the limited entry daily 

trip limit fishery.

(i) Primary season. The primary 

season begins at 12 noon l.t. on April 1, 

2003, and ends at 12 noon l.t. on 

October 31, 2003. There are no preseason or post-season closures. During 

the primary season, each vessel with at 

least one limited entry permit with a 

sablefish endorsement that is registered 

for use with that vessel may land up to 

the cumulative trip limit for each of the 

sablefish-endorsed limited entry permits 

registered for use with that vessel, for 

the tier(s) to which the permit(s) are 

assigned. For 2003, the following limits 

would be in effect: Tier 1, 53,000 lb 

(24,040 kg); Tier 2, 24,000 lb (10,886 

kg); Tier 3, 14,000 lb (6,350 kg). All 

limits are in round weight. If a vessel is 

registered for use with a sablefishendorsed limited entry permit, all 

sablefish taken after April 1, 2003, count 

against the cumulative limits associated 

with the permit(s) registered for use 

with that vessel.

(ii) Daily trip limit. Daily and/or 

weekly sablefish trip limits listed in 

Table 4 (North) and Table 4 (South) 

apply to any limited entry fixed gear 

vessels not participating in the primary 

sablefish season described in paragraph 

(i) of this section. North of 36° N. lat., 

the daily and/or weekly trip limits 

apply to fixed gear vessels that are not 

registered for use with a sablefishendorsed limited entry permit, and to 

fixed gear vessels that are registered for 

use with a sablefish-endorsed limited 

entry permit when those vessels are not 

fishing against their primary sablefish 

season cumulative limits. South of 36°

N. lat., the daily and/or weekly trip 

limits for taking and retaining sablefish 

that are listed in Table 4 (South) apply 

throughout the year to all vessels 

registered for use with a limited entry 

fixed gear permit.

(iii) Participating in both the primary 

and daily trip limit fisheries. A vessel 

that is eligible to participate in the 

primary sablefish season may 

participate in the daily trip limit fishery 

for sablefish once that vessel′s primary 

season sablefish limit(s) have been taken 

or after October 31, 2003, whichever 

occurs first. No vessel may land 

sablefish against both its primary season 

cumulative sablefish limits and against 

the daily trip limit fishery limits within 

the same 24 hour period of 0001 hour 

l.t. to 2400 hours l.t. If a vessel has taken 

all of its tier limit except for an amount 

that is smaller than the daily trip limit 

amount, that vessel′s subsequent 

sablefish landings are automatically 

subject to daily and/or weekly trip 

limits.

(3) Whiting. Additional regulations 

that apply to the whiting fishery are 

found at 50 CFR 660.306 and at 50 CFR 

660.323(a)(3) and (a)(4).

(a) Allocations. The non-tribal 

allocations, based on percentages that 

are applied to the commercial OY of 

121,200 mt in 2003 (see 50 CFR 660.323 

(a)(4)), are as follows:

(i) Catcher/processor sector—41,288 

mt (34 percent);

(ii) Mothership sector—29,080 mt (24 

percent);

(iii) Shore-based sector—50,904 mt 

(42 percent). No more than 5 percent 

(2,545 mt) of the shore-based whiting 

allocation may be taken before the 

shore-based fishery begins north of 42°

N. lat. on June 15, 2003.

(iv) Tribal allocation—See paragraph 

V.

(b) Seasons. The 2003 primary 

seasons for the whiting fishery start on 

the same dates as in 2002, as follows 

(see 50 CFR 660.323(a)(3)):

(i) Catcher/processor sector—May 15;

(ii) Mothership sector—May 15;

(iii) Shore-based sector—June 15 

north of 42° N. lat.; April 1 between 42°-

40°30′ N. lat.; April 15 south of 40°30′

N. lat.

(c) Trip limits. (i) Before and after the 

regular season. The ‘‘per trip’’ limit for 

whiting before and after the regular 

season for the shore-based sector is 

announced in Table 3 (North) and Table 

3 (South), as authorized at 50 CFR 

660.323(a)(3) and (a)(4). This trip limit 

includes any whiting caught shoreward 

of 100 fathoms (183 m) in the Eureka 

area.

(ii) Inside the Eureka 100 fm (183 m) 

contour. No more than 10,000 lb (4,536 

kg) of whiting may be taken and 

retained, possessed, or landed by a 

vessel that, at any time during ax fishing 

trip, fished in the fishery management 

area shoreward of the 100 fathom (183 

m) contour (as shown on NOAA Charts 

18580, 18600, and 18620) in the Eureka 

area.

(4) Black rockfish. The regulations at 

50 CFR 660.323(a)(1) state: ‘‘The trip 

limit for black rockfish (Sebastes 

melanops) for commercial fishing 

vessels using hook-and-line gear 

between the U.S.-Canada border and 

Cape Alava (48°09′30′′ N. lat.) and 

between Destruction Island (47°40′00′′

N. lat.) and Leadbetter Point (46°38′10′′

N. lat.), is 100 lb (45 kg) or 30 percent, 

by weight of all fish on board, 

whichever is greater, per vessel per 

fishing trip.’’ These ‘‘per trip’’ limits 

apply to limited entry and open access 

fisheries, in conjunction with the 

cumulative trip limits and other 

management measures listed in Tables 4 

(North) and Table 5 (North) of NMFS 

Actions. The crossover provisions at 

paragraphs A.(12) do not apply to the 

black rockfish per-trip limits.

C. Trip Limits in the Open Access 

Fishery

(1) General. Open access gear is gear 

used to take and retain groundfish from 

a vessel that does not have a valid 

permit for the Pacific Coast groundfish 

fishery with an endorsement for the gear 

used to harvest the groundfish. This 

includes longline, trap, pot, hook-andline (fixed or mobile), setnet and 

trammel net (south of 38° N. lat. only), 

and exempted trawl gear (trawls used to 

target non-groundfish species: pink 

shrimp or prawns, and, south of Pt. 

Arena, CA (38°57′30′′ N. lat.), California 

halibut or sea cucumbers). Unless 

otherwise specified, a vessel operating 

in the open access fishery is subject to, 

and must not exceed any trip limit, 

frequency limit, and/or size limit for the 

open access fishery. Groundfish species 

taken in open access fisheries will be 

managed with cumulative trip limits 

(see paragraph A.(1)(d)), size limits (see 

paragraph A.(6)), seasons (see paragraph 

A.(7)), and closed areas. Cowcod 

retention is prohibited in all fisheries 

and groundfish vessels operating south 

of Point Conception must adhere to CCA 

restrictions (see paragraph A.(19)). 

Retention of yelloweye rockfish and 

canary rockfish and, south of 40°10′ N. 

lat., bocaccio is prohibited in all open 

access fisheries. The trip limits, size 

limits, seasons, and other management 

measures for open access groundfish 

gear, including exempted trawl gear, are 

listed in Table 5 (North) and Table 5 

(South). A header in Table 5 (North) and 

Table 5 (South) approximates the 

Rockfish Conservation Area (i.e., closed 

area) for vessels participating in the 

open access fishery. [Note: Between a 

line drawn due south from Point Fermin 

(33°42′30′′ N. lat.; 118°17′30′′ W. long.) 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 929

and a line drawn due west from the 

Newport South Jetty (33°35′37′′ N. lat.; 

117°52′50′′ W. long.,) vessels fishing 

with hook-and-line and/or trap (or pot) 

gear may operate from shore to a 

boundary line approximating 50 fm (91 

m) in the months of July and August.] 

For vessels participating in exempted 

trawl fisheries, the RCAs are the same 

as those for limited entry trawl gear. 

Exempted trawl gear RCAs are detailed 

in the exempted trawl gear sections at 

the bottom of Table 5 (North) and Table 

5 (South). Retention of groundfish 

caught by exempted trawl gear is 

prohibited in the designated RCAs. The 

trip limit at 50 CFR 660.323(a)(i) for 

black rockfish caught with hook-andline gear also applies. (The black 

rockfish limit is repeated at paragraph 

B.(4).)

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(2) Groundfish taken with exempted 

trawl gear by vessels engaged in fishing 

for spot and ridgeback prawns, 

California halibut, or sea cucumbers.

[Note: The States of California and 

Washington will likely prohibit trawling 

for spot prawn beginning in 2003, while 

the State of Oregon will likely begin 

phasing out trawling for spot prawn in 

2003.] Trip limits and RCAs for 

groundfish retained in the spot and 

ridgeback prawn, California halibut, or 

sea cucumber fisheries are in Table 5 

(North) and Table 5 (South).

(a) State law. The trip limits in Table 

5(North) and Table 5(South) are not 

intended to supersede any more 

restrictive state law relating to the 

retention of groundfish taken in shrimp 

or prawn pots or traps.

(b) Participation in the California 

halibut fishery. A trawl vessel will be 

considered participating in the 

California halibut fishery if:

(i) It is not fishing under a valid 

limited entry permit issued under 50 

CFR 660.333 for trawl gear;

(ii) All fishing on the trip takes place 

south of Pt. Arena, CA, and;

(iii) The landing includes California 

halibut of a size required by California 

Fish and Game Code section 8392(a), 

which states: ‘‘No California halibut 

may be taken, possessed or sold which 

measures less than 22 in (56 cm) in total 

length, unless it weighs 4 lbs (1.8144 kg) 

or more in the round, 3 and one-half lbs 

(1.587 kg) or more dressed with the 

head on, or 3 lbs (1.3608 kg) or more 

dressed with the head off. Total length 

means ‘‘the shortest distance between 

the tip of the jaw or snout, whichever 

extends farthest while the mouth is 

closed, and the tip of the longest lobe of 

the tail, measured while the halibut is 

lying flat in natural repose, without 

resort to any force other than the 

swinging or fanning of the tail.’’

(c) Participation in the sea cucumber 

fishery. A trawl vessel will be 

considered to be participating in the sea 

cucumber fishery if:

(i) It is not fishing under a valid 

limited entry permit issued under 50 

CFR 660.333 for trawl gear;

(ii) All fishing on the trip takes place 

south of Pt. Arena, CA, and;

(iii) The landing includes sea 

cucumbers taken in accordance with 

California Fish and Game Code, section 

8405, which requires a permit issued by 

the State of California.

(3) Groundfish taken with exempted 

trawl gear by vessels engaged in fishing 

for pink shrimp. Trip limits for 

groundfish retained in the pink shrimp 

fishery are in Table 5 (North) and Table 

5 (South). Notwithstanding section 

A.(11), a vessel that takes and retains 

pink shrimp and also takes and retains 

groundfish in either the limited entry or 

another open access fishery during the 

same applicable cumulative limit period 

that it takes and retains pink shrimp 

(which may be 1 month or 2 months, 

depending on the fishery and the time 

of year), may retain the larger of the two 

limits, but only if the limit(s) for each 

gear or fishery are not exceeded when 

operating in that fishery or with that 

gear. The limits are not additive; the 

vessel may not retain a separate trip 

limit for each fishery.

D. Recreational Fishery

Federal recreational groundfish 

regulations are not intended to 

supersede any more restrictive state 

recreational groundfish regulations 

relating to federally managed 

groundfish.

(1) Washington. For each person 

engaged in recreational fishing seaward 

of Washington, the groundfish bag limit 

is 15 groundfish, including rockfish and 

lingcod, and is open year-round (except 

for lingcod). The following sublimits 

and closed areas apply:

(a) Yelloweye Rockfish Conservation 

Area. The YRCA is a ‘‘C-shaped’’ area 

which is closed to recreational 

groundfish and halibut fishing. The 

coordinates for the YRCA are defined at 

A.(19).

(b) Rockfish. In areas seaward of 

Washington that are open to recreational 

groundfish fishing, there is a 10–

rockfish per day bag limit, of which no 

more than 1 may be canary rockfish. 

Taking and retaining yelloweye rockfish 

is prohibited.

(c) Lingcod. Recreational fishing for 

lingcod is closed between January 1 and 

March 15, and between October 16 and 

December 31. In areas seaward of 

Washington that are open to recreational 

groundfish fishing and when the 

recreational season for lingcod is open 

(i.e., between March 16–October 15), 

there is a bag limit of 2 lingcod per day, 

which may be no smaller than 24 in (61 

cm) total length.

(2) Oregon. The bag limits for each 

person engaged in recreational fishing 

seaward of Oregon are 2 lingcod per 

day, which may be no smaller than 24 

in (61 cm) total length; and 10 marine 

fish per day, which excludes salmon, 

tuna, surfperch, sanddab, lingcod, and 

baitfish, but which includes rockfish 

and other groundfish. The minimum 

size limit for cabezon retained in the 

recreational fishery is 15 in (38 cm). 

Within the 10 marine fish bag limit, no 

more than 1 may be canary rockfish, no 

more than 1 may be yelloweye rockfish 

and when the all-depth recreational 

fisheries for Pacific halibut 

(Hippoglossus stenolopis) are open, the 

first Pacific halibut taken of 32 in (81 

cm) or greater in length may be retained. 

During the all-depth recreational 

fisheries for Pacific halibut, vessels with 

halibut on board may not take, retain, 

possess or land yelloweye rockfish or 

canary rockfish.

(3) California. Seaward of California 

(north and south of 40°10′ N. lat.), 

California law provides that, in times 

and areas when the recreational fishery 

is open, there is a 20–fish bag limit for 

all species of finfish, within which no 

more than 10 fish of any one species 

may be taken or possessed by any one 

person. Retention of cowcod is 

prohibited in California′s recreational 

fishery all year in all areas.

(a) North of 40°10′ N. lat. North of 

40°10′ N. lat. to the California/Oregon 

border, California′s recreational 

groundfish fishery will generally 

conform with Oregon′s recreational 

regulations (see D.(2)). For each person 

engaged in recreational fishing seaward 

of California north of 40°10′ N. lat., the 

following seasons, bag limits, and size 

limits apply:

(i) RCG Complex. The California 

rockfish, cabezon, greenling complex 

(RCG Complex), as defined in state 

regulation (Section 1.91, Title 14, 

California Code of Regulations), 

includes all rockfish, kelp greenling, 

rock greenling, and cabezon. This 

category does not include California 

scorpionfish, also known as ‘‘sculpin.’’

(A) Seasons. North of 40°10′ N. lat., 

recreational fishing for the RCG 

Complex is open from January 1 through 

December 31.

(B) Bag limits, boat limits, hook limits.

North of 40°10′ N. lat., the bag limit is 

10 rockfish per day, of which no more 

than 2 may be bocaccio, 1 may be 

canary rockfish, and no more than 1 per 

day up to a maximum of two per boat 

may be yelloweye rockfish. The 

following daily bag limits also apply: no 

more than 10 cabezon per day and no 

more than 10 greenlings (kelp and/or 

rock greenlings) per day. Multi-day 

limits are authorized by a valid permit 

issued by California and must not 

exceed the daily limit multiplied by the 

number of days in the fishing trip.

(C) Size limits. The following size 

limits apply: cabezon may be no smaller 

than 15 in (38 cm) total length and kelp 

and rock greenling may be no smaller 

than 12 in (30 cm) total length.

(D) Dressing/filleting. Cabezon, kelp 

greenling, and rock greenling taken in 

the recreational fishery may not be 

filleted at sea. Rockfish skin may not be 

removed when filleting or otherwise 

dressing rockfish taken in the 

recreational fishery. Brown-skinned 

932 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

rockfish fillets may be no smaller than 

6.5 in (16.6 cm). ‘‘Brown-skinned’’

rockfish include the following species: 

brown, calico, copper, gopher, kelp, 

olive, speckled, squarespot, and 

yellowtail.

(ii) Lingcod.

(A) Seasons. North of 40°10′ N. lat., 

recreational fishing for lingcod is open 

from January 1 through December 31.

(B) Bag limits, boat limits, hook limits.

North of 40°10′ N. lat., the bag limit is 

2 lingcod per day. Multi-day limits are 

authorized by a valid permit issued by 

California and must not exceed the daily 

limit multiplied by the number of days 

in the fishing trip.

(C) Size limits. Lingcod may be no 

smaller than 24 in (61 cm) total length.

(D) Dressing/fileting. Lingcod filets 

may be no smaller than 16 in. (41 cm) 

in length .

(b) South of 40°10′ N. lat. For each 

person engaged in recreational fishing 

seaward of California south of 40°10′ N. 

lat., the following seasons, bag limits, 

size limits and closed areas apply:

(i) Closed Areas.

(A) Cowcod Conservation Areas.

Recreational fishing for groundfish is 

prohibited within the CCAs, for 

coordinates described in Federal 

regulations at 50 CFR 660.304(c), except 

that fishing for sanddabs is permitted 

subject to the provisions in paragraph 

D.(3)(iv) and that fishing for species 

managed under this section (not 

including cowcod, bocaccio, canary, 

and yelloweye rockfishes) is permitted 

in waters shoreward of the 20- fm (37–

m) depth contour within the CCAs from 

July 1 through December 31, 2003, 

subject to the bag limits in this section.

(B) South of 40°10′ N. lat., recreational 

fishing for all groundfish, including 

lingcod, is prohibited seaward of the 

20–fm (37–m) depth contour, except 

that recreational fishing for sanddabs is 

permitted seaward of the 20–fm (37–m) 

depth contour subject to the provisions 

in paragraph D.(3)(iv).

(ii) RCG Complex. The California 

rockfish, cabezon, greenling complex 

(RCG Complex), as defined in state 

regulations (Section 1.91, Title 14, 

California Code of Regulations), 

includes all rockfish, kelp greenling, 

rock greenling, and cabezon. This 

category does not include California 

scorpionfish, also known as ‘‘sculpin.’’

(A) Seasons. South of 40°10′ N. lat., 

recreational fishing for the RCG 

Complex is open from July 1 through 

December 31 (i.e., it′s closed from 

January 1 through June 30). When 

recreational fishing for the RCG 

Complex is open, it is permitted only 

inside the 20–fm (37–m) depth contour, 

subject to the bag limits in paragraph (B) 

of this section.

(B) Bag limits, boat limits, hook limits.

South of 40°10′ N. lat., in times and 

areas when the recreational season for 

the RCG Complex is open, there is a 

limit of 2–hooks and one line when 

fishing for rockfish, and the bag limit is 

10 RCG Complex fish per day, of which 

up to 10 may be rockfish, no more than 

2 of which may be shallow nearshore 

rockfish. [Note: The shallow nearshore 

rockfish group off California are 

composed of kelp, grass, black-andyellow, China, and gopher rockfishes.] 

Also within the 10 RCG Complex fish 

per day limit, no more than 2 

groundfish per day may be greenlings 

(kelp and/or rock greenlings) and no 

more than 3 groundfish per day may be 

cabezon. Lingcod, California 

scorpionfish, and sanddabs taken in 

recreational fisheries off California do 

not count toward the 10 RCG Complex 

fish per day bag limit. Multi-day limits 

are authorized by a valid permit issued 

by California and must not exceed the 

daily limit multiplied by the number of 

days in the fishing trip.

(C) Size limits. The following size 

limits apply: cabezon may be no smaller 

than 15 in (38 cm) and kelp and rock 

greenling may be no smaller than 12 in 

(30 cm).

(D) Dressing/filleting. Cabezon, kelp 

greenling, and rock greenling taken in 

the recreational fishery may not be 

filleted at sea. Rockfish skin may not be 

removed when filleting or otherwise 

dressing rockfish taken in the 

recreational fishery. Brown-skinned 

rockfish filets may be no smaller than 

6.5 in (16.6 cm). ‘‘Brown-skinned’’

rockfish include the following species: 

brown, calico, copper, gopher, kelp, 

olive, speckled, squarespot, and 

yellowtail.

(iii) California scorpionfish. California 

scorpionfish only occur south of 40°10′

N. lat. (A) Seasons. South of 40°10′ N. 

lat., recreational fishing for California 

scorpionfish is closed from March 1 

through June 30 (i.e., the California 

scorpionfish season is open during 

January-February and during JulyDecember). When recreational fishing 

for California scorpionfish is open, it is 

permitted only inside the 20–fm (37–m) 

depth contour (except at Huntington 

Flats between a line drawn due south 

from Point Fermin (33 42′30’’ N. lat.; 

118 17′30’’ W. long.) and a line drawn 

due west from the Newport South Jetty 

(33 35′37’’ N. lat.; 117 52′50’’ W. long.,) 

recreational fishing for California 

scorpionfish may occur from shore to a 

boundary line approximating 50–fm 

(91–m) during July-August), subject to 

the bag limits in paragraph (B) of this 

section.

(B) Bag limits, boat limits, hook limits.

South of 40°10′ N. lat., in times and 

areas where the recreational season for 

California scorpionfish is open, and the 

bag limit is 5 California scorpionfish per 

day. California scorpionfish do not 

count against the 10 RCG Complex fish 

per day limit. Multi-day limits are 

authorized by a valid permit issued by 

California and must not exceed the daily 

limit multiplied by the number of days 

in the fishing trip.

(C) Size limits. California scorpionfish 

may be no smaller than 10 in (25 cm) 

total length.

(D) Dressing/filleting. California 

scorpionfish fillets may be no smaller 

than 5 in (12.8 cm).

(iv) Lingcod. (A) Seasons. South of 

40°10′ N. lat., recreational fishing for 

lingcod is open July 1 through 

December 31. When recreational fishing 

for lingcod is open in the south, it is 

permitted only inside the 20 fm (37 m) 

depth contour, subject to the bag limits 

in paragraph (B) of this section.

(B) Bag limits, boat limits, hook limits.

South of 40°10′ N. lat., in times and 

areas when the recreational season for 

lingcod is open, there is a limit of 2–

hooks and one line when fishing for 

lingcod, and the bag limit is 2 lingcod 

per day. Lingcod do not count against 

the 10 RCG Complex fish per day limit. 

Multi-day limits are authorized by a 

valid permit issued by California and 

must not exceed the daily limit 

multiplied by the number of days in the 

fishing trip.

(C) Size limits. Lingcod may be no 

smaller than 24 in (61 cm) total length.

(D) Dressing/filleting. Lingcod fillets 

may be no smaller than 16 in. (41 cm) 

in length.

(iv) Sanddabs. South of 40°10′ N. lat., 

recreational fishing for sanddabs is 

permitted both shoreward and seaward 

of the 20–fm (37–m) depth contour (i.e., 

recreational fishing for sanddabs is 

permitted in all areas south of 40°10′ N. 

lat.). Recreational fishing for sanddabs is 

permitted seaward of the 20- fm (37–m) 

depth contour subject to a limit of up to 

5–hooks ‘‘Number 2’’ or smaller, which 

measure 11 mm (0.44 inches) point to 

shank, and up to 1 lb (45 kg) of weight 

per line. There is no bag limit, season, 

or size limit for sanddabs, however, it is 

prohibited to fillet sanddabs at sea.

V. Washington Coastal Tribal Fisheries

The legal basis for and background 

information on groundfish allocations 

harvest by the four Washington Coastal 

Tribes (Makah, Quileute, Hoh, and 

Quinault) with treaty rights to 

groundfish is described in the proposed 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 933

rule to implement the 2003 groundfish 

specifications and management 

measures in the Proposed Rules section 

of the January 7, 2003 issue of the 

Federal Register.

The Assistant Administrator (AA) 

announces the following tribal 

allocations for 2003, including those 

that are the same as in 2002. Trip limits 

for certain species were recommended 

by the tribes and the Council and are 

specified here with the tribal 

allocations.

A. Sablefish

The tribal allocation is 631 mt, 10 

percent of the total catch OY, less 3 

percent estimated discard mortality.

B. Rockfish

(1) For the commercial harvest of 

black rockfish off Washington State, a 

harvest guideline of: 20,000 lb (9,072 kg) 

north of Cape Alava (48°09′30’’ N. lat.) 

and 10,000 lb (4,536 kg) between 

Destruction Island (47°40′00’’ N. lat.) 

and Leadbetter Point (46°38′10’’ N. lat.).

(2) Thornyheads are subject to a 300–

lb (136–kg) trip limit.

(3) Canary rockfish are subject to a 

300–lb (136–kg) trip limit.

(4) Yelloweye rockfish are subject to 

a 100–lb (45–kg) trip limit.

(5) Yellowtail rockfish taken in the 

tribal mid-water trawl fisheries are 

subject to a cumulative limit of 30,000 

lb (13,608 kg) per two-month period. 

Landings of widow rockfish must not 

exceed 10 percent of the weight of 

yellowtail rockfish landed in any twomonth period. These limits may be 

adjusted by an individual tribe inseason 

to minimize the incidental catch of 

canary rockfish and widow rockfish.

(6) Other rockfish, including minor 

nearshore, minor shelf, and minor slope 

rockfish groups are subject to a 300–lb 

(136–kg) trip limit per species or species 

group, or to the non-tribal limited entry 

trip limit for those species if those limits 

are less restrictive than 300–lb (136–kg) 

per trip.

(7) Rockfish taken during open 

competition tribal commercial fisheries 

for Pacific halibut will not be subject to 

trip limits.

C. Lingcod

Lingcod are subject to a 300–lb (136–

kg) daily trip limit and a 900–lb (408–

kg) weekly limit.

D. Pacific whiting

The tribal allocation is 25,000 mt.

Classification

These final management measures for 

January 1 through February 28, 2003 are 

issued under the authority of, and are in 

accordance with, the Magnuson-Stevens 

Act and 50 CFR parts 600 and 660 

subpart G (the regulations implementing 

the FMP).

The AA finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment on this 

action pursuant to 5 U.S.C. 553(b)(B), 

because providing prior notice and 

comment would be impracticable and 

contrary to the public interest.

The January-February management 

measures are intended to protect 

overfished and other depressed stocks 

while also allowing as much harvest of 

healthy stocks as possible. As explained 

above, delay in implementation of these 

regulatory measures could cause harm 

to some stocks and would require 

unnecessarily restrictive measures later 

in the year to make up for the late 

implementation. Because the 2002 

measures are not strict enough, leaving 

these measures in place could cause 

harm to some stocks. Much of the data 

necessary for these specifications and 

management measures came from the 

2002 fishing year and new stock 

assessments were not available until 

June. Because of the timing of the 

receipt, development, review, and 

analysis of the fishery information 

necessary for setting the initial 

specifications and management 

measures, it is impracticable and 

contrary to the public interest to publish 

these measures in the Federal Register

and to take public comment on the 

measures prior to January 1, 2002. It 

would be impracticable because, as 

explained above, providing prior notice 

would delay the effective date of these 

measures and the January-February 

2002 measures would remain in place. 

Because the 2002 measures are not 

conservative enough, they do not meet 

the Council′s rebuilding goals for 2003. 

Leaving the 2002 measures in place for 

2003 could cause harm to some stocks.

For the reasons above, the AA also 

finds good cause under 5 U.S.C. 553(d) 

to waive the requirement to delay for 30 

days the effective date of the rule.

Because there is no requirement to 

provide for prior notice and opportunity 

for public comment on this rule the 

analytical requirements of the 

Regulatory Flexibility Act do not apply. 

However, as described above, the 

January-February 2003 management 

measures are based on the overall 

analysis underlying the 2003 

specifications and March-December 

2003 management measures which are 

proposed in the Proposed Rules section 

of this issue of the Federal Register. The 

Council′s Initial Regulatory Flexibility 

analysis prepared for the 2003 

specifications and management 

measures considers the effects of the 

January and February management 

measures on the fisheries.

This action has been determined to be 

not significant for purposes of Executive 

Order 12866.

Pursuant to Executive Order 13175, 

this emergency rule was developed after 

meaningful consultation and 

collaboration with tribal officials from 

the area covered by the FMP. Under the 

Magnuson-Stevens Act at 16 U.S.C. 

1852(b)(5), one of the voting members of 

the Council must be a representative of 

an Indian tribe with federally 

recognized fishing rights from the area 

of the Council′s jurisdiction. In 

addition, regulations implementing the 

FMP establish a procedure by which the 

tribes with treaty fishing rights in the 

area covered by the FMP request new 

allocation or regulations specific to the 

tribes, in writing, before the first of the 

two autumn groundfish meetings of the 

Council. The regulation at 50 CFR 

660.324(d) further states ‘‘the Secretary 

will develop tribal allocations and 

regulations under this paragraph in 

consultation with the affected tribe(s) 

and, insofar as possible, with tribal 

consensus.’’ The tribal management 

measures in this final rule have been 

developed following these procedures. 

The tribal representative on the Council 

made a motion to adopt the tribal 

management measures, which was 

passed by the Council, and those 

management measures, which were 

developed and proposed by the tribes, 

are included in this emergency rule.

NMFS issued Biological Opinions 

(BOs) under the Endangered Species Act 

on August 10, 1990, November 26, 1991, 

August 28, 1992, September 27, 1993, 

May 14, 1996, and December 15, 1999, 

pertaining to the effects of the 

groundfish fishery on chinook salmon 

(Puget Sound, Snake River spring/

summer, Snake River fall, upper 

Columbia River spring, lower Columbia 

River, upper Willamette River, 

Sacramento River winter, Central 

Valley, California coastal), coho salmon 

(Central California coastal, southern 

Oregon/northern California coastal, 

Oregon coastal), chum salmon (Hood 

Canal, Columbia River), sockeye salmon 

(Snake River, Ozette Lake), and 

steelhead (upper, middle and lower 

Columbia River, Snake River Basin, 

upper Willamette River, central 

California coast, California Central 

Valley, south-central California, 

northern California, and southern 

California).

During the 2000 Pacific whiting 

season, the whiting fisheries exceeded 

the chinook bycatch amount specified 

in the Pacific whiting fishery′s 

934 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 

Biological Opinion′s (whiting BO) 

(December 19, 1999) incidental catch 

statement estimate of 11,000 fish, by 

approximately 500 fish. In the 2001 

whiting season, however, the whiting 

fishery’s chinook bycatch was about 

7,000 fish, which approximates the 

long-term average. After reviewing data 

from, and management of, the 2000 and 

2001 whiting fisheries (including 

industry bycatch minimization 

measures), the status of the affected 

listed chinook, environmental baseline 

information, and the incidental catch 

statement from the 1999 whiting BO, 

NMFS determined in a letter dated 

April 25, 2002, that a re-initiation of the 

1999 whiting BO was not required. 

NMFS has concluded that 

implementation of the FMP for the 

Pacific Coast groundfish fishery is not 

expected 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. This action is within the 

scope of these consultations.

Because prior notice and opportunity 

for public comment are not required for 

this emergency rule by 5 U.S.C. 553, or 

any other law, the analytical 

requirements of the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq., are 

inapplicable. However, as described 

above, the January-February 2003 

management measures are based on the 

overall analysis underlying the 2003 

specifications and March-December 

2003 management measures which are 

proposed in the Proposed Rules section 

of this issue of the Federal Register. The 

Council’s Initial Regulatory Flexibility 

analysis prepared for the 2003 

specifications and management 

measures considers the effects of the 

January and February management 

measures on the fisheries.

List of Subjects in 50 CFR Part 660

Administrative practice and 

procedure, American Samoa, Fisheries, 

Fishing, Guam, Hawaiian Natives, 

Indians, Northern Mariana Islands, 

Reporting and recordkeeping 

requirements.

Dated: December 20, 2002.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service.

For the reasons set out in the 

preamble, 50 CFR part 660 is amended 

as follows:

PART 660—FISHERIES OFF WEST 

COAST STATES AND IN THE 

WESTERN PACIFIC

l. The authority citation for part 660 

continues to read as follows:

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

2. In § 660.302, the definition for 

‘‘Open access fishery’’ is suspended and 

a definition for ‘‘Open access fishery 

(for the period January 1, 2003 to 

February 28, 2003)’’ is temporarily 

added to read as follows:

§ 660.302 Definitions.

* * * * *

Open access fishery (for the period 

January 1, 2003 to February 28, 2003)

means the fishery composed of vessels 

using open access gear fished pursuant 

to the harvest guidelines, quotas, and 

other management measures governing 

the open access fishery. Any 

commercial fishing vessels that does not 

have a limited entry permit and which 

lands groundfish in any commercial 

fishery is a participant in the open 

access fishery.

* * * * *

3. In § 660.304, paragraphs (a) through 

(f) are suspended and paragraphs (g) 

through (j) are temparily added to read 

as follows:

§ 660.304 Management areas.

* * * * *

(g) Management areas—(1) 

Vancouver. (i) The northeastern 

boundary is that part of a line 

connecting the light on Tatoosh Island, 

WA, with the light on Bonilla Point on 

Vancouver Island, British Columbia (at 

48 deg.35′75′′ N. lat., 124 deg.43′00′′ W. 

long.) south of the International 

Boundary between the U.S. and Canada 

(at 48 deg.29′37.19′′ N. lat., 124 

deg.43′33.19′′ W. long.), and north of the 

point where that line intersects with the 

boundary of the U.S. territorial sea.

(ii) The northern and northwestern 

boundary is a line connecting the 

following coordinates in the order 

listed, which is the provisional 

international boundary of the EEZ as 

shown on NOAA/NOS Charts #18480 

and #18007:

Point N. lat. W. long. 

1 ............................................................................................................................................... 48 deg.29′37.19′′ 124 deg.43′33.19′′

2 ............................................................................................................................................... 48 deg.30′11′′ 124 deg.47′13′′

3 ............................................................................................................................................... 48 deg.30′22′′ 124 deg.50′21′′

4 ............................................................................................................................................... 48 deg.30′14′′ 124 deg.54′52′′

5 ............................................................................................................................................... 48 deg.29′57′′ 124 deg.59′14′′

6 ............................................................................................................................................... 48 deg.29′44′′ 125 deg.00′06′′

7 ............................................................................................................................................... 48 deg.28′09′′ 125 deg.05′47′′

8 ............................................................................................................................................... 48 deg.27′10′′ 125 deg.08′25′′

9 ............................................................................................................................................... 48 deg.26′47′′ 125 deg.09′12′′

10 ............................................................................................................................................. 48 deg.20′16′′ 125 deg.22′48′′

11 ............................................................................................................................................. 48 deg.18′22′′ 125 deg.29′58′′

12 ............................................................................................................................................. 48 deg.11′05′′ 125 deg.53′48′′

13 ............................................................................................................................................. 47 deg.49′15′′ 126 deg.40′57′′

14 ............................................................................................................................................. 47 deg.36′47′′ 127 deg.41′23′′

15 ............................................................................................................................................. 47 deg.22′00′′ 127 deg.41′23′′

16 ............................................................................................................................................. 46 deg.42′05′′ 128 deg.51′56′′

17 ............................................................................................................................................. 46 deg.31′47′′ 129 deg.07′39′′

(iii) The southern limit is 47 deg.30′

N. lat.

(2) Columbia. (i) The northern limit is 

47 deg.30′ N. lat.

(ii) The southern limit is 43 deg.00′ N. 

lat.

(3) Eureka. (i) The northern limit is 43 

deg.00′ N. lat.

(ii) The southern limit is 40 deg.30′ N. 

lat.

(4) Monterey. (i) The northern limit is 

40 deg.30′ N. lat.

(ii) The southern limit is 36 deg.00′ N. 

lat.

(5) Conception. (i) The northern limit 

is 36 deg.00′ N. lat.

(ii) The southern limit is the U.S.–

Mexico International Boundary, which 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Rules and Regulations 935

is a line connecting the following 

coordinates in the order listed:

Point N. lat. W. long. 

1 ............................................................................................................................................... 32 deg.35′22′′ 117 deg.27′49′′

2 ............................................................................................................................................... 32 deg.37′37′′ 117 deg.49′31′′

3 ............................................................................................................................................... 31 deg.07′58′′ 118 deg.36′18′′

4 ............................................................................................................................................... 30 deg.32′31′′ 121 deg.51′58′′

(h) Commonly used geographic 

coordinates—

(1) Cape Falcon, OR--45°46′ N. lat.

(2) Cape Lookout, OR--45°20′15′′ N. 

lat.

(3) Cape Blanco, OR--42°50′ N. lat.

(4) Cape Mendocino, CA--40°30′ N. 

lat.

(5) North/South management line--

40°10′ N. lat.

(6) Point Arena, CA--38°57′30′′ N. lat.

(7) Point Conception, CA--34°27’ N. 

lat.

(i) Cowcod Conservation Areas 

(CCAs). (1) The Western CCA is an area 

south of Point Conception that is bound 

by straight lines connecting all of the 

following points in the order listed:

33°50′ N. lat., 119°30′ W. long.;

33°50′ N. lat., 118°50′ W. long.;

32°20′ N. lat., 118°50′ W. long.;

32°20′ N. lat., 119°37′ W. long.;

33°00′ N. lat., 119°37′ W. long.;

33°00′ N. lat., 119°53′ W. long.;

33°33′ N. lat., 119°53′ W. long.;

33°33′ N. lat., 119°30′ W. long.;

and connecting back to 33°50′ N. lat., 

119°30′ W. long.

(2) The Eastern CCA is a smaller area 

west of San Diego that is bound by 

straight lines connecting all of the 

following points in the order listed:

32°42′ N. lat., 118°02′ W. long.;

32°42′ N. lat., 117°50′ W. long.;

32°36′42′′ N. lat., 117°50′ W. long.;

32°30′ N. lat., 117°53′30′′ W. long.;

32°30′ N. lat., 118°02′ W. long.;

and connecting back to 32°42′ N. lat., 

118°02′ W. long.

(j) International boundaries. (1) Any 

person fishing subject to this subpart is 

bound by the international boundaries 

described in this section, 

notwithstanding any dispute or 

negotiation between the United States 

and any neighboring country regarding 

their respective jurisdictions, until such 

time as new boundaries are established 

or recognized by the United States.

(2) The inner boundary of the fishery 

management area is a line coterminous 

with the seaward boundaries of the 

States of Washington, Oregon, and 

California (the ‘‘3-mile limit’’).

(3) The outer boundary of the fishery 

management area is a line drawn in 

such a manner that each point on it is 

200 nm from the baseline from which 

the territorial sea is measured, or is a 

provisional or permanent international 

boundary between the United States and 

Canada or Mexico.

* * * * *

4. In § 660.322, paragraph (b)(5) is 

suspended and paragraphs (b)(6) and 

(b)(7) are temporarily added to read as 

follows:

§ 660.322 Gear restrictions.

* * * * *

(b) * * *

(6) Large and small footrope trawl 

gear. Large footrope trawl gear is bottom 

trawl gear, as specified at § 660.302, 

with a footrope diameter larger than 8 

inches (20 cm) (including rollers, 

bobbins or other material encircling or 

tied along the length of the footrope). 

Small footrope trawl gear is bottom 

trawl gear, as specified at § 660.302 and 

660.322(b), with a footrope diameter 8 

inches (20 cm) or smaller (including 

rollers, bobbins or other material 

encircling or tied along the length of the 

footrope). Chafing gear may be used 

only on the last 50 meshes of a small 

footrope trawl, measured from the 

terminal (closed) end of the codend. 

Other lines or ropes that run parallel to 

the footrope may not be augmented or 

modified to violate footrope size 

restrictions. For enforcement purposes, 

the footrope will be measured in a 

straight line from the outside edge to the 

opposite outside edge at the widest part 

on any individual part, including any 

individual disk, roller, bobbin, or any 

other device.

(7) Pelagic or ‘‘midwater’’ trawls.

Pelagic trawl nets must have 

unprotected footropes at the trawl 

mouth, and must not have rollers, 

bobbins, tires, wheels, rubber discs, or 

any similar device anywhere in the net. 

The footrope of pelagic gear may not be 

enlarged by encircling it with chains or 

by any other means. Ropes or lines 

running parallel to the footrope of 

pelagic trawl gear must be bare and may 

not be suspended with chains or any 

other materials. Sweeplines, including 

the bottom leg of the bridle, must be 

bare. For at least 20 ft (6.15 m) 

immediately behind the footrope or 

headrope, bare ropes or mesh of 16–inch 

(40.6–cm) minimum mesh size must 

completely encircle the net. A band of 

mesh (a ‘‘skirt’’) may encircle the net 

under transfer cables, lifting or splitting 

straps (chokers), but must be: Over 

riblines and restraining straps; the same 

mesh size and coincide knot-to-knot 

with the net to which it is attached; and 

no wider than 16 meshes.

* * * * *

[FR Doc. 02–32755 Filed 12–31–02; 1:23 pm]

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936 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 660

[Docket No. 021209300–2300–01; I.D. 

112502C]

RIN 0648–AQ18

Magnuson-Stevens Act Provisions; 

Fisheries off West Coast States and in 

the Western Pacific; Pacific Coast 

Groundfish Fishery; Annual 

Specifications and Management 

Measures

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; request for 

comments.

SUMMARY: NMFS proposes a rule to 

implement the 2003 fishery 

specifications and management 

measures for groundfish taken in the 

U.S. exclusive economic zone (EEZ) and 

State waters off the coasts of 

Washington, Oregon, and California. 

The proposed rule includes the levels of 

the acceptable biological catch (ABC) 

and optimum yields (OYs). The 

commercial OYs (the total catch OYs 

reduced by tribal allocations and by 

amounts expected to be taken in 

recreational and compensation fisheries, 

which is when a portion of the OY for 

a groundfish species is used as whole or 

partial compensation for resource 

surveys that were conducted using 

private vessels) proposed in this rule 

would be allocated between the limited 

entry and open access fisheries and 

between different sectors of the limited 

entry fleet. Proposed management 

measures for 2003 are intended to 

prevent overfishing; rebuild overfished 

species; reduce and minimize the 

bycatch and discard of overfished and 

depleted stocks; provide equitable 

harvest opportunity for both 

recreational and commercial sectors; 

and, within the commercial fisheries, 

achieve harvest guidelines and limited 

entry and open access allocations to the 

extent practicable.

DATES: Comments must be received no 

later than 5 p.m., local time (l.t.,) on 

February 6, 2003.

ADDRESSES: Send comments to D. Robert 

Lohn, Administrator, Northwest Region 

(Regional Administrator), NMFS, 7600 

Sand Point Way N.E., Bldg. 1, Seattle, 

WA 98115–0070, or fax to 206–526–

6736; or Rodney McInnis, Acting 

Administrator, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213, or 

fax to 562–980–4047. Comments will 

not be accepted if submitted via e-mail 

or the internet. Information relevant to 

this proposed rule, which includes a 

draft environmental impact statement, is 

available for public review during 

business hours at the office of the 

Pacific Fishery Management Council 

(Council), at 7700 NE Ambassador 

Place, Portland, OR 97220, phone: 503–

820–2280. Copies of additional reports 

referred to in this document may also be 

obtained from the Council.

FOR FURTHER INFORMATION CONTACT:

Yvonne deReynier or Becky Renko 

(Northwest Region, NMFS), phone: 206–

526–6140; fax: 206–526–6736 and; email: yvonne.dereynier@noaa.gov, 

becky.renko@noaa.gov or Svein Fougner 

(Southwest Region, NMFS) phone: 562–

980–4000; fax: 562–980–4047 and; email: svein.fougner@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

The proposed rule also is accessible 

via the Internet at the Office of the 

Federal Register’s website at http://

www.access.gpo.gov/suldocs/aces/

aces140.html. Background information 

and documents are available at the 

NMFS Northwest Region website at 

http://www.nwr.noaa.gov/1sustfsh/

gdfsh01.htm and at the Council’s 

website at http://www.pcouncil.org.

Background

The Pacific Coast Groundfish Fishery 

Management Plan (FMP) requires that 

fishery specifications for groundfish be 

annually evaluated, and revised as 

necessary, that OYs be specified for 

species or species groups in need of 

particular protection, and that 

management measures designed to 

achieve the OYs be published in the 

Federal Register and made effective by 

January 1, the beginning of the fishing 

year. The Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) and the FMP 

require that NMFS implement actions to 

prevent overfishing and to rebuild 

overfished stocks.

Throughout 2002, the Council has 

been developing revisions to its 

specifications and management 

measures process, through proposed 

Amendment 17 to the FMP. Among 

other procedural changes, Amendment 

17 would revise the NMFS publication 

process for the specifications and 

management measures. Historically, the 

Council has developed annual 

specifications and management 

measures in a public two-meeting 

process (formerly at its September and 

November meetings) followed by a 

NMFS final action published in the 

Federal Register and made available for 

public comment and correction after the 

effective date of the action. Each year, 

specifications and management 

measures were effective until the 

specifications and management 

measures for the following year were 

published and effective. In 2001, the 

agency was challenged on this process 

in Natural Resources Defense Council, 

Inc. v. Evans, 168 F.Supp. 2d 1149 

(N.D.Cal., 2001) and the Court ordered 

NMFS to provide prior public notice 

and allow public comment on the 

annual specifications through 

publication of proposed and final rules.

Amendment 17 was recently adopted 

by the Council, but has not yet been 

submitted for NMFS for approval. 

NMFS must still comply with the 

Court’s Order for a public notice and 

comment period on the 2003 

specifications and management 

measures. The Council had its initial 

meeting regarding these measures in 

June, and finalized its 2003 

specifications and management 

measures recommendations at its 

September 9–13, 2002, meeting in 

Portland, OR. The Council could not act 

earlier in the year because the new 

science upon which the specifications 

and management measures were based 

was not ready until June.

For 2003, the Council has 

recommended implementing depthbased management measures, with large 

closed areas intended to prevent vessels 

from operating in waters where 

overfished species are commonly found. 

NMFS and the Council felt that these 

management changes were significant 

enough to warrant analysis via an 

environmental impact statement (EIS). 

An EIS is a National Environmental 

Policy Act analysis document that 

requires a series of public review and 

comment periods at different document 

drafting stages. Given the complexity of 

the annual specifications and 

management measures and the need for 

EIS-related public review periods, 

NMFS did not have enough time to 

publish a proposed rule, receive public 

comments, and implement a final rule 

by January 1, 2003. NMFS is publishing 

this proposed rule for the entire 2003 

specifications and management 

measures package to comply with the 

Court’s Order to make such regulatory 

packages available for public comment 

prior to implementation. To ensure that 

adequately conservative management 

measures are in place by January 1, 

2003, NMFS has also published an 

emergency rule in the Final Rules

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 937

section of this January 7, 2003 edition 

that implements groundfish 

management measures for January 1 

through February 28, 2003.

Specifications and management 

measures proposed for 2003 are 

designed to rebuild overfished stocks 

through constraining direct and 

incidental mortality, and to achieve as 

much of the OYs as practicable for 

healthier groundfish stocks managed 

under the FMP.

I. Proposed Specifications

Proposed fishery specifications 

include ABCs, the designation of OYs 

(which may be represented by harvest 

guidelines (HGs) or quotas for species 

that need individual management), and 

the allocation of commercial OYs 

between the open access and limited 

entry segments of the fishery. These 

specifications include fish caught in 

State ocean waters (0–3 nautical miles 

(nm) offshore) as well as fish caught in 

the EEZ (3–200 nm offshore). 

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BILLING CODE 3510–22–C

ABC Policy and Overfishing

Each fishing year, the Council 

evaluates the biological condition of the 

Pacific Coast groundfish fishery, 

develops estimates of the ABC for major 

groundfish stocks and identifies the 

harvest levels or OYs for the species or 

species groups that it proposes to 

manage.

The Magnuson-Stevens Act requires 

that the FMP prevent overfishing. 

Overfishing is defined in the National 

Standards Guidelines (50 CFR part 600, 

subpart D) as exceeding the fishing 

mortality rate (F) needed to produce 

maximum sustainable yield (MSY) on a 

continuing basis. When setting the 2003 

ABCs, the Council maintained a policy 

of using a default harvest rate as a proxy 

for the fishing mortality rate that is 

expected to achieve the maximum 

sustainable yield (Fmsy). The OYs were 

then set at levels expected to prevent 

overfishing, equal to or less than the 

ABCs.

The ABC for a species or species 

group is generally derived by 

multiplying the harvest rate proxy by 

the biomass forecast to be available to 

the fishery. In 2003, the following 

default harvest rates proxies, based on 

the Council’s Scientific and Statistical 

Committee (SSC) recommendations, 

were used: F40% for flatfish and F50% 

for rockfish (including thornyheads), 

and F45% for other groundfish such as 

sablefish, and lingcod. For whiting the 

Council chose a harvest rate proxy of 

F45% which was more conservative 

than the SSC’s F40% recommendation. 

The FMP allows default harvest rate 

proxies to be modified as scientific data 

improves for a particular species.

A harvest or fishing mortality rate can 

mean very different things for different 

stocks, because the rate is dependent on 

the productivity of a particular species. 

For more resilient stocks, those with 

less of a decline in recruitment (a 

measure of the young fish that mature 

and enter the fishery) as the spawning 

stock declines, a higher fishing 

mortality rate may be used, such as 

F40%. A rate of F40% can be explained 

as that which reduces spawning 

potential per female to 40 percent of 

what it would have been under natural 

conditions (if there were no mortality 

due to fishing), and is therefore a more 

aggressive harvest rate than F45% or 

F50%. Harvest rate policies must 

account for several complicating factors, 

including the relative fecundity of 

mature individuals over time and the 

optimal stock size for the highest level 

of productivity within that stock.

For some groundfish species, there 

may be little or no detailed biological 

data available on which to base ABCs, 

with only rudimentary assessments 

being prepared. For other species, ABC 

levels may be established only on the 

basis of historical landings. 

Precautionary measures continue to be 

taken when setting ABCs and OYs for 

species with no or only rudimentary 

assessments.

In 2000, the Council adopted a more 

precautionary ABC policy for stocks 

with less rigorous or rudimentary stock 

assessments. The policy had been to 

assume that fishing mortality was equal 

to natural mortality (F=M); the current 

policy is that fishing mortality is 75 

percent of natural mortality (F=0.75M). 

Based on SSC recommendations, the 

Council reaffirmed this policy, but 

added another precautionary 

adjustment, requiring that OYs for these 

stocks be set at 75 percent of ABCs. For 

further information on this policy, see 

the preamble to the annual 

specifications and management 

measures published on January 11, 2001 

(66 FR 2338).

The 2003 ABCs are based on the best 

scientific information available to the 

Council at its September 2002 meeting. 

The ABCs in Table 1 represent total 

fishing mortality (landed catch plus 

discards). Where the assessments 

included Canadian waters, the ABCs 

apply only to U.S. waters. Stock 

assessment information considered in 

determining the ABCs is Stock 

Assessment and Fishery Evaluation 

documents and reports and is available 

from the Council. These documents 

were made available to the public before 

the Council’s September 2002 meeting. 

Additional information may be found in 

the EIS prepared by the Council for this 

action and in documents available at the 

June and September 2002 Council 

meetings. (see ADDRESSES)

OY Policy

In 1999, the Council adopted a ‘‘40–

10 precautionary policy’’ for setting 

OYs. The 40–10 policy is intended to 

reduce the chance that species will 

become overfished. According to the 

Council’s OY policy, if the stock 

biomass is larger than the biomass 

needed to produce MSY (Bmsy), the OY 

may be set equal to or less than the 

ABC. The Council uses 40 percent as a 

default proxy for Bmsy, also referred to 

as B40%. The Council’s default OY 

harvest policy reduces the fishing 

mortality rate when a stock is at or 

below Bmsy. A stock with a current 

biomass between 25 percent of the 

unfished level and Bmsy is said to be in 

the ‘‘precautionary zone.’’ The further 

the stock is below the precautionary 

threshold (usually B40%), the greater 

the reduction in OY relative to the ABC, 

until at B10%, the OY would be set at 

zero. This is, in effect, a default 

rebuilding policy that will foster quicker 

return to the Bmsy level than would 

fishing at the ABC level. For further 

information on this policy, see the 

preamble to the annual specification 

and management measures published 

on January 8, 1999 (64 FR 1316).

The Council may recommend setting 

the OY higher than what the default OY 

harvest policy specifies, provided that 

the OY does not exceed the ABC (Fmsy)


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harvest rate, complies with the 

requirements of the Magnuson-Stevens 

Act, and is consistent with the National 

Standard Guidelines and FMP 

requirements. On a case-by-case basis, 

additional precaution may be added as 

may be warranted by uncertainty in the 

data or by a stock’s higher risk of being 

overfished. A stock that falls below 25 

percent of its unfished biomass (B25%) 

is considered overfished under the FMP. 

Once a stock is declared overfished, the 

Magnuson-Stevens Act requires the 

Council to develop a rebuilding plan 

within 1 year from the public 

announcement in the Federal Register

that the stock has been declared 

overfished. Rebuilding plans for 

overfished species generally have stockspecific allowable harvest rates based on 

a rebuilding analysis and rebuilding 

strategy, although those rates may still 

be consistent with this 40–10 default 

OY policy and may not exceed Fmsy.

2003 ABCs and OYs

The species that had ABCs and OYs 

in 2002 continue to have ABCs and OYs 

in 2003. Changes that have been made 

since 2002 that affect the ABCs and OYs 

for 2003 include: (1) the completion of 

new assessments for canary, bocaccio, 

and yelloweye rockfish; (2) the 

preparation of an assessment update for 

sablefish; (3) the preparation of a 

yelloweye rockfish rebuilding analysis; 

(4) revision of the widow rockfish 

rebuilding analysis; (5) changes in the 

catch distribution of canary rockfish 

between commercial and recreational 

fisheries; (6) the preparation of a 

sustainability analysis for bocaccio 

rockfish; (7) the projection of the 2002 

Pacific whiting model forward one year; 

and (8) the subdivision of the minor 

nearshore rockfish south OY into 

shallow nearshore rockfish, California 

scorpion fish, and deeper nearshore 

rockfish. Discussions of the 

development of ABCs and OYs for 

species with changed specifications 

from 2002 are contained in this section. 

Summaries of draft rebuilding plans for 

overfished species are provided in the 

next section, ‘‘Determination of 

Overfished Stocks and Rebuilding 

Plans.’’

Canary rockfish

NMFS prepared an assessment update 

for canary rockfish, based on an agestructure stock synthesis model. Unlike 

the previous assessment in 2000, the 

2002 assessment model included the 

entire coast and blended the alternative 

mortality/selectivity scenarios into one 

scenario that linked increasing female 

natural mortality to maturity while 

allowing selectivity (the ability of the 

gear to catch certain sizes or types of 

fish) of females to be domed shaped. In 

this context, ‘‘domed shaped’’ means 

that the model places greater emphasis 

on female mortality at intermediate 

ages, rather than equally across all 

possible ages of mortality. This was 

done to address uncertainty regarding 

the reasons for the lower occurrence of 

old females versus old males. Although 

the model provides a more complete 

evaluation, the availability and 

mortality of older females in the survey 

and fishery data continues to be a 

source of uncertainty with the 

assessment. The 2002 assessment 

extends back to 1940 to provide a better 

evaluation of the unfished biomass 

level, and estimates the degree of 

compensation in the spawnerrecruitment relationship to provide an 

improved basis for forecasting future 

recruitments during rebuilding.

The new assessment estimates that 

the canary rockfish biomass was at 8 

percent of its unfished biomass 

coastwide at the beginning of 2002. As 

with the 2000 assessment, canary 

rockfish shows a decline throughout the 

assessment time period with most of the 

decline occurring from 1975 to 1995.

The Council considered four OYs 

based on different rebuilding 

parameters—constant fishing mortality 

rates that would have 80–percent, 60–

percent and 50–percent probabilities of 

rebuilding the canary rockfish to Bmsy 

by the year 2076 (Tmax is the maximum 

allowable time to rebuild as defined in 

the National Standard Guidelines, 50 

CFR subpart D). The fourth option had 

a 50–percent probability of rebuilding 

the canary rockfish to B40% by the year 

2067 (Tmid). (Tmid is halfway between 

Tmax and Tmin–the minimum time to 

rebuild in the absence of fishing as 

defined in the National Standard 

Guidelines, 50 CFR Subpart D). In 

addition, four different arrangements for 

dividing catch between the commercial 

and recreational fisheries were 

considered. The OY levels ranged from 

20 mt to 57 mt. In general, the 

recreational fisheries take smaller 

canary rockfish than the commercial 

fisheries, resulting in a greater per ton 

impact on the canary stock over the 

rebuilding period. The catch sharing 

arrangements considered by the Council 

included: 20 percent recreational/80 

percent commercial, 39 percent 

recreational/61 percent commercial, 50 

percent recreational/50 percent 

commercial, and 80–percent recreation/

20 percent commercial. The Council 

recommended adopting an ABC of 272 

mt and an OY of 44 mt based on a 60–

percent probability of rebuilding the 

canary rockfish to Bmsy by the year 

2076 (Tmax) with a 39–percent 

recreation/61–percent commercial catch 

sharing arrangement. Canary rockfish is 

taken in a wide variety of fisheries 

coastwide, co-occurring with many 

different groundfish stocks. The catch 

sharing arrangement for canary rockfish 

was needed to ensure that canary 

rockfish taken in the different fisheries 

would be appropriately accounted for.

Bocaccio Rockfish

A new stock assessment was prepared 

for bocaccio rockfish in the Conception 

and Monterey areas, the statistical areas 

where the bocaccio rockfish stock is 

overfished. This new assessment uses a 

length-based stock synthesis model 

similar to that used for the 1999 

assessment, but differs from the 

previous assessment in that it (1) 

includes new information from a larger 

area of southern California; (2) moves 

the beginning of the assessment time 

period back 18 years; (3) updates 

estimates of commercial and 

recreational landings data; (4) uses a 

‘‘jacknife’’ statistical method to estimate 

precision of abundance indexes rather 

than using assumed values of precision, 

which is a useful procedure when the 

data dispersion or distribution are wide 

or extreme; (5) omits triennial survey 

data from hauls where the trawl gear did 

not actually fish on the ocean floor (socalled ‘‘water hauls’’); (6) adds an index 

of larval abundance reflecting spawning 

biomass; (7) adds a recreational ‘‘catch 

per unit effort’’(CPUE)index for 1980–

2001; and (8) includes a new 

recruitment index based on the 

impingement rate of juvenile bocaccio 

rockfish in saltwater intakes at southern 

California electric power plants between 

1972–2000.

The new bocaccio rockfish assessment 

is consistent with the finding in 

previous assessments that there has 

been a declining biomass trend since 

1969. The new assessment estimates 

that the bocaccio rockfish spawning 

stock biomass in the Monterey and 

Conception areas is at about 3.6 percent 

of its unfished biomass. The estimated 

biomass for 2002 (age 2+ fish) is 2,914 

mt. The ABC for bocaccio rockfish, 

which is based on the new assessment 

with an Fmsy proxy of F50%, is 198 mt.

Bocaccio was declared overfished in 

1999. Since 2000, the bocaccio OY has 

been set to be a constant harvest level 

of 100 mt. This level was based on the 

1999 rebuilding analysis and was 

estimated to have a 67 percent 

probability of rebuilding the stock to 

Bmsy by 2033. The new assessment in 

2002 found that the rate of rebuilding 

would probably be lower than projected 

from the 1999 assessment and that the

948 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

harvest level would need to be lowered. 

Based on the new stock assessment and 

a new rebuilding analysis, the Council, 

at its June 2002 meeting, recommended 

for further analysis a bocaccio rockfish 

OY for 2003 of 5.8 mt. This new OY was 

associated with a constant mortality rate 

and a 50 percent probability of 

rebuilding to Bmsy by the year 2109 

(Tmax). At this same meeting, the 

Council requested that the rebuilding 

analysis be updated using procedures 

recommended by the SSC. Following 

the June 2002 Council meeting and prior 

to revision of the bocaccio rebuilding 

analysis, the rebuilding model for all 

overfished species was refined to more 

accurately account for actual catch 

occurring during and after the initial 

year of rebuilding.

In the revised bocaccio rebuilding 

analysis prepared following the June 

Council meeting, the stock failed to 

have a 50- percent probability of 

rebuilding by Tmax, even in the absence 

of fishing. Tmax is the maximum time for 

rebuilding established by the National 

Standard Guidelines (50 CFR 600, 

subpart D). This failure is due to lower 

estimated recruitment of the 1999 year 

class and recent landings that exceeded 

the rebuilding OYs. Bocaccio landings 

in 2000 and 2001 were respectively 69 

and 47 mt over the OY levels set in 

2000. In addition, hindsight shows, 

based on the new rebuilding analysis’

calculation of the actual strength of the 

1999 year class, that the OYs for 2000 

and 2001 had been set too high in view 

of the actual strength of the 1999 year 

class. The OYs set for 2000 and 2001 

created a ‘‘rebuilding deficit’’ that will 

take more than Tmax to recover from. 

NMFS subsequently prepared a 

sustainability analysis for bocaccio 

rockfish. A rebuilding analysis 

addresses the fishing rates associated 

with rebuilding an overfished stock to a 

target abundance within a specified 

time frame, whereas a sustainability 

analysis addresses the fishing rates that 

would lead to no further decline in 

abundance over a specified time frame. 

In both types of analysis, the 

uncertainty of future reproductive 

successes requires that the results be 

described in terms of probabilities 

rather than certainties. The 

sustainability analysis shows that a 

harvest level of ≤20 mt would provide 

a 50- percent probability for the stock to 

rebuild in 170 years, with a high 

probability (>80 percent) of no further 

decline in the spawning biomass over 

the next 100 years. The Council’s SSC 

concluded that the sustainability 

analysis represented the best available 

science and endorsed its use in setting 

2003 harvest levels. The Council agreed 

with the SSC recommendation. The 

National Standard Guidelines do not 

address the situation where NMFS 

concludes, based on an updated 

rebuilding analysis, that a stock cannot 

be rebuilt within Tmax, even with zero 

fishing mortality. Therefore, NMFS has 

determined that the National Standard 

Guidelines do not provide sufficient 

guidance for the bocaccio rockfish 

situation and instead has looked 

directly to the Magnuson-Stevens Act 

for guidance. Section 304(e)(4)(A)(i) 

states that a rebuilding period shall ‘‘be 

as short as possible, taking into account 

the status and biology of any overfished 

stocks of fish, the needs of fishing 

communities, recommendations by 

international organizations in which the 

United States participates, and the 

interaction of the overfished stock of 

fish within the marine ecosystem.’’

NMFS believes that the MagnusonStevens Act requires that the Council 

and NMFS meet the conservation needs 

of the stock (National Standard 1), and 

also consider the needs of fishing 

communities (National Standard 8). 

Balancing these considerations, zero 

fishing mortality is not required for this 

situation. Zero fishing mortality would 

seriously adversely affect fishers and 

communities in California south of Cape 

Mendocino, CA. In this area, 

commercial fisheries (including 

fisheries for non-groundfish species) 

and recreational fisheries that 

incidentally catch bocaccio would be 

severely curtailed or closed for many 

years into the future. Bocaccio is taken 

incidentally in a wide variety of 

fisheries, ranging from recreational 

fisheries that operate off piers and jetties 

taking juvenile bocaccio in nearshore 

waters, to commercial purse seine 

fisheries for squid and other coastal 

pelagic species.The OY recommended 

by the Council, which is based on the 

sustainability analysis, the needs of 

fishing communities, and the biology of 

the stock, has a low probability of 

driving the stock into further decline 

and will not materially jeopardize future 

rebuilding. The large historical biomass 

of bocaccio occurred through 

accumulation over time of biomass from 

several intermittent, large recruitments. 

These large recruitment events are 

thought to be connected to currently 

unknown and unpredictable ocean 

conditions. Bocaccio rebuilding 

depends on the future occurrence of 

similarly large recruitment successes. 

Although the 1999 year class was in fact 

smaller than had been projected in 

1999, it is still the largest year class 

since 1991. The recruitment success 

observed in 1999 indicates that the 

current spawning biomass is capable of 

initiating the rebuilding, but substantial 

rebuilding awaits the future occurrence 

of several such successes. Based on the 

current information, NMFS concludes 

that at the proposed OY level bocaccio 

will be able to rebuild. The analysis 

shows an 80 percent probability of no 

further decline after 100 years, a 50 

percent probability (the standard 

reference probability level) of rebuilding 

within 170 years, and a 33 percent 

probability of rebuilding by the year 

2109. Therefore, NMFS believes the 

recommended OY is consistent with the 

Magnuson-Stevens Act.

Yelloweye Rockfish

Yelloweye rockfish were first assessed 

in 1996 as part of the ‘‘remaining 

rockfish’’ group. In 2001, a yelloweye 

rockfish assessment was conducted for 

northern California and Oregon. The 

2001 assessment estimated that 

yelloweye rockfish was at about 7 

percent of its unfished biomass in 

waters off northern California and at 13 

percent of its unfished biomass in 

waters off Oregon; this resulted in 

NMFS declaring yelloweye rockfish to 

be overfished. An initial yelloweye 

rockfish rebuilding analysis, based on 

the 2001 assessment, was prepared and 

presented at the Council’s June 2002 

meeting. Because this assessment did 

not cover Washington, the development 

of rebuilding measures was hampered.

In August 2002, an updated 

assessment was completed in order to 

incorporate data from Washington, an 

important area of yelloweye rockfish 

abundance, and to incorporate newly 

available age data. Other changes from 

the 2001 assessment included: the use 

of a combined area model; revised 

selectivity curves for all sectors of the 

fishery; the inclusion of Washington 

catch data; re-evaluation of California 

logbook data and the influence of port 

group and depth effects; extension of 

the modeled time period; revision of the 

treatment of natural mortality rates; and 

inclusion of a spawner-recruitment 

relationship to provide an overall 

measure of stock productivity.

Like the 2001 assessment, the updated 

assessment indicated that there has been 

a declining abundance trend for more 

than 30 years, with the last above 

average recruitment occurring in the late 

1980s. The assessment update 

concluded that the coastwide yelloweye 

rockfish spawning female biomass (934 

mt) was at 24.1 percent of its unfished 

biomass at the beginning of 2002. The 

SSC supported the new assessment 

model and indicated that it represented 

the best available science. The 2003

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 949

yelloweye ABC of 52 mt is based on the 

new assessment, with an Fmsy proxy of 

F50%.

A revised rebuilding analysis was 

prepared following completion of the 

2002 assessment. Due to the less 

depleted stock status and higher 

productivity estimated by the updated 

assessment, the rebuilding period is 

shorter than had been estimated 

following the initial rebuilding analysis. 

The SSC indicated that the revised 

rebuilding analysis represented the best 

available science and advised using it to 

set 2003 harvest levels.

At the Council’s September meeting, 

four OY options were considered for 

yelloweye rockfish: 2.1 mt — the low 

range from the June 2002 draft 

rebuilding analysis; 13.5 mt - the 2002 

OY; 22 mt - based on a 50–percent 

probability of rebuilding the yelloweye 

rockfish to Bmsy by the year 2050 (Tmid) 

from the revised rebuilding analysis; 

and 27 mt, the value corresponding to 

a 50–percent probability of rebuilding 

the yelloweye rockfish to Bmsy by the 

year 2069 (Tmax) from the revised 

rebuilding analysis. The SSC advised 

that the OY not exceed 22 mts, the OY 

recommended by the Council’s ad hoc 

allocation committee. The Council 

followed the SSC’s advice and 

recommended adopting an OY of 22 mt.

Sablefish

In 2001, sablefish were assessed in the 

region between Point Conception (34°

27′ N. lat.) and the U.S.-Canada border. 

The assessment indicated a decline in 

biomass since the late 1970s and a 

decline in recruitment during the early 

1990s. This result was supported by a 

parallel assessment conducted by an 

industry-supported research team. For 

2002, newly available fishery and 

survey data were used to update the 

assessment. No changes were made to 

the model structure or assumptions. 

However, the update produced a larger 

than expected increase in the perceived 

stock abundance throughout the time 

series. Such a change is an indication of 

the overall uncertainty in the stock 

assessment due to the relatively short 

time series of survey data. The relative 

2001 spawning stock biomass had been 

estimated to be between 27 and 38 

percent of the unfished biomass 

following the 2001 assessment, and the 

estimate increased to between 31 and 39 

percent of the unfished biomass in the 

2002 update. There was a notable 

increase in the estimated abundance of 

young fish born in 1999 and 2000 and 

evidence that these young fish have 

begun to recruit to the fishery.

As in 2001, two alternative states of 

nature, environmentally driven and 

density-dependent, were considered in 

calculation of target abundance levels 

and current productivity. The declines 

in recruitment during the early 1990s 

may have resulted from changes in 

environmental conditions or the low 

recruitment may have been caused by 

low spawning biomass. It is not possible 

to determine with high confidence the 

primary cause of the low recruitments 

during the 1990s, but the higher 

recruitment in 1999 and 2000 lends 

support for the environmental scenario.

The ABC estimate for the assessment 

area north of Point Conception (34° 27′

N. lat) is 8,459 mt. The ABC for the 

management area north of 36° N lat. is 

8,209 mt (97.04 percent of the ABC from 

the surveyed area). The ABC estimate 

was based on the environmental 

scenario for trends in recruitment and 

on application of an Fmsy proxy of 

F45%. Although there is evidence that 

juvenile sablefish have begun to recruit 

to the fishery, the growth of the 

sablefish biomass will be slow and will 

depend on future average recruitment 

being larger than observed during most 

of the 1990s.

Four OY options were presented to 

the Council for the area North of 36° N. 

lat.: 8,187 mt based on the ABC from the 

environmentally driven projection with 

an Fmsy proxy of F45% and a 40/10 

adjustment; 7,455 mt based on the ABC 

from the density-dependent projection 

with an Fmsy proxy of F45% and a 40/

10 adjustment; 4,477 mt based on the 

ABC from the density-dependent 

projection with an Fmsy proxy of F60% 

and a 40/10 adjustment; and 5,000 mt, 

an intermediate point between 4,477 mt 

and 7,455 mt. The SSC indicated that 

the medium and high OYs were 

relatively risk-prone and advised the 

Council that caution should be used 

when setting the 2003 harvest levels. 

The SSC noted that an OY of 5,000 mt, 

as recommended by the Council’s ad 

hoc Allocation Committee, was 

consistent with the SSC 

recommendation and addresses 

uncertainty in assessment relating to the 

different states of nature.

Following discussions and public 

comment, the Council recommended 

adopting an ABC of 8,459 mt for the 

surveyed area, resulting in an ABC of 

8,209 mt with an OY of 6,500 mt for the 

area north of 36° N′ lat. The Council 

recommended OY of 6,500 mt is the 

7,455 mt OY, based on a 40/10 

adjustment to the ABC, with an 

additional 1,000 mt precautionary 

reduction. The Council based its 

recommendation on the SSC’s advice to 

be precautionary because of assessment 

uncertainties, and because the sablefish 

biomass is within the precautionary 

range. The Council indicated that it was 

prudent to adopt an OY that was risk 

averse rather than risk neutral.

Pacific Whiting

Pacific whiting was declared 

overfished on April 15, 2002 (67 FR 

18117). The Pacific whiting stock is 

estimated to be just below the FMP’s 

overfished species rebuilding 

threshhold of B25%. In June, a draft 

rebuilding analysis for whiting that 

followed the analysis guidelines 

established by the SSC was presented to 

the Council. Because of the high 

variability in recruitment patterns and 

short life span of whiting, the rebuilding 

analysis estimated a short rebuilding 

period even with high harvest levels. 

However, given the recruitment 

variability, there is also a high 

probability that the whiting biomass 

would drop below the overfishing 

threshold again following recovery. The 

rebuilding analysis examined 

alternative Fmsy proxies in terms of 

whether the population would become 

overfished following recovery. The SSC 

was unable to investigate the merits of 

moving from the current F40% Fmsy 

proxy to another; however, the SSC did 

advise continuing the use of the 40–10 

harvest policy for whiting and noted 

that the 40–10 harvest policy appeared 

adequate to achieve rebuilding.

Three OY options, all of which are 

based on a medium level of recruitment 

for the 1999 year class, were considered 

by the Council: 129,600 mt based on the 

2002 biomass estimate with an F40% 

Fmsy proxy and the application of the 

40–10 harvest policy; 148,200 mt based 

on the 2003 projected biomass with an 

F45% Fmsy proxy and the application 

of the 40–10 harvest policy; and 173,600 

mt based on the 2003 projected biomass 

with an F40% Fmsy proxy and the 

application of the 40–10 harvest policy. 

The SSC advised the Council to be 

precautionary and not increase the 

whiting OY over the 2002 harvest level 

until a new assessment was conducted. 

However, the Council indicated that the 

medium harvest level, 148,200 mt, 

based on the 2003 projected biomass 

with an F45% Fmsy, was sufficiently 

precautionary. Although it allows a 

short-term increase in the OY based on 

expected population growth, it moves to 

a more precautionary harvest rate that is 

expected to increase the rebuilding rate 

and reduce the risk of declining back 

into an overfished state (below B25%) 

given the high productivity of whiting.

Minor Nearshore Rockfish

To protect depleted stocks and 

minimize the chance of overfishing, 

changes were made in 2000 that

950 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

eliminated the ‘‘Sebastes complex’’ and 

created the ‘‘minor rockfish’’ categories 

(January 4, 2000, 65 FR 221). Minor 

rockfish species that have had 

rudimentary or no assessments are 

divided into nearshore, shelf, and slope 

categories that represent where they are 

predominantly caught.

Given the expected increase in fishing 

pressure in nearshore areas, the States of 

Oregon and California indicated that the 

commercial and recreational minor 

nearshore rockfish fisheries could be 

better managed if the minor nearshore 

rockfish species group were subdivided. 

For 2003, the States of Oregon and 

California will manage minor nearshore 

rockfish north as two groups: black and 

blue rockfish and all other nearshore 

rockfish. Due to the expected effort shift 

to the nearshore area resulting from 

depth based closures in deeper waters, 

the Council further recommended 

capping the 2003 OY at the 2000 OY 

level. This was done as a precautionary 

measure until quantitative assessment 

can be prepared for the southern portion 

(south of Cape Falcon, OR) of the area 

north of Cape Mendocino, CA. Because 

there are no commercial nearshore 

fisheries in the State of Washington, 

minor nearshore rockfish will continue 

to be managed as a single group. The 

total catch OY for black and blue 

rockfish in the area between 40°10′ N. 

lat. and 46°16′ N. lat. is 585 mt and the 

total catch OY for all other nearshore 

rockfish in this same area is 53 mt. For 

the area north of 46°16′ N. lat. (the 

Washington/Oregon border), the total 

catch OY for all nearshore rockfish is 

290 mt, most of which is estimated to 

be taken in the recreational fisheries 

although a small amount is expected to 

be taken in the tribal fisheries.

For 2003, the minor nearshore 

rockfish south OY will be managed as 

the following three groups with separate 

OYs: Shallow nearshore rockfish (black 

and yellow, China, grass, gopher and 

kelp rockfish), California scorpionfish, 

and deeper nearshore rockfish (black, 

blue, brown, calico, copper, olive, 

treefish, and quillback rockfish). Given 

the projected increase in both 

recreational and commercial fishing 

pressure in nearshore areas, the State of 

California indicated that the fisheries 

could be better managed and overfishing 

prevented if the minor nearshore 

rockfish species were subdivided. The 

shallow nearshore rockfish total catch 

OY will be 104.9 mt; the deeper 

nearshore rockfish total catch OY will 

be 351 mt; and the California 

scorpionfish total catch OY will be 84.8 

mt. Alternative catch sharing 

arrangements between the commercial 

and recreational sectors were 

considered by the Council. The catch 

sharing arrangement proposal in this 

rule was developed through a public 

hearing process conducted by the 

California Department of Fish and 

Game.

Overfished Species

Nine groundfish stocks have been 

designated as ‘‘overfished,’’ POP, 

bocaccio, lingcod, canary rockfish, 

cowcod, darkblotched rockfish, widow 

rockfish, yelloweye rockfish and Pacific 

whiting. Management measures 

designed to rebuild overfished species, 

or to prevent species from becoming 

overfished, may restrict the harvest of 

relatively healthy stocks that are 

harvested with overfished species. As a 

result of the constraining management 

measures imposed to protect and 

rebuild overfished species, a number of 

the OYs for healthy stocks may not be 

achieved in 2003.

Pacific Ocean Perch (POP)

The recommended ABC for POP in 

2003 is 689 mt, is based on an F50% 

Fmsy proxy and is a 2003 projection 

based on the Council’s interim 

rebuilding strategy. Three OYs based on 

the most recent rebuilding analysis and 

corresponding to different probabilities 

of rebuilding the stock were presented 

to the Council. These OYs were: 496 mt 

based on a 50 percent probability of 

rebuilding POP rockfish to Bmsy by the 

year 2041 (Tmax); 377 mt the value 

corresponding to a 70 percent 

probability of rebuilding POP to Bmsy 

by the year 2041; and 311 mt the value 

corresponding to an 80–percent 

probability of rebuilding POP to Bmsy 

by the year 2041. The Council 

recommended OY of 377 mt is 

consistent with the interim rebuilding 

strategy adopted by the Council in prior 

years.

Lingcod

The recommended ABC for lingcod in 

2003 is 841 mt and is based on an F45% 

Fmsy proxy. Three OYs, based on the 

rebuilding analysis prepared in 2001 

and corresponding to different 

probabilities of rebuilding the stock to 

Bmsy by Tmax, were presented to the 

Council. These OYs were: 555 mt based 

on a 80- percent probability of 

rebuilding lingcod to Bmsy by the year 

2009 (Tmax); 651 mt the value 

corresponding to a 60–percent 

probability of rebuilding lingcod to 

Bmsy by the year 2009; and 725 mt the 

value corresponding to a 50–percent 

probability of rebuilding lingcod to 

Bmsy by the year 2009. The Council 

recommended adopting an OY for 2003 

of 651 mt. This harvest level is 

consistent with the interim rebuilding 

strategy adopted by the Council in prior 

years and is expected to maintain the 

Council’s goal of rebuilding lingcod by 

the year 2009.

Darkblotched Rockfish

The recommended ABC for 

darkblotched rockfish in 2003 is 205 mt 

and is based on an F50% Fmsy proxy. 

Five OYs, based on the 2001 rebuilding 

analysis and corresponding to different 

probabilities of rebuilding the stock to 

Bmsy, were presented to the Council. 

These OYs were: 100 mt, 130 mt based 

on the 2001 harvest level that was in 

place before the final rebuilding 

analysis was completed, 172 mt the 

value corresponding to a 80- percent 

probability of rebuilding darkblotched 

rockfish to Bmsy by the year 2047 

(Tmax); 184 mt the value corresponding 

to a 60- percent probability of rebuilding 

darkblotched rockfish to Bmsy by the 

year 2047; and 205 mt the value 

corresponding to a 50- percent 

probability of rebuilding darkblotched 

rockfish to Bmsy by the year 2047. The 

172 mt OY is also comparable to a 50- 

percent probability of rebuilding 

darkblotched rockfish to Bmsy by the 

year 2030 (Tmid).

Because darkblotched rockfish are 

primarily harvested with trawl gear, 

managing to a lower OY would most 

constrain the trawl fishery and likely 

require most fishing to occur seaward of 

the 250 fm (457 m) depth contour, 

where darkblotched rockfish is 

primarily caught (for further 

information see the Emergency rule to 

establish depth-based management 

measures; September 13, 2002, 67 FR 

57973). Measures to further restrict 

flatfish trawl fisheries shoreward of 100 

fm (183 m) would also protect juvenile 

darkblotched rockfish. Small vessels 

would be most affected by a lower OY. 

The Council recommended an OY of 

172 mt, which provides a reasonable 

balance between the length of time for 

rebuilding the stock and the adverse 

economic impacts to the limited entry 

trawl sector. This OY is associated with 

an 80- percent probability of rebuilding 

within Tmax as compared to the 70 

percent probability that was applied in 

2002.

Widow Rockfish

The recommended ABC for widow 

rockfish in 2003 is 3,871 mt and is 

based on an F50% Fmsy proxy. At the 

Council’s June 2002 meeting, a revised 

widow rockfish rebuilding analysis was 

reviewed. Three OYs based on the 

revised analysis and corresponding to 

different probabilities of rebuilding the 

stock by Tmax were presented to the

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 951

Council. These OYs were: 656 mt based 

on a 50 percent probability of rebuilding 

widow rockfish to Bmsy by the year 

2030 (Tmid); 832 mt the value 

corresponding to a 60 percent 

probability of rebuilding widow 

rockfish to Bmsy by the year 2039 

(Tmax); and 916 mt the value 

corresponding to a 50- percent 

probability of rebuilding widow 

rockfish to Bmsy by the year 2039. The 

low OY alternative would not provide 

for a mid-water trawl target fishery for 

yellowtail rockfish and would not 

provide an adequate buffer against 

unanticipated mortalities and increased 

effort. The higher harvest levels could 

be expected to provide for a limited 

mid-water trawl fishery for yellowtail 

rockfish. The Council recommended 

adopting an OY for 2003 of 832 mt. This 

harvest level is consistent with the 

interim rebuilding strategy adopted by 

the Council, and a 60–percent 

probability of rebuilding widow 

rockfish to Bmsy by the year 2039, 

which is the same as a 50 percent 

probability of rebuilding by 2037 

(TTarget.)Derivations of the ABC and OYs 

for the individual groundfish species are 

explained in detail in Council 

documents from their June and 

September 2002 meetings and in the 

most recent stock assessments and are 

summarized in this document in Table 

1a. Derivations of commercial harvest 

guidelines, limited entry and open 

access allocations, and landed catch 

equivalents appear in the footnotes to 

Table 1a, listed at the end of Table 1b.

Determinations of Overfished Stocks 

and Rebuilding Plans

The status of the groundfish stocks is 

evaluated against the requirements of 

the Magnuson-Stevens Act, the National 

Standard Guidelines, and the FMP. A 

species is considered to be overfished if 

its current biomass is less than 25 

percent of the unfished biomass. The 

Magnuson-Stevens Act requires that a 

rebuilding plan be prepared within 1 

year after the Council is notified by 

NMFS that a particular species is 

overfished.

In the fall of 2000, NMFS had 

approved the first three rebuilding plans 

for lingcod, boccacio, and POP (65 FR 

53646, September 5, 2000). 

Subsequently, requirements for 

developing overfished species 

rebuilding plans were addressed in 

Amendment 12 to the FMP, which were 

submitted for public review (65 FR 

54475, September 8, 2000) and 

approved by NMFS on December 7, 

2000. During NMFS’s review of 

Amendment 12, the agency considered 

whether the three recently approved 

rebuilding plans met the requirements 

of Amendment 12 and concluded that 

the plans did not. The final rule to 

implement Amendment 12 describes 

NMFS’s revocation of the lingcod, 

boccacio, and POP rebuilding plans (65 

FR 82947, December 29, 2000). NMFS 

instructed the Council to re-submit 

rebuilding plans. The groundfish fishery 

has continued to operate under interim 

rebuilding measures for these species.

While NMFS and the Council were 

developing rebuilding plans that were 

consistent with the requirements of 

Amendment 12, NMFS notified the 

Council that canary rockfish and 

cowcod were overfished and that the 

Council must submit rebuilding plans 

for these species to NMFS by January 4, 

2001 (65 FR 221, January 4, 2000). On 

January 11, 2001 (66 FR 2338), NMFS 

notified the Council that darkblotched 

and widow rockfish were overfished 

and that Council must submit 

rebuilding plans for these species to 

NMFS by January 11, 2002. 

Subsequently, on August 20, 2001, the 

Federal magistrate ruled in National 

Resources Defense Council, Inc v. Evans

168 F. Supp. 2d 1149 (N.D. Cal., 2001) 

that rebuilding plans under the FMP 

must be in the form of a plan 

amendment or proposed regulations as 

specified by the Magnuson-Stevens Act, 

16 U.S.C. 1854 (e)(3). In accordance 

with the Court ruling, the magistrate 

issued an order setting aside those 

portions of Amendment 12 to the FMP 

dealing with rebuilding plans 

(Amendment 12 provided a framework 

for rebuilding plans that were not 

themselves plan amendments or 

proposed regulations). As a result of the 

magistrate’s decision, the Council must 

now revise Amendment 12 and 

rebuilding plans to be consistent with 

the Magnuson-Stevens Act. On January 

11, 2002 (67 FR 1555), NMFS notified 

the Council that yelloweye rockfish was 

overfished and that the Council must 

submit a rebuilding plan to NMFS by 

January 11, 2003. On April 15, 2002 (67 

FR 18117), NMFS notified the Council 

that Pacific whiting was overfished and 

that the Council must submit a 

rebuilding plan to NMFS by April 15, 

2003. At its October 29 - November 1, 

2002, meeting in Foster City, CA, the 

Council addressed Amendment 16 to 

the FMP, which is scheduled for 

adoption in April 2003. Amendment 16 

is intended to bring the FMP into 

compliance with the Court order to 

make rebuilding measures consistent 

with the Magnuson-Steven’s Act, and 

allow for public review.

The draft rebuilding plans initially 

endorsed by the Council are 

summarized as follows:

POP

Areas: Vancouver and Columbia

Status of stock: 13 percent of its 

unfished biomass (1998)

Tmax: 2041

Ttarget with a 50 percent probability 

of rebuilding: 2027

Probability of rebuilding to Bmsy by 

Tmax: 70 percent

Fmsy proxy: F50%

ABC in 2003: 689 mt

OY in 2003: 377 mt

Management measures for 2003: POP 

primarily inhabit waters of the upper 

continental slope and are found along 

the edge of the shelf. POP are primarily 

taken in trawl gear. Therefore, new 

depth based management measures that 

prohibit bottom trawling in depths 

where darkblotched rockfish, a slope 

species, are commonly found will also 

benefit POP. Relatively small 

cumulative trip limits are intended to 

accommodate incidental bycatch 

without encouraging targeting. POP is 

not an important species for the 

recreational or nontrawl commercial 

fisheries.

Bocaccio 

Areas: Monterey and Conception

Status of stock: 3.6 percent of its 

unfished biomass in 2002

Tmax: 2109 see discussion in previous 

section regarding the sustainability 

analysis

Ttarget with a 50 percent probability of 

rebuilding: see discussion in previous 

section regarding the sustainability 

analysis

Probability of rebuilding to Bmsy by 

Tmax: see discussion in previous section 

regarding the sustainability analysis

Fmsy proxy: F50%

ABC in 2003: 198 mt

OY in 2003: ≤20 mt

Management measures for 2003: All 

directed bocaccio rockfish fishing 

opportunities will be eliminated for 

2003. Boccacio rockfish retention will 

not be permitted in the commercial 

fisheries. The OY will be used to 

accommodate discards of bocaccio 

rockfish resulting from incidental catch 

taken in fisheries for co-occurring 

species (see bycatch rate discussion). 

Bocaccio rockfish are a shelf species 

commonly found in depths between 45–

160 fm (82–293 m). New depth based 

management measures will prohibit 

groundfish-directed bottom trawl, 

limited entry fixed gear, and open 

access fishing opportunities in the 

depths where bocaccio are most 

commonly found. Closed areas will 

differ by gear type to tailor closures so 

that they best reflect where a particular 

gear type takes bocaccio. Chilipepper 

rockfish will be included in the minor

952 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

shelf species group, which eliminates 

opportunities to directly target a species 

that commonly co-occurs with bocaccio. 

The California recreational fisheries 

south of 40° 10′ N. lat. will be closed 

entirely from January through June, 

2003 and open only shoreward of 20 fm 

(37 m) for July through December. The 

retention of bocaccio rockfish will be 

prohibited for all gears.

Lingcod

Areas: Coastwide

Status of stock: 15 percent of its 

unfished biomass in 2001

Tmax: 2009

Tmid with a 50–percent probability of 

rebuilding: NA

Probability of rebuilding to Bmsy by 

Tmax: 60 percent

Fmsy proxy: F45%

ABC in 2003: 841 mt

OY in 2003: 651 mt

Management measures for 2003: In 

general, commercial non-trawl landings 

are prohibited during winter months to 

protect lingcod during their spawning 

and nesting seasons. Trip limits during 

the open season remain low. Because 

lingcod are predominately found on the 

shelf, gear and depth based management 

restrictions imposed to protect 

overfished shelf rockfish species will 

benefit lingcod. The recreational 

fisheries in each State maintained a 2 

lingcod bag limit, however Washington 

State will close lingcod fishing for five 

months, from fall to early spring. 

California recreational fisheries will be 

closed from January to June. 

Commercial hook and line fisheries are 

similarly closed during the winter 

months to eliminate targeting during the 

winter spawning and nesting season.

Canary Rockfish

Areas: Coastwide

Status of stock: 8 percent of its 

unfished biomass in 2002

Tmax: 2076

Ttarget with a 50 percent probability of 

rebuilding: 2074

Probability of rebuilding to Bmsy by 

Tmax: 60 percent

Fmsy proxy: F50%

ABC in 2003: 272 mt

OY in 2003: 44 mt

Management measures for 2003: The 

new depth based management measures 

that prohibit bottom trawling on much 

of the continental shelf and slope will 

limit opportunity to catch canary 

rockfish. In addition, small footrope 

trawl gear restrictions in waters 

shoreward of the closed areas are 

expected to keep the incidental catch of 

canary rockfish low. May to October 

restrictions for arrowtooth flounder are 

also expected to minimize incidental 

catch of canary rockfish. Retention of 

canary rockfish will be prohibited in the 

limited entry and open access fixed gear 

fisheries. The States will require the 

exempted pink shrimp trawl vessels to 

use finfish excluders to participate in 

the state-managed fisheries. The States 

of Washington and California will ban 

spot prawn trawls beginning in 2003, 

and instead require pot gear to be used 

for spot prawns. In the recreational 

fisheries canary rockfish retention will 

be limited to 1 fish in Washington and 

Oregon, and prohibited in California. In 

addition, the California recreational 

fisheries south of 40° 10′ N. lat. will be 

closed entirely from January through 

June and open only shoreward of 20 fm 

(37 m) for July through December.

Cowcod

Areas: Point Conception to the U.S.- 

Mexico boundary.

Status of stock: 4–11 percent of 

unfished biomass in 1999

Tmax: 2099

Ttarget with a 50–percent probability of 

rebuilding: 2095

Probability of rebuilding to Bmsy by 

Tmax: 55 percent

Fmsy proxy: F50%

ABC in 2003: 24 mt

OY in 2003: 4.8 mt

Management measures for 2003: All 

directed cowcod fishing opportunities 

were eliminated beginning in 2001. 

Retention of cowcod is prohibited for all 

commercial and recreational fisheries. 

To protect cowcod from incidental 

harvest, the Council has recommended 

continuing to use two Cowcod 

Conservation Areas (CCAs) (the Eastern 

CCA and the Western CCA) in the 

Southern California Bight, delineated to 

encompass key cowcod habitat areas 

and known areas of high catches. 

Fishing for groundfish is prohibited 

within the CCAs, except that minor 

nearshore rockfish, cabezon, lingcod, 

scorpionfish, and greenling may be 

taken from waters where the bottom 

depth is less than 20 fathoms (37 m) 

when the season for those species is 

open. A transportation corridor is 

provided through the Western CCA to 

allow commercial vessels fishing for 

slope rockfish and other groundfish 

west of the Western CCA to transport 

that groundfish through the Western 

CCA.

Darkblotched rockfish

Areas: Coastwide

Status of stock: 22 percent of unfished 

biomass in 2000

Tmax: 2047

Ttarget with a 50 percent-probability of 

rebuilding: 2030

Probability of rebuilding to Bmsy by 

Tmax: 80%

Fmsy proxy: F50%

ABC in 2003: 205 mt

OY in 2003: 172 mt

Management measures for 2003: 

Adult darkblotched rockfish primarily 

inhabit waters of the upper continental 

slope and are primarily found along the 

edge of the shelf north of 38° N.′ lat. 

Darkblotched rockfish are primarily 

taken with trawl gear. The new depth 

based management measures that 

prohibit bottom trawling on much of the 

continental shelf and slope will limit 

opportunity to catch darkblotched 

rockfish. Measures to restrict flatfish 

trawl fisheries shoreward of 100 fm (183 

m) will also protect juvenile 

darkblotched rockfish. May to October 

restrictions for arrowtooth flounder are 

also expected to minimize incidental 

catch of darkblotched rockfish.

Widow Rockfish

Areas: Coastwide

Status of stock: 24 percent of unfished 

biomass in 2000

Tmax: 2039

Ttarget with a 50–percent probability of 

rebuilding: 2037

Probability of rebuilding to Bmsy by 

Tmax: 60 percent

Fmsy proxy: F50 percent

ABC in 2003: 3,871 mt

OY in 2003: 832 mt

Management measures in 2003: 

Commercial limits for widow rockfish 

are intended to accommodate incidental 

catch and remove incentives for direct 

fishing. In addition, the midwater trawl 

fisheries for yellowtail rockfish have 

been constrained with an incidental 

catch allowance during the primary 

season for Pacific whiting to reduce 

interception of widow rockfish. Bottom 

trawl opportunities for shelf rockfish 

continue to be extremely limited, which 

is expected to benefit widow rockfish.

Yelloweye Rockfish

Areas: coastwide

Status of stock: 24 percent of unfished 

biomass in 2002

Tmax: 2071

Ttarget with a 50–percent probability of 

rebuilding: 2052

Probability of rebuilding to Bmsy by 

Tmax: 92 percent

Fmsy proxy: F50%

ABC in 2003: 52 mt

OY in 2003: 22 mt

Management measures in 2003: 

Yelloweye rockfish are more available to 

the fixed gear and recreational fisheries 

than to trawl gear. The retention of 

yelloweye rockfish in the commercial 

fixed gear fisheries will be prohibited. 

In addition, depth based closures on the 

continental shelf will prevent 

commercial interception of yelloweye 

rockfish. Off Washington State retention 

of yelloweye rockfish in recreational 

fisheries will be prohibited. A 

Yelloweye Rockfish Conservation Area

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 953

(YRCA) has been identified off the north 

Washington coast, and recreational 

fishing will be prohibited within that 

conservation area. In Oregon, the 

retention of yelloweye rockfish during 

the all-depth halibut fisheries will be 

prohibited, otherwise there is a one 

yelloweye rockfish sub-limit in the ten 

marine fish bag limit. The California 

recreational fisheries south of 40° 10′ N 

lat will be closed entirely from January 

through June and open shoreward of 20 

fm (37 m) for July through December. 

However, the retention of yelloweye 

rockfish in the California recreational 

fisheries will be prohibited.

Overfishing

None of the 2003 ABCs are knowingly 

set higher than Fmsy or its proxy, none 

of the OYs are set higher than the 

corresponding ABCs, and the 

management measures in this proposed 

rule are designed to keep harvest levels 

within specified OYs. Overfishing is 

difficult to detect inseason for many 

groundfish, particularly for minor 

rockfish species, because most are not 

individually identified on landing. 

Species compositions, based on 

proportions encountered in samples of 

landings, are applied during the year. 

However, final results are not available 

until after the end of the year. Thus, this 

Federal Register document discusses 

overfishing for 2001, not 2002. If 

overfishing occurred on any groundfish 

species in 2002, it will be discussed in 

the 2004 Federal Register publication of 

the specifications for that year. After the 

2001 fishing season, NMFS determined 

that overfishing had not occurred on 

any of the groundfish species. However, 

a new stock assessment on Pacific 

whiting incorporating 2001 

hydroacoustic survey data was 

completed in early 2002. The new stock 

assessment revised the spawning stock 

biomass to be lower than previously 

estimated over the past several years. 

Therefore, in retrospect, revised biomass 

estimates based on the results of the 

new assessment indicate that the 

exploitation rates on Pacific whiting in 

1999, 2000, and 2001 were above the 

overfishing level.

In the past, several changes to 

groundfish management, and rockfish 

management in particular, were 

intended to ensure that groundfish 

species were not subject to overfishing 

harvest rates. These changes included 

separating the rockfish complex into 

species and assemblages (nearshore, 

shelf, and slope), closing fisheries 

inseason once the OY has been reached, 

structuring the season to reduce bycatch 

of overfished species, imposing gear 

restrictions, requiring sorting of rockfish 

to improve landings data, and 

restructuring the season and trip limits 

inseason. As information on the stocks 

improves, management measures 

continue to evolve. For 2003, 

management measures are more 

restrictive in order to protect overfished 

species, including reduced harvest 

levels, depth based management, closed 

areas and seasons. Area closures north 

of Cape Mendocino, CA, were primarily 

designed to protect canary rockfish, but 

are also expected to provide protection 

for other northern overfished species 

such as darkblotched rockfish, lingcod, 

POP, yelloweye rockfish, and widow 

rockfish. Area closures south of Cape 

Mendocino, CA were primarily 

designed to protect bocaccio rockfish, 

but are also expected to provide 

protection for other southern overfished 

species such as cowcod, lingcod, and 

darkblotched rockfish in its southern 

range.

Bycatch and Discard Accounting

The Magnuson-Stevens Act defines 

bycatch as ‘‘fish which are harvested in 

a fishery, which are not sold or kept for 

personal use, and include economic 

discards and regulatory discards.’’ By 

contrast, Pacific Coast groundfish 

fishery management and many other 

fishery management regimes commonly 

use the term bycatch to describe nontargeted species that are caught in 

common with (co-occur with) target 

species, some of which are landed and 

sold or otherwise used and some of 

which are discarded. The term 

‘‘discard’’ is used to describe those fish 

harvested that are neither landed nor 

used. For the purposes of this proposed 

rule, the term ‘‘bycatch’’ is used to 

describe a species’ co-occurrence with a 

target species, regardless of that first 

species’ disposition.

West Coast groundfish species are 

rarely found in isolation. They normally 

form associations with other groundfish 

species that vary by geographic location, 

position in the water column, and 

season. Fisheries management 

recognizes this mix by setting 

management measures that discourage 

targeting of more abundant stocks in 

times when and areas where depleted 

stocks may co-occur with those healthy 

stocks. Fisheries management also 

recognizes this mix by structuring 

retention allowances for the harvestable 

amounts of depleted stocks so that 

fisheries have some limited opportunity 

to access more abundant fish stocks.

With the exception of the mid-water 

trawl fishery for Pacific whiting, most 

groundfish vessels sort their catch at sea 

and discard species that are either in 

excess of cumulative trip limits, 

unmarketable, in excess of annual 

allocations, or incidentally caught nongroundfish species. Landed or retained 

catch has been monitored by the three 

state-run fish ticket programs in 

Washington, Oregon, and California. 

Since August 2001, total catch (landed 

catch + discards) has been monitored 

through a Federal observer program. 

(For more information on the NMFS 

observer program and the observer 

coverage plan, see http://

wwwnwfsc.noaa.gov/fram/Observer.) 

Widow, yellowtail, canary and 

darkblotched rockfish discard in the atsea whiting fisheries is monitored 

inseason and actual discard numbers are 

deducted from the OY.

Groundfish management measures 

include provisions to reduce trip limitinduced discards and to account for 

those discards when monitoring harvest 

levels OYs. Historically, NMFS and the 

Council have accounted for dead 

discards by estimating the amounts of 

certain species OYs that would be 

discarded dead, and then subtracting 

those amounts from the total catch OYs 

to get landed catch levels for those 

species. These discard rates have been 

expressed as a percent of total catch OY, 

so that a 16- percent discard rate for a 

species meant that 16 percent of that 

species’ total catch OY would be 

deducted to derive that species’ landed 

catch OY. Then, management measures 

were set to achieve the landed catch OY 

for that species. Using discard rates was 

intended to account for dead fish either 

as dead discard or in landed catch. For 

all species except lingcod, sablefish, and 

nearshore rockfish species, it is assumed 

that discarded fish are generally dead 

upon discard or die soon after being 

discarded. Rockfish, particularly 

deepwater species, are severely stressed 

by decompression and temperature 

shock; however, lingcod discard 

mortality studies show about a 50–

percent discard survival rate. There is 

no exact measure of discard amounts in 

most fisheries. Assumed amounts are 

taken into account to determine the 

fishing mortality level and to prevent 

overall harvest from exceeding the OYs.

NMFS approach to bycatch 

management in the 2002 specifications 

and management measures was a radical 

departure from historic bycatch 

management practices. The primary 

emphasis of the bycatch modeling that 

NMFS used in the development of the 

2002 management measures was the 

estimation of the total amounts of 

bycatch species that would be caught 

coincidentally with available target 

species. The new management approach 

structured the amount and timing of 

cumulative landings limits for target 

species so that the expected total catch 

of both target and bycatch species not

954 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

exceed their allowable annual harvests. 

This new approach better accounted for 

the total mortality of the overfished 

stocks taken as bycatch than the 

previous method of applying estimated 

discard rates to the annual OY to 

calculate landed catch harvest 

guidelines. NMFS believes that setting 

cumulative landing limits for both target 

and bycatch species based on their cooccurrence in the catch will help ensure 

that annual OYs for bycatch species are 

not exceeded. Additional information 

on the bycatch analysis used in setting 

the 2002 specifications and management 

measures is available in the preambles 

to the proposed and final rules 

implementing that regulatory package, 

at 67 FR 1555 (January 11, 2002) and 67 

FR 10490 (March 7, 2002,) respectively.

Discard rates for individual 

groundfish species or species groups are 

provided in the species-specific 

footnotes to Table 1 of this document. 

Although no longer the first line of 

defense, calculating landed catch OYs 

based on estimated discard rates is still 

a strong second line of defense. NMFS 

new modeling approach for 2002 

provided insight into the expected level 

of discards that are associated with total 

amounts of catch. Results from the 

modeling were drawn upon to estimate 

landed catch OYs for overfished species 

taken incidentally in the commercial 

fishery. Landings were monitored so 

that inseason action could be taken to 

reduce fishing effort for one or more of 

the target species. During 2002, notable 

closures and restrictive regulations were 

implemented to prevent overharvest of 

overfished species.

The third line of defense is the 

revision of the procedures used for 

evaluating inseason progress of the 

fishery and for making management 

adjustments for the target species, and 

will also help ensure that annual OYs 

for overfished species are not exceeded. 

In previous years, when inseason 

monitoring had revealed that landings 

of a target species or complex were 

progressing at a rate that was too fast or 

too slow, adjustments were made to the 

cumulative landings limits based 

primarily on achieving the annual OY 

for the target species with little 

consideration of the bycatch 

implications of changing those limits. 

For 2002 inseason actions, the bycatch 

model was used to evaluate the bycatch 

consequences of any deviations from the 

projected target fishery landings, and of 

any changes in target species limits 

during the remainder of the year. Target 

species landings limits were not 

adjusted upwards when an adjustment 

meant that an associated bycatch 

species total catch OY would be 

exceeded, even if the annual OY for the 

target species would not be achieved.

For setting its 2003 specifications and 

management measures, the Council 

again relied on the 2002 bycatch 

analysis described earlier in this 

document, adjusted as described below. 

However, NMFS anticipates revising the 

co-occurrence rates in the bycatch 

analysis in early 2003, based on the 

agency’s evaluation of how those rates 

compare with rates recorded in the first 

year of the Federal at-sea observer 

program (August 2001 through August 

2002). These revised co-occurrence rates 

will be used to guide decisions on 

inseason actions in 2003, just as the 

original bycatch analysis guided those 

decisions in 2002.

As discussed in more detail following 

this section, the Council has introduced 

new closed areas for 2003, intended to 

prevent vessels from fishing in waters 

where overfished species commonly 

occur. The Council and its advisory 

bodies expected that introducing new 

depth based management measures 

would require adjusting the bycatch 

analysis to better recognize fishing 

patterns in the areas remaining open to 

fishing. Additionally, 2003 depthrelated revisions to the bycatch analysis 

would have to account for expected 

effort shift by vessels that had 

historically operated in the formerly 

open areas.

To account for varying fishing 

patterns by depth, the Groundfish 

Management Team (GMT) estimated the 

percentage of effort shift from closed 

areas to the remaining open fishing 

areas, then estimated the percentage of 

target species OYs that would be taken 

in the nearshore and offshore open 

areas. Some deepwater species, such as 

sablefish, will likely only be taken 

offshore of the closed areas; similarly, 

vessels will be targeting nearshore 

species shoreward of the closed areas. 

Other species, such as Dover sole, are 

distributed more broadly and will likely 

be taken in both the nearshore and 

offshore open areas. Once the GMT had 

set formulas to account for effort shift 

and target species availability in open 

fishing areas, the GMT addressed 

expected bycatch rates within those 

open areas.

Using the bycatch rates approved by 

the Council for the 2002 groundfish 

fisheries, the GMT analyzed bycatch 

rates for the same combinations of 

targeted and overfished stocks by depth 

and by two-month fishing period in 

trawl logbooks. Because the bycatch 

rates from trawl logbooks for the total 

fishing area were lower than those 

chosen by the Council for 2002 

management, the GMT assumed that 

depth-specific bycatch rates shown in 

the trawl logbooks were not adequately 

conservative. Thus, the GMT adjusted 

depth-specific trawl logbook bycatch 

rates by the ratio between the Council’s 

2001/2002 selected rates for all areas 

and the logbook rates for all areas. From 

these adjustments, the GMT set new 

depth- and fishing period-specific 

bycatch rates that were compatible with 

the more conservative all areas bycatch 

rates the Council set in 2002. The SSC 

evaluated the GMT’s methodology for 

setting depth based bycatch rates for 

2003 and noted that the methods chosen 

were reasonable, yet would benefit from 

the expected 2003 analysis of the 

bycatch model against data gathered in 

the at-sea observer program.

In designing trip limits, season 

closures, and other management 

measures, the GMT crafted trip limit 

scenarios for targeted and bycatch 

species taken in the open areas that 

were calculated to keep the total catch 

(landed + discard) of targeted species 

and overfished species below their 

respective OYs. The Council’s ultimate 

trip limit, season, and area closure 

recommendations were shaped largely 

by the depth-adapted 2001/2002 

bycatch and discard analysis and are 

proposed in section IV of this proposed 

rule.

Depth-based Management

Since 1998, groundfish management 

measures have been shaped by the need 

to rebuild overfished groundfish stocks. 

The over 80 species in the West Coast 

groundfish complex mix with each 

other to varying degrees throughout the 

year and in different portions of the 

water column. Some species, like 

Pacific whiting, are strongly aggregated, 

making them easier to target with 

relatively little bycatch of other species. 

Conversely, other species like canary 

rockfish may occur in species specific 

clusters, but are also found co-occurring 

with a wide variety of other groundfish 

species. Over the past several years, 

groundfish management measures have 

been more carefully crafted to recognize 

the tendencies of overfished species to 

co-occur with healthy stocks in certain 

times and areas.

With the 2002 specifications and 

management measures, the Council 

introduced a new bycatch analysis 

model, discussed earlier, that allowed 

managers to set trip limits so that more 

abundant stocks were more strongly 

targeted in times when they were less 

likely to co-occur with overfished 

stocks. The 2002 management measures 

primarily varied by time (two-month 

period) and by north-south management 

area (north of Cape Mendocino, between 

Cape Mendocino and Point Conception,

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 955

south of Point Conception, etc.) For 

2003, the Council has recommended 

using a new management tool: depthbased closures intended to prevent 

vessels from fishing in depths where 

overfished species commonly occur 

while still allowing some fishing for 

more abundant stocks in the open areas.

Depth-based management closures for 

the continental shelf were first 

introduced on September 13, 2002 (67 

FR 57973), with an emergency rule that 

closed trawling in the months of 

September-December 2002 in waters 

north of 40°10′ N. lat. (approximately at 

Cape Mendocino) at depths where 

darkblotched rockfish commonly 

occurs. At its June 2002 meeting, the 

Council had found that the 

darkblotched rockfish estimated total 

catch was expected to exceed the OY 

before the end of 2002. In order to 

protect darkblotched rockfish from 

overharvest while still allowing 

fisheries access to underharvested 

healthy stocks, the Council asked NMFS 

to implement an emergency rule that 

would allow trawl gear only shoreward 

of 100 fm (184 m) and offshore of 250 

fm (461 m). NMFS reviewed and 

implemented the Council’s request, 

revising the restrictions to allow fishing 

shoreward of 100 fm (184 m) only in 

October-December and offshore of 250 

fm (461 mt) in September-December, to 

prevent overharvest of canary rockfish 

and darkblotched rockfish in 

September.

The September-December 2002 

closure was intended to specifically 

protect darkblotched rockfish, which are 

commonly caught by trawl gear in 

waters of 70–250 fm (128–457 m) depth. 

In designing 2003 management 

measures, the Council considered depth 

closures that would provide protection 

for several overfished species. Different 

closed areas are provided for different 

gear types, as not all gear types 

encounter each overfished species at the 

same rate or in similar areas. POP, for 

example, is almost exclusively caught in 

trawl fisheries, whereas yelloweye 

rockfish tends to be caught by hook-andline gear.

For the limited entry bottom trawl 

fisheries north of 40°10′ N. lat., canary 

rockfish tends to be available in 20–200 

fm (37–366 m) depths, with higher 

catches in more shallow areas during 

the summer. As mentioned earlier, 

darkblotched rockfish tends to be found 

in 70–250 fm (128–457 m). To provide 

protection for all of these stocks in 2003, 

the Council recommended a closed area 

for bottom trawl fisheries north of 

40°10′ N. lat. of 100–250 fm (184–461 

m) depths, with the inshore closed area 

boundary line moving to 75 fm (137 m) 

for the months of July-August. This 

closure is expected to protect canary 

and darkblotched rockfish in areas 

where they have historically been taken 

by trawl fisheries. In the months of 

January-February and NovemberDecember, the offshore closed area 

boundary would be revised to allow 

some bottom trawling in areas where 

petrale sole tends to aggregate. (See 

paragraph IV A. (19) for exact 

coordinates.) This closed area is also 

expected to protect other northern 

continental shelf and slope overfished 

species, such as lingcod, widow 

rockfish, POP, and yelloweye rockfish. 

Large footrope bottom trawling would 

be prohibited shoreward of the closed 

areas. Midwater trawling, as defined at 

50 CFR 660.322(b)(6) would be 

permitted within the closed area for 

Pacific whiting, yellowtail and widow 

rockfish because these fishing strategies 

have historically encountered only 

small amounts of overfished species as 

bycatch. Trawling with open access 

exempted gear for species other than 

groundfish (spot prawn off Oregon and 

pink shrimp north of 40°10′ N. lat) 

would be permitted within the closed 

area. However, the States require 

groundfish excluder devices to be used 

in the pink shrimp fishery.

In the limited entry bottom trawl and 

open access exempted trawl fisheries 

south of 40°10′ N. lat., bocaccio tend to 

be found in 45–160 fm (82–293 m) 

depths and the greatest number of 

bocaccio tend to be taken between 

40°10′ N. lat. and 34°27′ N. lat. (Point 

Conception.) Although darkblotched 

rockfish are considered a northern 

species, they are also found between 

40°10′ N. lat. and 38° N. lat. To protect 

these overfished species, the Council 

recommended closing bottom trawling 

between 40°10′ N. lat. and 38° N. lat. in 

60–250 fm (110–457 m) depths, except 

that the inshore closed area boundary 

would be at 50 fm (91 m) in JanuaryFebruary. Between 38° N. lat. and 34°27′

N. lat., bottom trawling would be closed 

in 60–150 fm (110–274 m) depths, 

except that the inshore closed area 

boundary would be at 50 fm (91 m) in 

January-February. South of 34°27′ N. 

lat., bottom trawling would be permitted 

along the mainland coast (not off 

California islands) inside of 100 fm (183 

m). Around the California islands, 

bottom trawling would be prohibited 

shoreward of 150 fm (274 m). Midwater 

trawling, as defined at 50 CFR 

660.322(b)(6), would be permitted 

within the closed areas only for widow 

rockfish and whiting. For all areas, large 

footrope bottom trawling would be 

prohibited shoreward of the closed 

areas. Small footrope trawls are less able 

to fish in the rocky habitat preferred by 

many of the overfished rockfish species. 

In addition to these depth closures, the 

CCAs will remain closed to fishing 

offshore of 20 fm (37 m).

North of Cape Mendocino, CA, 

limited entry fixed gear and open access 

hook-and-line fisheries have a greater 

effect on yelloweye rockfish and a lesser 

effect on darkblotched rockfish than 

trawl gear fisheries. Thus, depth 

restrictions for these fisheries were 

designed to prevent hook-and-line gear 

from operating in depths where 

yelloweye rockfish are commonly 

found, 100 fm (183 m) and shallower. 

The Council has recommended closing 

limited entry and open access hook-andline fishing shoreward of the 100 fm 

(183 m) contour off the Washington 

coast, and between 27 fm (49 m) and 

100 fm (183 m) off the Oregon coast and 

off California north of 40°10′ N. lat. The 

27–fm (49–m) contour occurs entirely in 

State waters off the State of Washington 

and commercial fishing for groundfish 

is prohibited in State waters off 

Washington, making an inshore closed 

area boundary moot for that State. 

Fishing is permitted shoreward of the 27 

fm (49 m) boundary off Oregon and 

northern California because this area 

tends to be inshore of the areas where 

overfished species occur.

South of 40°10′ N. lat., limited entry 

fixed gear and open access fisheries will 

be primarily constrained by 

management measures to protect 

bocaccio. Fishing will be prohibited 

between the 20–fm (37–m) and 150–fm 

(274–m) depth contours throughout the 

year. The Council recommended an 

exception to this prohibition for 

commercial vessels using hook-and-line 

gear with no more than 12 hooks per 

line and up to 1 lb (.45 kg) weight per 

line, using hooks no larger than 

‘‘Number 2’’ hooks, which measure 11 

mm (0.44 inches) point to shank. This 

type of gear is used by vessels fishing 

for Pacific sanddabs, an abundant 

species that does not usually co-occur 

with overfished species. Hook-and-line 

vessels will also be permitted to fish in 

waters of 20–60 fm (37–110 m) depths 

during July and August. In addition to 

these depth closures, the CCAs will 

remain closed to fishing offshore of 20 

fm (37 m).

Anticipating inseason adjustments to 

depth-based management measures, 

designed to protect overfished species 

while allowing the harvest of healthy 

groundfish stocks, the states of Oregon 

and California supplied coordinates for 

two additional depth contours. A 50–fm 

(91–m) depth contour off the state of 

Oregon and/or a 150–fm (270–m) depth

956 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

contour between 46°16′ N. lat. and 

38°N. lat. may be implemented at any 

time during 2003 through an inseason 

action.

Recreational fisheries off Washington, 

Oregon, and California north of 40°10′

N. lat. will be subject to fewer depth 

restrictions than the commercial 

fisheries, primarily because most 

recreational vessels tend to operate in 

the nearshore area inside State waters. 

Off Washington, recreational fishing for 

groundfish and halibut will be 

prohibited inside the YRCA, a C-shaped 

closed area off the northern Washington 

coast. Coordinates for the YRCA will be 

defined at 50 CFR 660.304(d). Off 

Oregon and California north of 40°10′ N. 

lat., recreational fishing for groundfish 

will be closed outside of 27 fm (49 m) 

if either the yelloweye or canary 

rockfish recreational fisheries set asides 

are projected to be achieved.

As in past years, recreational fisheries 

off California south of 40°10′ N. lat., will 

be constrained by depth in order to 

reduce catch of bocaccio and other 

overfished rockfish species. 

Recreational fishing for groundfish will 

be prohibited entirely in waters offshore 

of the 20 fm (37 m) depth contour. The 

CCAs will also remain closed to fishing 

offshore of 20 fm (37 m). Coordinates 

defining the CCAs have changed 

modestly to ensure that the CCAs 

comply with depth-based closures for 

waters off southern California. CCA 

coordinates will be defined at 50 CFR 

660.304(c).

Many of the closed areas and 

boundary lines are generally described 

using a fathom contour line. All of these 

lines, except the 20 fm (37 m) contour 

off California south of 40°10′ N. lat. and 

the 3–nautical mile State management 

line off California, are specifically 

defined in the regulations at IV.A. (19), 

using latitude/longitude waypoints. 

These waypoint coordinates provide 

straight-line boundaries that 

approximate the depth-contours to 

provide clarity to the closed area 

boundaries for enforcement purposes. 

To ensure that consistent nomenclature 

is used coastwide, an area closed to 

fishing for groundfish will be referred to 

as a ‘‘Groundfish Conservation Area’’ in 

general, regardless of whether the 

boundaries of that area change during 

the year. The YRCA and the CCA are 

defined by coordinates that are fixed 

throughout the year. The larger, gear or 

sector-specific closed areas described by 

depth contour boundaries for the 2003 

fishing year will be referred to as 

‘‘Rockfish Conservation Areas,’’ or 

RCAs. For example, there will be both 

a trawl RCA and a non-trawl RCA north 

of 40°10′ N. lat. Boundaries for the RCAs 

will be referred to as either the ‘‘inshore 

boundary,’’ meaning the RCA boundary 

or borderline that is closest to shore, or 

the ‘‘offshore boundary,’’ meaning the 

RCA boundary or borderline that is 

farthest offshore.

At its September meeting, the Council 

adopted the State of California’s 

recommendation to create a California 

Rockfish Conservation Area (CRCA) in 

waters south of 40°10′ N. lat. To ensure 

consistent coastwide nomenclature, this 

area will be referred to as an RCA in 

Federal regulations. NMFS anticipates 

that the Council and the State of 

California may continue to refer to the 

CRCA in management discussions. This 

RCA south of 40°10′ N. lat. will be an 

area of restricted or no fishing intended 

to protect overfished rockfish species. 

This restricted area is proposed as ocean 

waters of 20–250 fm (37–457 m) depth 

between 40°10′ N. lat. and 38° N. lat and 

waters of 20–150 fm (37–274 m) depth 

between 38° N. lat. and the U.S. border 

with Mexico. The restrictions for that 

area that apply to the groundfish 

fisheries and the exceptions to those 

restrictions are described earlier in the 

section on depth based management. 

Any vessel allowed to fish within the 

CRCA based on an exception to a fishing 

restriction would be required to 

accommodate a State or Federal 

observer, if requested. In creating this 

RCA, the Council and the State of 

California wished to ensure that they 

had accounted for all fisheries that 

operate in waters where overfished 

rockfish species occur, whether State or 

federally managed. Several of the 

restrictions within the RCA affect only 

State-managed species and will be 

implemented through State regulations. 

Other restrictions affect federallymanaged species other than groundfish, 

such as salmon, and will be 

implemented through Federal salmon 

regulations.

Vessel Monitoring System (VMS)

Routine monitoring of the fishing fleet 

is used to ensure that vessel operators 

comply with fisheries regulations. 

Traditional monitoring techniques 

include the monitoring of fisheries from 

air and surface craft, observer programs 

and analysis of catch records and vessel 

logbooks. The efficiency of these 

surveillance techniques can be 

dramatically enhanced by the addition 

of a VMS. VMS is a tool that is 

commonly used to monitor vessel 

activity in relationship to geographically 

defined management areas where 

fishing activity is restricted. VMS 

transmitters installed aboard each vessel 

automatically determine the vessel’s 

location and transmit that position to a 

processing center via a communication 

satellite where the information is 

validated and analyzed before being 

disseminated for fisheries management, 

surveillance and enforcement purposes. 

Transmitters are designed to be tamper 

resistant and automatic.

Time area closures have long been 

used to restrict fishing activity in the 

Pacific Coast groundfish fishery in order 

to keep harvests within sector 

allocations and at sustainable levels or 

to prohibit the catch of certain species. 

Until September 2002, geographically 

defined areas tended to be in the 

nearshore area or defined by simple 

latitude lines. On September 13, 2002, 

NMFS published an emergency rule that 

established a Darkblotched Rockfish 

Conservation Area for the Pacific Coast 

groundfish fishery (67 FR 57973), a large 

irregularly shaped geographical area 

defined by a series of latitudinal and 

longitudinal coordinates that extends far 

offshore with much activity being 

beyond the range of State enforcement 

capabilities. Coastwide, depth-based 

areas defined for 2003 are similarly 

defined. Traditional enforcement of 

time areas closures is most effective 

when the geographical areas are 

nearshore, small, and defined by simple 

line. Therefore, management and 

enforcement of the large irregularly 

shaped areas proposed for the Pacific 

Coast groundfish fishery would be 

greatly enhanced if a VMS program 

were established. The Council 

recommended that NMFS move forward 

in developing a VMS program with the 

intention of having a system in place by 

mid-year 2003.

For October-December 2002, 

Washington and Oregon were able to 

monitor mid-water fisheries for 

yellowtail and widow rockfish in the 

DBCA through a vessel declaration 

process. The declaration process 

required vessels intending to fish within 

the closed area with mid-water gear to 

declare their intentions to the States. 

The States were able to fund this 

process because each vessel was limited 

to two trips per 2–month period, which 

also limited the number of declarations 

the States would have to track. In 2003, 

the States will not be able to monitor 

fisheries occurring within the closed 

areas with a declaration process because 

they are unable to fund such a process. 

Federal regulations proposing 

implementation of a VMS system will 

address the possible need for a Federal 

declaration system in conjunction with 

VMS coverage.

II. Commercial and Recreational 

Fisheries

Since 1994, the non-tribal commercial 

groundfish fishery has been divided into

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 957

limited entry and open access sectors, 

each with its own set of allocations and 

management measures. Species or 

species group allocations between the 

two sectors are based on the relative 

amounts of a species or species group 

taken by each component of the fishery 

during the 1984–1988 limited entry 

permit qualification period (50 CFR 

660.332). The FMP allows suspension of 

this allocation formula for overfished 

species when changes to the traditional 

allocation formula are needed to better 

protect overfished species (FMP, section 

5.3.2).

Historically, groundfish species and/

or species groups have not been 

allocated between the commercial and 

recreational fisheries. Fishery managers 

instead estimated the amount that 

would be taken in the recreational 

fisheries and set that amount aside 

before determining the allowable 

harvest for the non-tribal commercial 

sectors. For 2003, the Council has 

recommended adopting nearshore 

groundfish allocations between the 

recreational and commercial fisheries. 

These allocations were proposed by the 

States of Oregon and California for 

waters off their coasts north and south 

of 40°10′ N. lat. and are intended to 

maintain the ratio between recreational 

and commercial landings 2000. Most of 

the fish subject to the allocation will be 

taken in State waters, but State-Federal 

management of these nearshore species 

is coordinated through the Council. 

Commercial groundfish fishing is 

prohibited in Washington State waters.

Groundfish species or species group 

allocations and set asides for the tribal 

and non-tribal sectors, and between the 

different non-tribal commercial and 

recreational sectors, are detailed in 

Tables 1a and 1b. All OYs, allocations 

and set asides are expressed in terms of 

total catch. The limited entry/open 

access allocations for bocaccio, canary, 

darkblotched, yelloweye rockfish, and 

the nearshore rockfish species group 

would be suspended to allow the 

Council to better develop management 

measures that provide harvest 

opportunity for more abundant stocks 

while protecting overfished stocks. 

Estimates of trip-limit induced discards 

are taken ‘‘off the top’’ and in 

accordance with the bycatch and 

discard analysis described earlier in this 

notice before setting the non-tribal 

sector allocations, except for estimates 

of sablefish discards as explained in the 

footnotes to Table 1a. Landed catch 

equivalents are the harvest goals used 

when adjusting trip limits and other 

management measures during the 

season. Estimated bycatch of yellowtail, 

widow, canary, and darkblotched 

rockfish in the offshore whiting fishery 

is also deducted from the limited entry 

allocations before determining the 

landed catch equivalents for the target 

fisheries for widow and yellowtail 

rockfish.

Open Access Allocations

The open access fishery is composed 

of vessels that operate under the OYs, 

quotas, and other management measures 

governing the open access fishery, using 

(1) exempt gear or (2) longline or pot 

(trap) gear fished from vessels that do 

not have limited entry permits endorsed 

for that gear. Exempt gear includes all 

types of legal groundfish fishing gear 

except groundfish trawl, longline, and 

pots. (Exempt gear includes trawls used 

to harvest pink shrimp, spot or 

ridgeback prawns (shrimp trawls) and 

halibut or sea cucumbers south of Pt. 

Arena, CA (38°57′30′′ N. lat.)

Open access allocations are derived 

by applying the open access allocation 

percentages to the commercial OY. The 

commercial OY is the total catch OY 

after subtracting any tribal allocations 

and set-asides for recreational fisheries 

or compensation fishing for conducting 

resource surveys. For those species in 

which the open access share would 

have been less than 1 percent, no open 

access allocation is specified unless 

significant open access effort is 

expected.

Limited Entry Allocations

The limited entry fishery is the 

fishery composed of vessels using 

limited entry gear fished pursuant to the 

OYs, quotas, and other management 

measures governing the limited entry 

fishery. Limited entry gear includes 

longline, pot, or groundfish trawl gear 

used under the authority of a valid 

limited entry permit issued under the 

FMP, affixed with an endorsement for 

that gear. Groundfish trawl gear 

excludes shrimp trawls used to harvest 

pink shrimp, spot or ridgeback prawns, 

and other trawls used to fish for 

California halibut or sea cucumbers 

south of Pt. Arena, CA. A sablefish 

endorsement is also required for a vessel 

to operate in the limited entry primary 

fixed gear season for sablefish.

The limited entry allocation (in total 

catch) is the OY reduced by (1) setasides, if any, for treaty tribal fisheries, 

recreational fisheries, or compensation 

fishing for participation in resource 

surveys (which results in the 

commercial OY or quota); and (2) the 

open access allocation. (Allocations for 

Washington coastal tribal fisheries are 

discussed in Section V. and, for Pacific 

whiting, at paragraph IV.B.(3).)

Following these procedures, the 

Regional Administrator calculated the 

amounts of allocations that are 

presented in Table 1a of this document. 

Unless otherwise specified, the limited 

entry and open access allocations would 

be treated as OYs or harvest guidelines 

in 2003. There may be slight 

discrepancies from the Council’s 

recommendations due to rounding.

III. 2003 Management Measures

Before 2000, the major goals of 

groundfish management were to prevent 

overfishing while achieving the OYs 

and to provide year-round fisheries for 

the major species or species groups. 

Over time, however, it became apparent 

that a number of species could not 

continue to be harvested year-round at 

a constant harvest rate. New legislative 

mandates under the Magnuson-Stevens 

Act (as amended by the Sustainable 

Fisheries Act in 1996) gave highest 

priority to preventing overfishing and 

rebuilding overfished stocks to their 

MSY levels. The National Standard 

Guidelines at 50 CFR 600.310 

interpreted this as ‘‘weak stock 

management,’’ which means that 

harvest of more abundant stocks may 

need to be curtailed to prevent 

overfishing or to rebuild overfished 

stocks.

Nine FMP species were declared 

overfished as of March 2002 (lingcod, 

bocaccio, POP, canary rockfish, cowcod, 

widow rockfish, darkblotched rockfish, 

yelloweye rockfish and Pacific whiting). 

Of the management measures intended 

to protect these species, measures for 

canary and darkblotched rockfish 

protection in the north and bocaccio 

protection in the south are the most 

constraining, because both species are 

broadly distributed on the continental 

shelf. Canary rockfish management is 

constraining because canary rockfish are 

caught directly or incidentally in most 

West Coast fisheries (groundfish and 

non-groundfish.) In order to rebuild 

these overfished species while allowing 

harvest of more abundant stocks, the 

Council chose management measures 

that prohibit bottom trawling over large 

portions of the continental shelf, where 

lingcod, bocaccio, canary rockfish, 

cowcod, widow rockfish, yelloweye 

rockfish, and, to a lesser extent, POP 

and darkblotched rockfish occur. As 

discussed earlier in this notice, the 

depth based management measures 

introduced for 2003 are gear-specific 

and have been crafted to maximize 

fishing opportunity for more abundant 

stocks in times when and areas where 

bycatch and discard of overfished and 

depleted stocks is estimated to be 

lowest.

958 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

Management measures for the limited 

entry fishery are found in section IV. 

Most cumulative trip limits, size limits, 

and seasons for the limited entry fishery 

are set out in Tables 3 and 4 of section 

IV. However, the limited entry nontrawl 

sablefish fishery, the midwater trawl 

fishery for Pacific whiting, and the 

hook-and-line fishery for black rockfish 

off Washington are managed separately 

from the majority of the groundfish 

species and are not fully addressed in 

the tables. The management structure 

for these fisheries has not changed since 

2002, except for the level of trip limits 

for sablefish and Pacific whiting, and is 

described in paragraphs IV.B.(2)-(4) of 

section IV. Other provisions for the 2002 

fisheries not explicitly addressed above 

would remain in effect for 2003 and are 

repeated in section V. of this document.

After hearing proposals and advice 

from its advisory entities and public 

testimony at its September 2002 

meeting, the Council recommended the 

following actions for management in 

2003.

Limited Entry Trawl

For the limited entry trawl fishery, the 

Council recommended a suite of gear 

restrictions, area closures and 

cumulative trip limits designed to allow 

fishing with gear in times and areas 

where incidental catch of overfished or 

depleted species will be minimized. In 

2002, limits for some species groups 

were more varied than those proposed 

for 2003 because the 2002 limits were 

set to encourage (higher limits) or 

discourage (lower limits) fishing in 

different depths. Because the Council 

has recommended depth based closures 

for 2003, trip limits for those species 

taken in areas that remain open vary 

less than in 2002. Many of the more 

abundant groundfish stocks, such as the 

suite of flatfish species, are harvested 

almost exclusively with trawl gear, 

rather than with hook-and-line gear. 

Similarly to closed areas designed to 

protect overfished species taken with 

trawl gear, the limited entry trawl trip 

limit regime for more abundant stocks is 

gear-specific.

Flatfish fisheries are managed with 

more restrictive trip limits and an 

expanded closed area during the 

summer months, when participation is 

greater and trawl tows for flatfish are 

more likely to encounter overfished 

species. Dover sole, sablefish, 

thornyhead (DTS) complex limits vary 

only slightly throughout the year 

because fishing for these species is 

expected to largely take place on the 

continental slope, beyond the offshore 

boundary of the trawl RCAs. North of 

40°10′ N. lat., the trawl RCA is primarily 

intended to protect canary and 

darkblotched rockfish; south of 40°10′

N. lat., the trawl RCA is primarily 

intended to protect bocaccio.

As in 2002, trawl-caught lingcod 

retention would be permitted 

throughout the year, with higher limits 

in the summer months. Lingcod caught 

incidentally during winter trawl 

fisheries would otherwise be discarded 

and thereby increase the overall lingcod 

discard level in the trawl fisheries. The 

lingcod landings limits of 800 lb (363 

kg) per 2–month period in the winter 

months and 1,000 lb (454 kg) per 2–

month period in the summer months are 

not high enough to give trawlers an 

incentive to target lingcod. Total lingcod 

catch is expected to be well under the 

lingcod OY due to fishery restrictions 

intended to protect other overfished 

species.

For 2003, the Council recommended 

continuing the use of differential trip 

limits for limited entry trawlers 

operating with different trawl gear 

configurations: bottom trawl with 

footropes greater than 8 inches (20.5 cm) 

in diameter (large footrope); bottom 

trawl with footropes smaller than 8 

inches (20.5 cm) in diameter (small 

footrope); and midwater or pelagic 

trawl. Trawling with footropes that have 

roller gear or other large gear designed 

to bounce over tough rock piles tends to 

allow those vessels greater access to 

rocky areas where several of the 

overfished species congregate. 

Therefore, landings of shelf rockfish are 

prohibited if large footrope trawls (such 

as roller gear) are used (or are on board 

the vessel); small amounts of shelf 

rockfish bycatch may be landed if small 

footrope trawls are used; and, targeting 

more abundant shelf rockfish stocks is 

encouraged only if midwater trawls are 

used. Midwater trawl gear generally has 

very low bycatch of overfished species 

because most of those species aggregate 

on or near the ocean bottom, where midwater trawl gear does not operate. To 

further ensure that large footrope trawl 

gear is not used in nearshore and 

continental shelf areas, bottom trawling 

with large footrope gear is prohibited 

shoreward of the RCAs. Within the 

RCAs, bottom trawling will be 

prohibited for all groundfish and midwater trawling will be permitted only 

for Pacific whiting, widow rockfish and 

yellowtail rockfish north of 40°10′ N. 

lat. and only for whiting and widow 

rockfish south of 40°10′ N. lat. If a vessel 

fishes in an RCA, it may not participate 

in any fishing on that same trip that is 

inconsistent with the restrictions that 

apply within the RCA. For example, if 

a vessel participates in the shrimp 

fishery within the RCA, the vessel 

cannot on the same trip participate in 

the DTS fishery outside the RCA. 

Additionally, only one trawl gear type 

will be permitted on board per fishing 

trip. Cowcod prohibitions and CCAs 

apply to limited entry trawl vessels, 

although there are few limited entry 

trawl vessels operating south of Point 

Conception in CCA waters.

Large footrope trawls may still be 

used for deepwater fisheries where 

fewer overfished species are 

encountered. These fisheries primarily 

take Dover and rex soles, thornyheads, 

sablefish, and deepwater rockfish. 

Higher limits of yellowtail and widow 

rockfish are available when those 

species are taken with midwater trawl 

gear during the primary whiting season. 

Yellowtail rockfish taken with small 

footrope gear is restricted to 1,000 lb 

(454 kg) per month unless it is taken 

with flatfish, or taken during NovemberDecember. These combined yellowtail 

rockfish management measures are 

intended to allow yellowtail rockfish 

retention in fisheries, times and areas 

where incidental harvest of overfished 

species is lower.

Limited Entry Fixed Gear

Similar to the limited entry trawl 

fisheries, trip limit opportunities and 

area closures in the limited entry fixed 

gear fisheries are arranged to minimize 

opportunities for intercepting 

overfished species. As discussed earlier, 

limited entry fixed gear fisheries will be 

closed in times when and areas where 

they are expected to intercept 

overfished species.

North of 40°10′ N. lat., management 

measures to protect yelloweye rockfish 

constrain the limited entry fixed gear 

fishery by prohibiting those vessels from 

operating in an RCA of 27–100 fm (49–

183 m) depths. Washington State waters 

(shore to 3 nm) are closed to commercial 

groundfish fishing and the 27 fm (49 m) 

contour is entirely within State waters, 

which means that limited entry fixed 

gear vessels operating off Washington 

will not have nearshore fishing 

opportunities. South of the Washington/

Oregon border at 46°16′ N. lat. and north 

of 40°10′ N. lat., the primary limited 

entry fixed gear fishing opportunity 

shoreward of the RCA will be for 

nearshore rockfish. Similar to 2002, 

fisheries for minor nearshore rockfish 

north of 40°10′ N. lat. are managed with 

sublimits for species other than black 

and blue rockfish, to encourage targeting 

on these more abundant nearshore 

rockfish species.

South of 40°10′ N. lat., the limited 

entry fixed gear RCA is in 20–150 fm 

(37–274 m) depths to protect bocaccio 

and other overfished rockfish. In 2001

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 959

and 2002, this fishery and the open 

access hook-and-line fishery had season 

structures tied to that of the recreational 

fishery south of 40°10′ N. lat. This 

season structure link was intended to 

facilitate enforcement, so that similar 

gear types would be either on or off the 

water at the same time. For 2003, the 

recreational and commercial fisheries 

will be separated because the 

recreational season has been shifted to 

a six month July-December block. If 

commercial hook-and-line fisheries 

were restricted to July-December, key 

fishing and marketing months in spring 

and early summer would be closed. Trip 

limits for species available in the open 

inshore area tend to be higher in the 

summer months. For the first time in 

2003, species in the minor nearshore 

rockfish complex in the south will be 

managed with different trip limits for a 

shallow nearshore group, a deeper 

nearshore group, and California 

scorpionfish (shallow and deeper 

nearshore groups defined at IV.A.(20) 

and in Table 2.) These groups will be 

managed separately because the Council 

expects an increase in nearshore fishing 

effort due to fishing being prohibited in 

the RCA and wishes to spread that effort 

through the different minor nearshore 

species that will be available shoreward 

of the RCA. Cowcod prohibitions and 

closures continue to apply to limited 

entry, fixed gear vessels.

Limited entry fixed gear fisheries for 

sablefish will likely be concentrated 

offshore of the RCAs north and south of 

40°10′ N. lat. Larger sablefish, which 

sell for a higher price per pound than 

small sablefish, tend to be found farther 

offshore. The primary sablefish fishery 

will again be held from April 1 through 

October 31 north of 36° N. lat. Minor 

slope rockfish are often caught in 

association with sablefish, therefore 

vessels will be permitted minor slope 

rockfish landings of up to 25 percent of 

the weight of sablefish landed during 

the months of March through October. 

Minor slope rockfish may not be landed 

unless taken with sablefish so as to 

discourage directed targeting on that 

complex. The northern overfished slope 

rockfish species, darkblotched rockfish 

and POP, are not commonly caught with 

fixed gear. Historically, yelloweye 

rockfish have been caught incidentally 

in hook-and-line sablefish fisheries. In 

2003, however, hook-and-line sablefish 

fisheries will be moved offshore of 

yelloweye rockfish habitat through 

implementation of the RCAs. Yelloweye 

rockfish retention will again be 

prohibited in the 2003 limited entry 

fixed gear fisheries.

As in 2001–2002, limited entry fixed 

gear fishing for lingcod will be 

prohibited during January through April 

and during November through 

December. These closures are intended 

to protect nest-guarding lingcod during 

the spawning and nesting season. Nestguarding lingcod are more available to 

fixed gear than to trawl gear, because 

lingcod nest in rocky habitat that tears 

trawl gear while line gear may be used 

successfully in rocky areas. Winter 

closures for fixed gear are intended to 

eliminate fixed gear lingcod targeting.

Open Access Nontrawl Gear (Hookand-line, Troll, Pot, Setnet, Trammel 

Net)

The open access nontrawl fishery is 

managed separately from the limited 

entry fixed-gear fishery, but overfished 

species protection measures are similar 

for both sectors. As in the past, open 

access cumulative trip limits continue 

to be applied mostly to 2–month 

periods, and thornyheads may not be 

taken and retained north of 34°27′ N. lat. 

Season structuring and RCAs are similar 

to those for the limited entry fixed gear 

fisheries, and implemented to protect 

the same overfished species. The 

lingcod fishery for all open access 

nontrawl gears is also subject to the 

same closures and size limits as the 

limited entry fixed gear fisheries. 

Similar to 2002, fisheries for minor 

nearshore rockfish north of 40°10′ N. lat. 

are managed with sublimits for species 

other than black and blue rockfish, to 

encourage targeting on these more 

abundant nearshore rockfish species. 

Cowcod prohibitions and closures apply 

to all open access vessels.

Open access cumulative limits may 

exceed those for limited entry. If a 

vessel with a limited entry permit uses 

open access gear (including exempted 

trawl gear) and the open access 

cumulative limit is larger, the vessel 

will be constrained by the smaller, 

limited entry cumulative limit for the 

entire cumulative period.

Open Access Exempted Trawl Gear

Open access exempted trawl gear 

(used to harvest ridgeback prawns, 

California halibut, sea cucumbers, pink 

shrimp, or spot prawns in Oregon) is 

managed with both ‘‘per trip’’ limits, 

cumulative trip limits, and area 

closures. These trip limits are similar to 

those in 2002, and the species-specific 

open access limits apply but may not 

exceed the overall groundfish limits. 

The groundfish limits in the pink 

shrimp fishery are 500 lb (227 kg) of 

groundfish per day, not to exceed 1,500 

lb (680 kg) per trip in the pink shrimp 

fishery. For other exempted trawl gears, 

there is a 300 lb (136 kg) per trip limit 

of groundfish. The pink shrimp fishery 

is subject to species-specific limits that 

are different from other open access 

limits for lingcod, canary rockfish, and 

sablefish. As with open access nontrawl 

gears, thornyheads may not be taken 

and retained north of 34°27′ N. lat. 

RCAs for the limited entry trawl fishery 

also apply to open access exempted 

trawl fisheries south of 40°10′ N. lat. 

Cowcod prohibitions and closures apply 

to all open access vessels.

South of 40°10′ N. lat., the RCAs for 

exempted trawl gear are similar to those 

for limited entry trawl gear. Between 

40°10′ N. lat. and 38° N. lat., trawling is 

prohibited in 60–250 fm (110–457 m) 

depths (50–250 fm (91–457 m) in 

January-February) and large footrope 

trawling is prohibited shoreward of the 

RCA. Between 38° N. lat. and 34°27′ N. 

lat., trawling is prohibited in 60–150 

(110–457 m) depths (50–250 fm (91–457 

m) in January-February) and large 

footrope trawling is prohibited 

shoreward of the RCA. From 34°27′ N. 

lat. to the U.S. border with Mexico, 

trawling is prohibited in 100–150 fm 

(183–274 m) depths and large footrope 

trawling is prohibited shoreward of the 

RCA.

In addition to the trip limit 

restrictions and area closures south of 

40°10′ N. lat., all three States are 

requiring that vessels operating in their 

pink shrimp trawl fisheries use finfish 

excluders. The States of Washington 

and California have banned trawling for 

spot prawns, requiring that spot prawn 

fishery participants use low bycatch pot 

gear. Oregon is in the process of 

considering whether to similarly ban 

trawling for spot prawns. The State of 

California is also requiring that 

ridgeback shrimp trawlers use finfish 

excluder devices, similar to 

requirements in the more northern pink 

shrimp trawl fishery.

Recreational Fishery

Recreational fisheries effort has also 

been constrained to protect overfished 

species, particularly for lingcod, canary 

rockfish, bocaccio, and yelloweye 

rockfish, which have significant 

recreational catches. Washington, 

Oregon, and California each proposed, 

and the Council recommended, different 

combinations of seasons, bag limits, and 

size limits to best fit the needs of their 

recreational fisheries, while also 

meeting conservation goals.

For lingcod, Washington proposed 

closing their recreational fishery for 5 

months (January 1 - March 15, October 

15 - December 31) and maintained its 2 

fish bag limit and its 24 inch (61 cm) 

minimum size limit. For Oregon and 

California north of 40°10′ N. lat., the 

States proposed increasing the lingcod 

bag limit to 2 fish, and continuing the

960 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

year-round fishery and 24 inch (61 cm) 

minimum size limit. For California, 

south of 40°10′ N. lat., California 

proposed maintaining its 2–lingcod bag 

limit and 24- inch (61–cm) size limit, 

but restricting its fishery to a 6- month 

season of July-December.

Recreational fisheries management off 

Washington and Oregon will again be 

shaped this year by a need to maintain 

low yelloweye rockfish catch. Measures 

taken to protect yelloweye rockfish in 

2002 will be maintained and expanded 

upon. Washington also proposed 

maintaining its 10 rockfish bag limit, 

but reducing its canary rockfish sublimit 

to 1 fish and prohibiting yelloweye 

rockfish retention. In the past, Oregon 

has had an overall rockfish bag limit of 

10 fish. For 2003, Oregon proposed 

including rockfish within an overall 10 

marine fish bag limit, a category that 

includes all marine fish except salmon, 

tuna, surfperch, sanddab, lingcod and 

baitfish (herring, anchovy, smelt, and 

sardine.) For Oregon anglers who take 

marine fish other than rockfish, this 

marine fish bag limit will reduce the 

amount of available rockfish. Within the 

10 marine fish bag limit, Oregon has 

proposed a sublimit of no more than one 

canary rockfish and no more than one 

yelloweye rockfish. In reviewing the 

take of yelloweye rockfish in their 

recreational fisheries, the States of 

Washington and Oregon found that 

yelloweye rockfish is most frequently 

taken by vessels that travel offshore to 

target Pacific halibut. However, 

yelloweye rockfish are not taken while 

the vessel is fishing for halibut, but 

rather after the vessel has completed its 

halibut fishing and is headed for port. 

Therefore, prohibiting the retention of 

yelloweye rockfish when halibut are on 

the vessel should eliminate the directed 

harvest of yelloweye rockfish during 

halibut fishing trips, without causing 

discard of incidentally-caught 

yelloweye rockfish. Oregon has 

proposed prohibiting the retention of 

yelloweye rockfish during its all-depth 

halibut fisheries. Washington has 

proposed prohibiting all yelloweye 

rockfish retention off its shore, and will 

also prohibit recreational fishing for 

groundfish and halibut within the 

YRCA.

Recreational fishing restrictions 

proposed by California are intended to 

ensure that fishing mortality does not 

exceed limits associated with rebuilding 

plans for bocaccio, canary rockfish, 

cowcod, and lingcod. In 2001 and 2002, 

California’s recreational fisheries 

management measures were not 

sufficiently conservative to prevent their 

fisheries from exceeding their set asides 

for overfished rockfish species. 

Therefore, California has proposed 

notably more restrictive measures for 

2003. North of 40°10′ N. lat., California 

recreational management measures will 

continue to be similar to those for 

waters off Oregon. South of 40°10′ N. 

lat., where the significant majority of 

California recreational fisheries occur, 

recreational fishing will be closed 

entirely January through June and open 

only shoreward of 20 fm (37 m) July 

through December. The season was 

restructured to maximize recreational 

harvest opportunity while ensuring that 

nearshore groundfish, California 

scorpionfish, and lingcod shoreward of 

20 fm (37 m) are not overharvested. 

California proposed to maintain its 10 

rockfish bag limit, but set that within a 

10 fish nearshore groundfish bag limit, 

similar to Oregon’s marine fish bag 

limit. Within the nearshore groundfish 

limit, no more than 2 fish may be rock 

or kelp greenling and no more than 

three fish may be cabezon. Within the 

10–rockfish bag limit, no more than two 

may be shallow nearshore rockfish. 

Unlike in previous years, bocaccio, 

canary rockfish and yelloweye rockfish 

retention will be prohibited. As with the 

commercial fisheries, cowcod retention 

will continue to be prohibited and 

recreational fishing within the CCAs 

offshore of 20 fm (37 m) will be 

prohibited.

Council Revisions to Its Management 

Measures Recommendations

At its October 28 through November 

1, 2002 meeting in Foster City, CA, the 

Council made recommendations to 

modestly alter some of the management 

measures recommendations it had made 

at its September 2002 meeting. These 

recommendations were made at the 

November meeting, when the public 

had not expected to have opportunity to 

comment on 2003 management 

measures. In addition, these are minor 

changes that need not be in place on 

January 1. 2003. Thus, NMFS is 

proposing the Council’s November 

recommendations as part of this 

proposed rule, but will not implement 

them for January-February 2003 via the 

emergency rule implementing 

management measures for those two 

months. The Council made the 

following recommended revisions to its 

September 2002 management measures 

recommendations, all of which are 

minor and are not expected to alter the 

overall effect of this management 

package on the environment:

1. For vessels participating in the 

open access exempted trawl fishery for 

California halibut south of 38°57′30′′ N. 

lat., continue overall groundfish 300 lb 

(136 kg) per trip limit, provided that 

weight of groundfish landed does not 

exceed weight of non-groundfish 

species landed. However, allow up to 

100 lb (45 kg) of groundfish to be landed 

without the vessel having to meet that 

ratio requirement, provided that at least 

one California halibut is landed.

2. For vessels participating in the 

open access exempted trawl fishery for 

California halibut south of 38°57′30′′ N. 

lat. the monthly flatfish cumulative 

limit of 3,000 lb (1,361 kg), no more 

than 300 lb (136 kg) of which may be 

species other than Pacific sanddabs, is 

proposed to be revised so that the 

overall monthly cumulative limit is 

retained, but no more than 300 lb (136 

kg) of that cumulative amount may be 

species other than Pacific sanddabs, 

sand sole, starry flounder, rock sole, 

curlfin sole, or California scorpionfish. 

Vessels fishing for sea cucumber with 

open access exempted trawl gear that 

also take California halibut would still 

have access to the 300 lb (136 kg) per 

trip limit, but only if their landings of 

groundfish species did not exceed their 

landings of non-groundfish species.

3. Continue to allow hook-and-line 

fishing for Pacific sanddabs within the 

RCAs south of 40°10′ N. lat. However, 

instead of allowing this fishing with up 

to 5 hooks per fishing line and no more 

than 5 lb (2.27 kg) line weight, allow 

this fishing with up to 12 hooks per 

fishing line and no more than 1 lb (.45 

kg) line weight for commercial fisheries 

and no more than 2 lb (.91 kg) line 

weight for recreational fisheries.

4. Revise the coordinates of the YRCA 

so that they define a ‘‘C-shaped’’ area off 

the north Washington coast instead of 

an ‘‘L-shaped’’ area to better protect 

areas where yelloweye rockfish are 

found, and to be consistent with the 

measures proposed for the recreational 

fisheries for halibut.

Fishing Communities and Impacts

The Magnuson-Stevens Act requires 

that actions taken to implement FMPs 

be consistent with the 10 National 

Standards, one of which requires that 

conservation and management measures 

shall, consistent with the conservation 

requirements of the Act, ‘‘take into 

account the importance of fishery 

resources to fishing communities in 

order to (A) provide for the sustained 

participation of such communities and 

(B), to the extent practicable, minimize 

adverse economic impacts on such 

communities.’’ Commercial and 

recreational fisheries for Pacific coast 

groundfish contribute to the economies 

and shape the cultures of numerous 

fishing communities in Washington, 

Oregon, and California. Meeting the 

needs of fishing communities has

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 961

become increasingly difficult because 

the Council manages an overcapitalized 

fleet that harvests a multi-species 

complex with several overfished 

species. In recommending this year’s 

specifications and management 

measures, the Council accommodated 

some of the needs of those communities 

within the constraints of MagnusonStevens Act requirements to rebuild 

overfished stocks, prevent overfishing, 

and minimize bycatch. In general, the 

Council allows the largest harvest 

possible, consistent with conservation 

needs of the fish stocks.

West Coast groundfish intermix by 

species, which means that interception 

and incidental mortality of overfished 

species is inevitable even if retention of 

a particular species is prohibited. As 

discussed earlier, the Council’s primary 

goal for 2003 was to minimize 

opportunities for incidental take of 

overfished species while allowing as 

much fishing opportunity of more 

abundant stocks as possible. To achieve 

this, the fishing seasons and area 

closures are structured both to 

maximize target species catch while 

minimizing overfished species 

incidental take and to allow minimal 

retention of overfished species where 

incidental take will inevitably occur. 

Larger area closures are intended to 

ensure that few vessels have 

opportunities to fish in waters where 

overfished species commonly occur.

For 2003, the Council continued the 

year-round fishery opportunity that is 

important to the fishing and processing 

sectors for maintaining continuous 

employment opportunities and 

maintaining consistent groundfish 

marketing opportunities. Depth closures 

and gear restrictions would modify the 

cumulative trip limit system to allow 

fishing for at least some groundfish 

species at all times during the year. Gear 

restrictions prohibit bottom trawling 

with roller gear in the nearshore area 

and on the continental shelf and allow 

only the use of midwater trawl on the 

continental shelf where most overfished 

species occur. Small footrope bottom 

trawling is permitted in the nearshore 

area. The concepts behind these trawl 

gear restrictions were first developed for 

the 2000 fishery by a group of industry 

participants who met with the GMT to 

develop measures that would achieve 

conservation goals while minimizing 

effects of the restrictions on the industry 

and coastal communities.

Allowable commercial catches of 

many groundfish remain low in 2003, 

but the Council has tried to structure the 

area closures to provide commercial 

fisheries with greater flexibility in their 

fishing patterns while not increasing the 

overall catches. For example, the 

offshore boundary of the trawl RCA is 

modified in January-February and in 

November-December to allow directed 

fishing for petrale sole in areas where 

and times when petrale sole are known 

to aggregate and to co-occur with fewer 

overfished stocks. New depth based 

closures are intended to allow fisheries 

access to more abundant stocks in the 

offshore and inshore open areas, thereby 

limiting the extent to which fishers and 

related firms would be driven out of 

business. Many commercial groundfish 

fishers have other fishing opportunities 

during the year, and these opportunities 

were taken into account. For example, 

the small-scale commercial fishers (and 

recreational fishers) in southern 

California would (under State 

regulations) still be able to fish for 

certain species in nearshore waters 

while the continental shelf is closed to 

protect overfished species.

Nonetheless, the effects of these 2003 

management measures on some fishers 

and communities will be severe, 

particularly for those without other 

opportunities. For the 2003 fishery, the 

Council proposed stringent harvest 

levels intended to protect and rebuild 

overfished and depleted stocks. In 

addition to constraining OYs for 

overfished stocks, the Council also 

severely restricted harvest on more 

abundant stocks associated with 

overfished stocks. These measures were 

needed to ensure that rebuilding of 

overfished and depleted stocks could 

occur. However, they will cause serious 

socio-economic repercussions as a result 

of these lower harvest levels and the 

consequent lower landings limits.

Distribution of the economic effect of 

the 2003 management measures will 

depend on how well fishers can adapt 

to the restrictions. Some user groups, 

particularly those able to use midwater 

trawl gear, will have a greater 

opportunity to harvest than they would 

have had without gear restrictions, 

because proposed restrictions allow 

fishers to use gear with lower incidental 

catch of the depleted rockfish. Other 

fishers will not be able to maintain a 

viable operation at the reduced harvest 

levels. The Council prepared an EIS for 

this action, which includes a discussion 

of the economic and social effects of 

these management measures on coastal 

communities (see ADDRESSES).

Trip Limit Tables and Management 

Measures

Cumulative trip limits are set into 

tables, with explanations in section IV. 

For 2003, NMFS has separated tables for 

each fishing sector into northern and 

southern area tables. The industry is 

cautioned not to rely on the tables 

alone. The text in Section IV. provides 

cumulative trip limit definitions and 

periods, size limit definitions and 

conversions, and other information that 

cannot be readily included in a table but 

must be understood in order to correctly 

use the tables. For the first time in 2003, 

gear regulations and reference 

coordinates are being proposed as a 

regulatory amendment to the regulations 

at 50 CFR part 660. Historically, NMFS 

has published these regulatory measures 

as annual specifications. The sablefish 

allocations and nontrawl sablefish 

management, Pacific whiting allocations 

and seasons, and ‘‘per trip’’ limits for 

black rockfish off Washington State are 

still presented in text in paragraphs 

IV.B. Trip limits for exempted trawl gear 

in the open access fishery (Table 5 and 

paragraph IV.C.), recreational 

management measures (paragraph 

IV.D.), and tribal allocations and 

management measures (paragraph V.) 

still remain in the text.

Cumulative trip limits are applied 

during the time periods and in the areas 

indicated in Tables 3–5 of Section IV. 

The cumulative trip limit may be taken 

at any time within the applicable 

cumulative trip limit period. All 

cumulative trip limit periods start at 

0001 hours, local time, on the specified 

beginning date.

IV. NMFS Actions

For the reasons stated above, the 

Assistant Administrator for Fisheries, 

NOAA (Assistant Administrator), 

concurs with the Council’s 

recommendations and announces the 

following management actions for 2003, 

including measures that are unchanged 

from 2002 and new measures.

A. General Definitions and Provisions

The following definitions and 

provisions apply to the 2002 

management measures, unless otherwise 

specified in a subsequent Federal 

Register document:

(1) Trip limits. Trip limits are used in 

the commercial fishery to specify the 

amount of fish that may legally be taken 

and retained, possessed, or landed, per 

vessel, per fishing trip, or cumulatively 

per unit of time, or the number of 

landings that may be made from a vessel 

in a given period of time, as follows:

(a) A per trip limit is the total 

allowable amount of a groundfish 

species or species group, by weight, or 

by percentage of weight of legal fish on 

board, that may be taken and retained, 

possessed, or landed per vessel from a 

single fishing trip.

(b) A daily trip limit is the maximum 

amount that may be taken and retained,

962 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

possessed, or landed per vessel in 24 

consecutive hours, starting at 0001 

hours l.t. Only one landing of 

groundfish may be made in that 24–

hour period. Daily trip limits may not be 

accumulated during multiple day trips.

(c) A weekly trip limit is the 

maximum amount that may be taken 

and retained, possessed, or landed per 

vessel in 7 consecutive days, starting at 

0001 hours l.t. on Sunday and ending at 

2400 hours l.t. on Saturday. Weekly trip 

limits may not be accumulated during 

multiple week trips. If a calendar week 

includes days within two different 

months, a vessel is not entitled to two 

separate weekly limits during that week.

(d) A cumulative trip limit is the 

maximum amount that may be taken 

and retained, possessed, or landed per 

vessel in a specified period of time 

without a limit on the number of 

landings or trips, unless otherwise 

specified. The cumulative trip limit 

periods for limited entry and open 

access fisheries, which start at 0001 

hours l.t. and end at 2400 hours l.t., are 

as follows, unless otherwise specified:

(i) The 2–month periods are: January 

1–February 28, March 1–April 30, May 

1–June 30, July 1–August 31, September 

1–October 31, and, November 1–

December 31.

(ii) One month means the first day 

through the last day of the calendar 

month.

(iii) One week means 7 consecutive 

days, Sunday through Saturday.

(2) Fishing ahead. Unless the fishery 

is closed, a vessel that has landed its 

cumulative or daily limit may continue 

to fish on the limit for the next legal 

period, so long as no fish (including, but 

not limited to, groundfish with no trip 

limits, shrimp, prawns, or other 

nongroundfish species or shellfish) are 

landed (offloaded) until the next legal 

period. As stated at 50 CFR 660.302 (in 

the definition of ‘‘landing’’), once the 

offloading of any species begins, all fish 

aboard the vessel are counted as part of 

the landing. Fishing ahead is not 

allowed during or before a closed period 

(see paragraph IV.A.(7)). See paragraph 

IV.A.(9) for information on inseason 

changes to limits.

(3) Weights. All weights are round 

weights or round-weight equivalents 

unless otherwise specified.

(4) Percentages. Percentages are based 

on round weights, and, unless otherwise 

specified, apply only to legal fish on 

board.

(5) Legal fish. ‘‘Legal fish’’ means fish 

legally taken and retained, possessed, or 

landed in accordance with the 

provisions of 50 CFR part 660, the 

Magnuson-Stevens Act, any document 

issued under part 660, and any other 

regulation promulgated or permit issued 

under the Magnuson-Stevens Act.

(6) Size limits and length 

measurement. Unless otherwise 

specified, size limits in the commercial 

and recreational groundfish fisheries 

apply to the ‘‘total length,’’ which is the 

longest measurement of the fish without 

mutilation of the fish or the use of force 

to extend the length of the fish. No fish 

with a size limit may be retained if it is 

in such condition that its length has 

been extended or cannot be determined 

by these methods. For conversions not 

listed here, contact the State where the 

fish will be landed.

(a) Whole fish. For a whole fish, total 

length is measured from the tip of the 

snout (mouth closed) to the tip of the 

tail in a natural, relaxed position.

(b) ‘‘Headed’’ fish. For a fish with the 

head removed (‘‘headed’’), the length is 

measured from the origin of the first 

dorsal fin (where the front dorsal fin 

meets the dorsal surface of the body 

closest to the head) to the tip of the 

upper lobe of the tail; the dorsal fin and 

tail must be left intact.

(c) Filets. A filet is the flesh from one 

side of a fish extending from the head 

to the tail, which has been removed 

from the body (head, tail, and backbone) 

in a single continuous piece. Filet 

lengths may be subject to size limits for 

some groundfish taken in the 

recreational fishery off California (see 

paragraph IV. D.(1)). A filet is measured 

along the length of the longest part of 

the filet in a relaxed position; stretching 

or otherwise manipulating the filet to 

increase its length is not permitted.

(d) Sablefish weight limit conversions. 

The following conversions apply to both 

the limited entry and open access 

fisheries when trip limits are effective 

for those fisheries. For headed and 

gutted (eviscerated) sablefish:

(i) The minimum size for headed 

sablefish, which corresponds to 20 

inches (51 cm) total length for whole 

fish, is 14 inches (36 cm).

(ii) The conversion factor established 

by the State where the fish is or will be 

landed will be used to convert the 

processed weight to round weight for 

purposes of applying the trip limit. (The 

conversion factor currently is 1.6 in 

Washington, Oregon, and California. 

However, the State conversion factors 

may differ; fishers should contact 

fishery enforcement officials in the State 

where the fish will be landed to 

determine that State’s official 

conversion factor.)

(e) Lingcod size and weight 

conversions. The following conversions 

apply in both limited entry and open 

access fisheries.

(i) Size conversion. For lingcod with 

the head removed, the minimum size 

limit is 19.5 inches (49.5 cm), which 

corresponds to 24 inches (61 cm) total 

length for whole fish.

(ii) Weight conversion. The 

conversion factor established by the 

State where the fish is or will be landed 

will be used to convert the processed 

weight to round weight for purposes of 

applying the trip limit. (The States’

conversion factors may differ, and 

fishers should contact fishery 

enforcement officials in the state where 

the fish will be landed to determine that 

State’s official conversion factor.) If a 

state does not have a conversion factor 

for headed and gutted lingcod, or 

lingcod that is only gutted; the 

following conversion factors will be 

used. To determine the round weight, 

multiply the processed weight times the 

conversion factor.

(A) Headed and gutted. The 

conversion factor for headed and gutted 

lingcod is 1.5.

(B) Gutted, with the head on. The 

conversion factor for lingcod that has 

only been gutted is 1.1.

(7) Closure. ‘‘Closure,’’ when referring 

to closure of a fishery, means that taking 

and retaining, possessing, or landing the 

particular species or species group is 

prohibited. (See 50 CFR 660.302.) 

Unless otherwise announced in the 

Federal Register, offloading must begin 

before the time the fishery closes. The 

provisions at paragraph IV.A.(2) for 

fishing ahead do not apply during a 

closed period. It is unlawful to transit 

through a closed area with the 

prohibited species on board, no matter 

where that species was caught, except as 

provided for in the CCA at IV. A.(19).

(8) Fishery management area. The 

fishery management area for these 

species is the EEZ off the coasts of 

Washington, Oregon, and California 

between 3 and 200 nm offshore, 

bounded on the north by the Provisional 

International Boundary between the 

United States and Canada, and bounded 

on the south by the International 

Boundary between the United States 

and Mexico. All groundfish possessed 

between 0–200 nm offshore or landed in 

Washington, Oregon, or California are 

presumed to have been taken and 

retained from the EEZ, unless otherwise 

demonstrated by the person in 

possession of those fish.

(9) Routine management measures. 

Most trip, bag, and size limits, and area 

closures in the groundfish fishery have 

been designated ‘‘routine,’’ which 

means they may be changed rapidly 

after a single Council meeting see 50 

CFR 660.323(b). Council meetings in 

2002 will be held in the months of

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 963

March, April, June, September, and 

November. Inseason changes to routine 

management measures are announced in 

the Federal Register. Information 

concerning changes to routine 

management measures is available from 

the NMFS Northwest and Southwest 

Regional Offices (see ADDRESSES). 

Changes to trip limits are effective at the 

times stated in the Federal Register. 

Once a change is effective, it is illegal 

to take and retain, possess, or land more 

fish than allowed under the new trip 

limit. This means that, unless otherwise 

announced in the Federal Register, 

offloading must begin before the time a 

fishery closes or a more restrictive trip 

limit takes effect.

(10) Limited entry limits. It is 

unlawful for any person to take and 

retain, possess, or land groundfish in 

excess of the landing limit for the open 

access fishery without having a valid 

limited entry permit for the vessel 

affixed with a gear endorsement for the 

gear used to catch the fish (50 CFR 

660.306(p)).

(11) Operating in both limited entry 

and open access fisheries. The open 

access trip limit applies to any fishing 

conducted with open access gear, even 

if the vessel has a valid limited entry 

permit with an endorsement for another 

type of gear. A vessel that operates in 

both the open access and limited entry 

fisheries is not entitled to two separate 

trip limits for the same species. If a 

vessel has a limited entry permit and 

uses open access gear, but the open 

access limit is smaller than the limited 

entry limit, the open access limit cannot 

be exceeded and counts toward the 

limited entry limit. If a vessel has a 

limited entry permit and uses open 

access gear, but the open access limit is 

larger than the limited entry limit, the 

smaller limited entry limit applies, even 

if taken entirely with open access gear.

(12) Operating in areas with different 

trip limits. Trip limits for a species or 

a species group may differ in different 

geographic areas along the coast. The 

following ‘‘crossover’’ provisions apply 

to vessels operating in different 

geographical areas that have different 

cumulative or ‘‘per trip’’ trip limits for 

the same species or species group. Such 

crossover provisions do not apply to 

species that are subject only to daily trip 

limits, or to the trip limits for black 

rockfish off Washington (see 50 CFR 

660.323(a)(1)). In 2002, the cumulative 

trip limit periods for the limited entry 

and open access fisheries are specified 

in paragraph IV.A(1)(d), but may be 

changed during the year if announced in 

the Federal Register.

(a) Going from a more restrictive to a 

more liberal area. If a vessel takes and 

retains any groundfish species or 

species group of groundfish in an area 

where a more restrictive trip limit 

applies before fishing in an area where 

a more liberal trip limit (or no trip limit) 

applies, then that vessel is subject to the 

more restrictive trip limit for the entire 

period to which that trip limit applies, 

no matter where the fish are taken and 

retained, possessed, or landed.

(b) Going from a more liberal to a 

more restrictive area. If a vessel takes 

and retains a groundfish species or 

species group in an area where a higher 

trip limit or no trip limit applies, and 

takes and retains, possesses or lands the 

same species or species group in an area 

where a more restrictive trip limit 

applies, that vessel is subject to the 

more restrictive trip limit for the entire 

period to which that trip limit applies, 

no matter where the fish are taken and 

retained, possessed, or landed.

(c) Operating in two different areas 

where a species or species group is 

managed with different types of trip 

limits. During the fishing year, NMFS 

may implement management measures 

for a species or species group that set 

different types of trip limits (for 

example, per trip limits versus 

cumulative trip limits) for different 

areas. If a vessel fishes for a species or 

species group that is managed with 

different types of trip limits in two 

different areas within the same 

cumulative limit period, then that vessel 

is subject to the most restrictive overall 

cumulative limit for that species, 

regardless of where fishing occurs.

(d) Minor rockfish. Several rockfish 

species are designated with speciesspecific limits on one side of the 40°10 

N. lat. management line, and are 

included as part of a minor rockfish 

complex on the other side of the line.

(i) If a vessel takes and retains minor 

slope rockfish north of 38° N. lat., that 

vessel is also permitted to take and 

retain, possess or land splitnose rockfish 

up to its cumulative limit south of 38°

N. lat., even if splitnose rockfish were 

a part of the landings from minor slope 

rockfish taken and retained north of 38°

N. lat. [Note: A vessel that takes and 

retains minor slope rockfish on both 

sides of the management line in a single 

cumulative limit period is subject to the 

more restrictive cumulative limit for 

minor slope rockfish during that 

period.]

(ii) If a vessel takes and retains minor 

slope rockfish south of 38° N. lat., that 

vessel is also permitted to take and 

retain, possess or land POP up to its 

cumulative limit north of 38° N. lat., 

even if POP were a part of the landings 

from minor slope rockfish taken and 

retained south of 38° N. lat. [Note: A 

vessel that takes and retains minor slope 

rockfish on both sides of the 

management line in a single cumulative 

limit period is subject to the more 

restrictive cumulative limit for minor 

slope rockfish during that period.]

(iii) If a vessel takes and retains minor 

shelf rockfish south of 40°10′ N. lat., 

that vessel is also permitted to take and 

retain, possess, or land yellowtail 

rockfish up to its cumulative limits 

north of 40°10′ N. lat., even if yellowtail 

rockfish is part of the landings from 

minor shelf rockfish taken and retained 

south of 40°10′ N. lat. Widow rockfish 

is included in overall shelf rockfish 

limits for all gear groups. [Note: A vessel 

that takes and retains minor shelf 

rockfish on both sides of the 

management line in a single cumulative 

limit period is subject to the more 

restrictive cumulative limit for minor 

shelf rockfish during that period.]

(e) ‘‘DTS complex.’’ For 2003, there 

are differential trip limits for the ‘‘DTS 

complex’’ (Dover sole, shortspine 

thornyhead, longspine thornyhead, 

sablefish) north and south of the 

management line at 40°10′ N. lat. 

Vessels operating in the limited entry 

trawl fishery are subject to the crossover 

provisions in this paragraph IV.A.(12) 

when making landings that include any 

one of the four species in the ‘‘DTS 

complex.’’

(f) Flatfish complex. For 2003, there 

are differential trip limits for the flatfish 

complex (butter, curlfin, English, 

flathead, petrale, rex, rock, and sand 

soles, Pacific sanddab, and starry 

flounder) north and south of the 

management line at 40°10′ N. lat. 

Vessels operating in the limited entry 

trawl fishery are subject to the crossover 

provisions in this paragraph IV.A.(12) 

when making landings that include any 

one of the species in the flatfish 

complex.

(13) Sorting. It is unlawful for any 

person to ‘‘fail to sort, prior to the first 

weighing after offloading, those 

groundfish species or species groups for 

which there is a trip limit, size limit, 

quota, or commercial OY, if the vessel 

fished or landed in an area during a 

time when such trip limit, size limit, 

commercial optimum yield, or quota 

applied.’’ This provision applies to both 

the limited entry and open access 

fisheries. (See 50 CFR 660.306(h).) The 

following species must be sorted in 

2003:

(a) For vessels with a limited entry 

permit:

(i) Coastwide - widow rockfish, 

canary rockfish, darkblotched rockfish, 

yelloweye rockfish, shortbelly rockfish, 

minor nearshore rockfish, minor shelf 

rockfish, minor slope rockfish,

964 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

shortspine and longspine thornyhead, 

Dover sole, arrowtooth flounder, rex 

sole, petrale sole, arrowtooth flounder, 

other flatfish, lingcod, sablefish, and 

Pacific whiting [Note: Although both 

yelloweye and darkblotched rockfish are 

considered minor rockfish managed 

under the minor shelf and minor slope 

rockfish complexes, respectively, they 

have separate OYs and therefore must 

be sorted by species.]

(ii) North of 40°10′ N. lat. - POP, 

yellowtail rockfish, and, for fixed gear, 

black rockfish and blue rockfish;

(iii) South of 40°10′ N. lat.- minor 

shallow nearshore rockfish, minor 

deeper nearshore rockfish, chilipepper 

rockfish, bocaccio rockfish, splitnose 

rockfish, and Pacific sanddabs.

(b) For open access vessels (vessels 

without a limited entry

permit):

(i) Coastwide - widow rockfish, 

canary rockfish, darkblotched rockfish, 

yelloweye rockfish, minor nearshore 

rockfish, minor shelf rockfish, minor 

slope rockfish, Dover sole, arrowtooth 

flounder, petrale sole, rex sole, other 

flatfish, lingcod, sablefish, Pacific 

whiting, and Pacific sanddabs;

(ii) North of 40°10′ N. lat. - black 

rockfish, blue rockfish, Pacific ocean 

perch, yellowtail rockfish;

(iii) South of 40°10′ N. lat.- minor 

shall nearshore rockfish, minor deeper 

nearshore rockfish, chilipepper rockfish, 

bocaccio rockfish, splitnose rockfish;

(iv) South of Point Conception—

thornyheads.

(14) Limited Entry Trawl Gear 

Restrictions. Limited entry trip limits 

may vary depending on the type of trawl 

gear that is on board a vessel during a 

fishing trip: large footrope, small 

footrope, or midwater trawl gear. No 

more than one type of trawl gear may be 

on board during any single fishing trip.

(a) Types of trawl gear—Large 

footrope, small footrope, and midwater 

or pelagic trawl gears are defined at 50 

CFR 660.302 and 660.322(b).

(b) Cumulative trip limits and 

prohibitions by trawl gear type—(i) 

Large footrope trawl. If Table 3 does not 

provide a large footrope trawl 

cumulative or trip limit for a particular 

species or species group, it is unlawful 

to take and retain, possess or land that 

species or species group if large footrope 

gear is on board. It is unlawful for any 

vessel using large footrope gear to 

exceed large footrope gear limits for any 

species or to use large footrope gear to 

exceed small footrope gear or midwater 

trawl gear limits for any species. It is 

unlawful for any vessel using large 

footrope gear or that has large footrope 

trawl gear on board to fish for 

groundfish shoreward of the RCAs 

defined at paragraph (19) of this section. 

The presence of rollers or bobbins larger 

than 8 inches (20 cm) in diameter on 

board the vessel, even if not attached to 

a trawl, will be considered to mean a 

large footrope trawl is on board.

(ii) Small footrope or midwater trawl 

gear. Cumulative trip limits for canary 

rockfish, chilipepper rockfish, widow 

rockfish, yellowtail rockfish, bocaccio, 

minor shelf rockfish, minor nearshore 

rockfish, and lingcod, as indicated in 

Table 3 to section IV, are allowed only 

if small footrope gear or midwater trawl 

gear is used, and if that gear meets the 

specifications in paragraphs IV.A.(14).

(iii) Midwater trawl gear. Higher 

yellowtail and widow rockfish 

cumulative trip limits are available for 

limited entry vessels using midwater 

trawl gear. Each landing that contains 

yellowtail or widow rockfish is 

attributed to the gear on board with the 

most restrictive trip limit for those 

species. Landings attributed to small 

footrope trawl must not exceed the 

small footrope limit, and landings 

attributed to midwater trawl must not 

exceed the midwater trawl limit. If a 

vessel has landings attributed to both 

types of trawls during a cumulative trip 

limit period, all landings are counted 

toward the most restrictive gear-specific 

cumulative limit.

(iv) More than one type of trawl gear 

on board; trawl gear and non-trawl gear 

on board. The cumulative trip limits in 

Table 3 of Section IV must not be 

exceeded. For the first time in 2003, it 

is prohibited to have more than one type 

of trawl gear on board. It is prohibited 

to have more than one type of limited 

entry trawl gear on board and it is 

prohibited to have both limited entry 

trawl gear and exempted trawl gear on 

board. It is also prohibited to have both 

trawl gear and non-trawl (limited entry 

or open access) gear on board at the 

same time.

(c) State landing receipts. 

Washington, Oregon, and California will 

require the type of trawl gear on board 

to be recorded on the State landing 

receipt(s) for each trip or on an 

attachment to the State landing receipt.

(d) Gear inspection. All trawl gear and 

trawl gear components, including 

unattached rollers or bobbins, must be 

readily accessible and made available 

for inspection at the request of an 

authorized officer. No trawl gear may be 

removed from the vessel prior to 

offloading. All footropes shall be 

uncovered and clearly visible except 

when in use for fishing.

(15) Platooning—limited entry trawl 

vessels. Limited entry trawl vessels are 

automatically in the ‘‘A’’ platoon, unless 

the ‘‘B’’ platoon is indicated on the 

limited entry permit. If a vessel is in the 

‘‘A’’ platoon, its cumulative trip limit 

periods begin and end on the beginning 

and end of a calendar month as in the 

past. No more than one trawl permit 

may be registered to a vessel unless a 

permit is endorsed for both trawl and 

either longline or pot gear and is being 

stacked under § 660.335(c) for use in the 

limited entry fixed gear primary 

sablefish fishery. If a vessel is registered 

for use with more than one permit with 

a trawl endorsement through the fixed 

gear permit stacking program, then the 

vessel owner must designate one trawlendorsed permit as his base trawl 

permit and may only fish in the platoon 

associated with that base trawl permit. 

If a limited entry trawl permit is 

authorized for the ‘‘B’’ platoon, then 

cumulative trip limit periods will begin 

on the 16th of the month (generally 2 

weeks later than for the ‘‘A’’ platoon), 

unless otherwise specified.

(a) For a vessel in the ‘‘B’’ platoon, 

cumulative trip limit periods begin on 

the 16th of the month at 0001 hours, l.t., 

and end at 2400 hours, l.t., on the 15th 

of the month. Therefore, the 

management measures announced 

herein that are effective on January 1, 

2003, for the ‘‘A’’ platoon will be 

effective on January 16, 2003, for the 

‘‘B’’ platoon. The effective date of any 

inseason changes to the cumulative trip 

limits also will be delayed for 2 weeks 

for the ‘‘B’’ platoon, unless otherwise 

specified.

(b) A vessel authorized to operate in 

the ‘‘B’’ platoon may take and retain, but 

may not land, groundfish from January 

1, 2003, through January 15, 2003.

(c) A vessel authorized to operate in 

the ‘‘B’’ platoon will have the same 

cumulative trip limits for the November 

16, 2003, through December 31, 2003, 

period as a vessel operating in the ‘‘A’’

platoon has for the November 1, 2002, 

through December 31, 2002 period.

(16) Permit transfers. Limited entry 

permit transfers are to take effect no 

earlier than the first day of a major 

cumulative limit period following the 

day NMFS receives the transfer form 

and original permit (50 CFR 

660.335(e)(3)). Those days in 2003 are 

January 1, March 1, May 1, July 1, 

September 1, and November 1, and are 

delayed by 15 days (starting on the 16th 

of a month) for the ‘‘B’’ platoon.

(17) Exempted fisheries. U.S. vessels 

operating under an exempted fishing 

permit (EFP) issued under 50 CFR part 

600 are also subject to these restrictions, 

unless otherwise provided in the 

permit. EFPs may include the collecting 

of scientific samples of groundfish 

species that would otherwise be 

prohibited for retention.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 965

(18) Application of requirements. 

Paragraphs IV.B. and IV.C. pertain to the 

commercial groundfish fishery, but not 

to Washington coastal tribal fisheries, 

which are described in Section V. The 

provisions in paragraphs IV.B. and IV.C. 

that are not covered under the headings 

‘‘limited entry’’ or ‘‘open access’’ apply 

to all vessels in the commercial fishery 

that take and retain groundfish, unless 

otherwise stated. Paragraph IV.D. 

pertains to the recreational fishery.

(19) Rockfish Conservation Areas. For 

2003, the Council has introduced 

several RCAs and a YRCA and has 

retained the CCAs used in 2001 and 

2002. Collectively, any geographically 

defined area where specific fishing 

activities are prohibited (closed) or 

otherwise restricted intended to protect 

a particular groundfish species or 

species group or intended to protect a 

complex of species is referred to as a 

Groundfish Conservation Area. The 

YRCA, the CCAs, and the larger depthbased RCAs are Groundfish 

Conservation Areas. Larger RCAs 

intended to protect a complex of 

species, such as overfished shelf 

rockfish species, have boundaries 

defined by a series of coordinates 

intended to approximate particular 

depth contours, such as 100 fm (183 m), 

150 fm (274 m), 250 fm (457,) etc. 

Different gear types or fishing sectors 

may have RCAs with differing 

boundaries.

(a) Yelloweye Rockfish Conservation 

Area. The coordinates of the YRCA are 

defined at § 660.304(d). Recreational 

fishing for groundfish is prohibited 

within the YRCA. It is unlawful for 

recreational fishing vessels to take, 

retain, possess, or land groundfish 

inside the YRCA.

(b) Cowcod Conservation Areas. The 

coordinates of the Cowcod Conservation 

Areas (CCAs) are defined at 

§ 660.304(c). Recreational and 

commercial fishing for groundfish is 

prohibited within the CCAs, except that 

recreational and commercial fishing for 

rockfish and lingcod is permitted in 

waters inside 20–fathoms (36.9–m). It is 

unlawful to take and retain, possess, or 

land groundfish inside the CCAs, except 

for rockfish and lingcod taken in waters 

inside the 20–fathom (36.9–m) depth 

contour, when those waters are open to 

fishing. Commercial fishing vessels may 

transit through the Western CCA with 

their gear stowed and groundfish on 

board only in a corridor through the 

Western CCA bounded on the north by 

the latitude line at 33°00′30′′ N. lat., and 

bounded on the south by the latitude 

line at 32°59′30’’ N. lat.

(c) Limited entry trawl groundfish 

coastwide and open access exempted 

trawl south of 40°10′ N. lat. 

Conservation Area.

(i) The trawl RCA is closed to limited 

entry groundfish trawl fishing coastwide 

and to open access exempted trawl 

fishing (except for pink shrimp 

trawling) south of 40°10′ N. lat. Fishing 

with limited entry groundfish trawl gear 

is prohibited within the trawl RCA 

north of 40°10′ N. lat. and fishing with 

any trawl gear is prohibited within the 

trawl RCA south of 40°10′ N. lat., unless 

that vessel is trawling for pink shrimp. 

Coastwide, it is unlawful to take and 

retain, possess, or land groundfish taken 

with limited entry groundfish trawl gear 

in the trawl RCA. South of 40°10′ N. lat., 

it is unlawful to take and retain, 

possess, or land any species of fish 

taken with any type of trawl gear in the 

trawl RCA. Trawl vessels may transit 

through the trawl RCA, with or without 

groundfish on board, provided all 

groundfish trawl gear is stowed either: 

(1) below deck; or (2) if the gear cannot 

readily be moved, in a secured and 

covered manner, detached from all 

towing lines, so that it is rendered 

unusable for fishing; or (3) remaining on 

deck uncovered if the trawl doors are 

hung from their stanchions and the net 

is disconnected from the doors. These 

restrictions do not apply to vessels 

fishing with midwater trawl gear for 

Pacific whiting or taking and retaining 

yellowtail rockfish or widow rockfish in 

association with Pacific whiting caught 

with midwater trawl gear or to taking 

and retaining yellowtail or widow 

rockfish with midwater trawl gear when 

trip limits are authorized for those 

species (November-December 2003.) If a 

vessel fishes in an RCA, it may not 

participate in any fishing on that trip 

that is inconsistent with the restrictions 

that apply within the RCA. For example, 

if a vessel participates in the pink 

shrimp fishery within the RCA, the 

vessel cannot on the same trip 

participate in the DTS fishery outside of 

the RCA. Nothing in these Federal 

regulations supercede any State 

regulations that may prohibit trawling 

shoreward of the 3 nm State waters 

boundary line.

(ii) Between the U.S. border with 

Canada and 40°10′ N. lat., the trawl RCA 

is defined along an eastern, inshore 

boundary approximating 100 fm (183 m) 

in January through June and October 

through December, and approximating 

75 fm (137 m) in July and August. 

Between 40°10′ N. lat. and 34°27′ N. lat., 

the trawl RCA is defined along an 

eastern, inshore boundary 

approximating 50 fm (91 m) in January 

and February and 60 fm (110 m) in 

March through December. Between 

34°27′ N. lat. and the U.S. border with 

Mexico, along the mainland coast of 

California, the trawl RCA is defined 

along an eastern, inshore boundary 

approximating 100 fm (183 m) 

throughout the year. Between 34°27′ N. 

lat. and the U.S. border with Mexico, 

adjacent to the islands offshore of 

California, the trawl RCA is defined 

along an inshore boundary 

approximating 20 fm (37 m) throughout 

the year. Boundary coordinates are 

provided below at paragraph (e) of this 

section.

(iii) Between the U.S. border with 

Canada and 38° N. lat., the trawl RCA 

is defined along a western, offshore 

boundary approximating 250 fm (457 m) 

in March through October, and 

approximating 250 fm (457 m) with 

some modifications to provide open 

areas to allow winter petrale sole fishing 

in January, February, November, and 

December. Between 38° N. lat. and the 

U.S. border with Mexico, the trawl RCA 

is defined along a western, offshore 

boundary approximating 150 fm (274 m) 

throughout the year. Boundary 

coordinates are provided below at 

paragraph (e) of this section.

(d) Non-Trawl (Limited Entry Fixed 

Gear and Open Access Nontrawl Gears) 

Groundfish Conservation Area.

(i) The non-trawl RCA is closed to 

non-trawl gear (limited entry or open 

access longline and pot or trap, open 

access hook-and-line, pot or trap, 

gillnet, set net, trammel net and spear) 

fishing for groundfish. Fishing with 

non-trawl gear is prohibited within the 

non-trawl gear RCA. It is unlawful to 

take and retain, possess, or land 

groundfish taken with non-trawl gear in 

the non-trawl gear RCA. Limited entry 

fixed gear and open access non-trawl 

gear vessels may transit through the 

non-trawl gear RCA, with or without 

groundfish on board. These restrictions 

do not apply to vessels fishing for 

species other than groundfish with nontrawl gear. If a vessel fishes in an RCA, 

it may not participate in any fishing on 

that trip that is inconsistent with the 

restrictions that apply within the RCA. 

For example, if a vessel participates in 

the salmon troll fishery within the RCA, 

the vessel cannot on the same trip 

participate in the sablefish fishery 

outside of the RCA.

(ii) Between the U.S. border with 

Canada and 46°16′ N. lat., the non-trawl 

gear RCA extends to the shoreline. 

Between 46°16′ N. lat. and 40°10′ N. lat., 

the non-trawl gear RCA is defined along 

an eastern, inshore boundary 

approximating 27 fm (49 m) throughout 

the year. Between 40°10′ N. lat. and the 

U.S. border with Mexico, the non-trawl 

gear RCA is defined along an eastern, 

inshore boundary approximating 20 fm

966 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

(37 m) throughout the year, except as 

provided for between Point Fermin 

(33°41′ N. lat.; 118°18′ W. long.) and the 

Newport South Jetty (33°36′ N .lat.; 117°

51′ W. long.) Between a line drawn due 

south from Point Fermin (33°41′ N. lat.; 

118°18′ W. long.) and a line drawn due 

west from the Newport South Jetty 

(33°36′ N .lat.; 117° 51′ W. long.,) 

vessels fishing with hook-and-line and/

or trap (or pot) gear may operate from 

shore to a boundary line approximating 

50 fm (91 m) in the months of July and 

August. Boundary coordinates are 

provided below at paragraph (e) of this 

section.

(iii) Between the U.S. border with 

Canada and 40°10′ N. lat., the non-trawl 

gear RCA is defined along a western, 

offshore boundary approximating 100 

fm (183 m) throughout the year. 

Between 40°10′ N. lat. and the U.S. 

border with Mexico, the trawl RCA is 

defined along a western, offshore 

boundary approximating 150 fm (274 m) 

throughout the year. Boundary 

coordinates are provided below at 

paragraph (e) of this section.

(e) RCA Boundary Coordinates. 

Coordinates for the specific boundaries 

that approximate the depth contours 

selected for both trawl and non-trawl 

gear RCAs are provided here.

(i) The 27–fm (49–m) depth contour 

used between 46°16′ N. lat. and 40°10′

N. lat. as an eastern boundary for the 

non-trawl RCA is defined by straight 

lines connecting all of the following 

points in the order stated:

(1) 46°16.00′ N. lat., 124°12.39′ W. 

long.;

(2) 46°14.85′ N. lat., 124°12.39′ W. 

long.;

(3) 46°3.95′ N. lat., 124°3.64′ W. long.;

(4) 45°43.14′ N. lat., 124°0.17′ W. 

long.;

(5) 45°23.33′ N. lat., 124°1.99′ W. 

long.;

(6) 45°9.54′ N. lat., 124°1.65′ W. long.;

(7) 44°39.99′ N. lat., 124°8.67′ W. 

long.;

(8) 44°20.86′ N. lat., 124°10.31′ W. 

long.;

(9) 43°37.11′ N. lat., 124°14.91′ W. 

long.;

(10) 43°27.54′ N. lat., 124°18.98′ W. 

long.;

(11) 43°20.68′ N. lat., 124°25.53′ W. 

long.;

(12) 43°15.08′ N. lat., 124°27.17′ W. 

long.;

(13) 43°6.89′ N. lat., 124°29.65′ W. 

long.;

(14) 43°1.02′ N. lat., 124°29.70′ W. 

long.;

(15) 42°52.67′ N. lat., 124°36.10′ W. 

long.;

(16) 42°45.96′ N. lat., 124°37.95′ W. 

long.;

(17) 42°45.80′ N. lat., 124°35.41′ W. 

long.;

(18) 42°38.46′ N. lat., 124°27.49′ W. 

long.;

(19) 42°35.29′ N. lat., 124°26.85′ W. 

long.;

(20) 42°31.49′ N. lat., 124°31.40′ W. 

long.;

(21) 42°29.06′ N. lat., 124°32.24′ W. 

long.;

(22) 42°14.26′ N. lat., 124°26.27′ W. 

long.;

(23) 42°4.86′ N. lat., 124°21.94′ W. 

long.;

(24) 42°0.10′ N. lat., 124°20.99′ W. 

long.;

(25) 42°0.00′ N. lat., 124°21.03′ W. 

long.;

(26) 41°56.33′ N. lat., 124°20.34′ W. 

long.;

(27) 41°50.93′ N. lat., 124°23.74′ W. 

long.;

(28) 41°41.83′ N. lat., 124°16.99′ W. 

long.;

(29) 41°35.48′ N. lat., 124°16.35′ W. 

long.;

(30) 41°23.51′ N. lat., 124°10.48′ W. 

long.;

(31) 41°4.62′ N. lat., 124°14.44′ W. 

long.;

(32) 40°54.28′ N. lat., 124°13.90′ W. 

long.;

(33) 40°40.37′ N. lat., 124°26.21′ W. 

long.;

(34) 40°34.03′ N. lat., 124°27.36′ W. 

long.;

(35) 40°28.88′ N. lat., 124°32.41′ W. 

long.;

(36) 40°24.82′ N. lat., 124°29.56′ W. 

long.;

(37) 40°22.64′ N. lat., 124°24.05′ W. 

long.;

(38) 40°18.67′ N. lat., 124°21.90′ W. 

long.;

(39) 40°14.23′ N. lat., 124°23.72′ W. 

long.; and

(40) 40°10.00′ N. lat., 124°17.22′ W. 

long.;

(ii) The 75–fm (137–m) depth contour 

used north of 40°10′ N. lat. as an eastern 

boundary for the trawl RCA in the 

months of July and August is defined by 

straight lines connecting all of the 

following points in the order stated:

(1) 48°14.58′ N. lat., 125°42.47′ W. 

long.;

(2) 48°20.26′ N. lat., 125°23.03′ W. 

long.;

(3) 48°23.00′ N. lat., 124°50.00′ W. 

long.;

(4) 48°17.10′ N. lat., 124°54.82′ W. 

long.;

(5) 48°05.10′ N. lat., 124°59.40′ W. 

long.;

(6) 48°04.98′ N. lat., 125°10.02′ W. 

long.;

(7) 47°54.00′ N. lat., 125°04.98′ W. 

long.;

(8) 47°44.52′ N. lat., 125°00.00′ W. 

long.;

(9) 47°42.00′ N. lat., 124°58.98′ W. 

long.;

(10) 47°35.52′ N. lat., 124°55.50′ W. 

long.;

(11) 47°22.02′ N. lat., 124°44.40′ W. 

long.;

(12) 47°16.98′ N. lat., 124°45.48′ W. 

long.;

(13) 47°10.98′ N. lat., 124°48.48′ W. 

long.;

(14) 47°04.98′ N. lat., 124°49.02′ W. 

long.;

(15) 46°57.98′ N. lat., 124°46.50′ W. 

long.;

(16) 46°54.00′ N. lat., 124°45.00′ W. 

long.;

(17) 46°48.48′ N. lat., 124°44.52′ W. 

long.;

(18) 46°40.02′ N. lat., 124°36.00′ W. 

long.;

(19) 46°34.09′ N. lat., 124°27.03′ W. 

long.;

(20) 46°24.64′ N. lat., 124°30.33′ W. 

long.;

(21) 46°19.98′ N. lat., 124°36.00′ W. 

long.;

(22) 46°18.14′ N. lat., 124°34.26′ W. 

long.;

(23) 46°18.72′ N. lat., 124°22.68′ W. 

long.;

(24) 46°14.64′ N. lat., 124°22.54′ W. 

long.;

(25) 46°11.08′ N. lat., 124°30.74′ W. 

long.;

(26) 46°4.28′ N. lat., 124°31.49′ W. 

long.;

(27) 45°55.97′ N. lat., 124°19.95′ W. 

long.;

(28) 45°44.97′ N. lat., 124°15.96′ W. 

long.;

(29) 45°43.14′ N. lat., 124°21.86′ W. 

long.;

(30) 45°34.44′ N. lat., 124°14.44′ W. 

long.;

(31) 45°15.49′ N. lat., 124°11.49′ W. 

long.;

(32) 44°57.31′ N. lat., 124°15.03′ W. 

long.;

(33) 44°43.90′ N. lat., 124°28.88′ W. 

long.;

(34) 44°28.64′ N. lat., 124°35.67′ W. 

long.;

(35) 44°25.31′ N. lat., 124°43.08′ W. 

long.;

(36) 44°17.15′ N. lat., 124°47.98′ W. 

long.;

(37) 44°13.67′ N. lat., 124°54.41′ W. 

long.;

(38) 43°56.85′ N. lat., 124°55.32′ W. 

long.;

(39) 43°57.50′ N. lat., 124°41.23′ W. 

long.;

(40) 44°1.79′ N. lat., 124°38.00′ W. 

long.;

(41) 44°2.16′ N. lat., 124°32.62′ W. 

long.;

(42) 43°58.15′ N. lat., 124°30.39′ W. 

long.;

(43) 43°53.25′ N. lat., 124°31.39′ W. 

long.;

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 967

(44) 43°35.56′ N. lat., 124°28.17′ W. 

long.;

(45) 43°21.84′ N. lat., 124°36.07′ W. 

long.;

(46) 43°19.73′ N. lat., 124°34.86′ W. 

long.;

(47) 43°9.38′ N. lat., 124°39.30′ W. 

long.;

(48) 43°7.11′ N. lat., 124°37.66′ W. 

long.;

(49) 42°56.27′ N. lat., 124°43.29′ W. 

long.;

(50) 42°45.00′ N. lat., 124°41.50′ W. 

long.;

(51) 42°39.72′ N. lat., 124°39.11′ W. 

long.;

(52) 42°32.88′ N. lat., 124°40.13′ W. 

long.;

(53) 42°32.30′ N. lat., 124°39.04′ W. 

long.;

(54) 42°26.96′ N. lat., 124°44.31′ W. 

long.;

(55) 42°24.11′ N. lat., 124°42.16′ W. 

long.;

(56) 42°21.10′ N. lat., 124°35.46′ W. 

long.;

(57) 42°14.72′ N. lat., 124°32.30′ W. 

long.;

(58) 42°9.24′ N. lat., 124°32.04′ W. 

long.;

(59) 42°1.89′ N. lat., 124°32.70′ W. 

long.;

(60) 42°0.03′ N. lat., 124°32.02′ W. 

long.;

(61) 42°0.00′ N. lat., 124°32.02′ W. 

long.;

(62) 41°46.18′ N. lat., 124°26.60′ W. 

long.;

(63) 41°29.22′ N. lat., 124°28.04′ W. 

long.;

(64) 41°9.62′ N. lat., 124°19.75′ W. 

long.;

(65) 40°50.71′ N. lat., 124°23.80′ W. 

long.;

(66) 40°43.35′ N. lat., 124°29.30′ W. 

long.;

(67) 40°40.24′ N. lat., 124°29.86′ W. 

long.;

(68) 40°37.50′ N. lat., 124°28.68′ W. 

long.;

(69) 40°34.42′ N. lat., 124°29.65′ W. 

long.;

(70) 40°34.74′ N. lat., 124°34.61′ W. 

long.;

(71) 40°31.70′ N. lat., 124°37.13′ W. 

long.;

(72) 40°25.03′ N. lat., 124°34.77′ W. 

long.;

(73) 40°23.58′ N. lat., 124°31.49′ W. 

long.;

(74) 40°23.64′ N. lat., 124°28.35′ W. 

long.;

(75) 40°22.53′ N. lat., 124°24.76′ W. 

long.;

(76) 40°21.46′ N. lat., 124°24.86′ W. 

long.;

(77) 40°21.74′ N. lat., 124°27.63′ W. 

long.;

(78) 40°19.76′ N. lat., 124°28.15′ W. 

long.;

(79) 40°18.00′ N. lat., 124°25.38′ W. 

long.;

(80) 40°18.54′ N. lat., 124°22.94′ W. 

long.;

(81) 40°15.55′ N. lat., 124°25.75′ W. 

long.;

(82) 40°16.06′ N. lat., 124°30.48′ W. 

long.;

(83) 40°15.75′ N. lat., 124°31.69′ W. 

long.; and

(84) 40°10.00′ N. lat., 124°21.28′ W. 

long.

(iii) The 100–fm (183–m) depth 

contour used north of 40°10′ N. lat. as 

an eastern boundary for the trawl RCA 

and as a western boundary for the nontrawl RCA is defined by straight lines 

connecting all of the following points in 

the order stated:

(1) 48°15.00′ N. lat., 125°41.00′ W. 

long.;

(2) 48°14.00′ N. lat., 125°36.00′ W. 

long.;

(3) 48°09.50′ N. lat., 125°40.50′ W. 

long.;

(4) 48°08.00′ N. lat., 125°38.00′ W. 

long.;

(5) 48°05.00′ N. lat., 125°37.25′ W. 

long.;

(6) 48°02.60′ N. lat., 125°34.70′ W. 

long.;

(7) 47°59.00′ N. lat., 125°34.00′ W. 

long.;

(8) 47°57.26′ N. lat., 125°29.82′ W. 

long.;

(9) 47°59.87′ N. lat., 125°25.81′ W. 

long.;

(10) 48°01.08′ N. lat., 125°24.53′ W. 

long.;

(11) 48°02.08′ N. lat., 125°22.98′ W. 

long.;

(12) 48°02.97′ N. lat., 125°22.89′ W. 

long.;

(13) 48°04.47′ N. lat., 125°21.75′ W. 

long.;

(14) 48°06.11′ N. lat., 125°19.33′ W. 

long.;

(15) 48°07.95′ N. lat., 125°18.55′ W. 

long.;

(16) 48°09.00′ N. lat., 125°18.00′ W. 

long.;

(17) 48°11.31′ N. lat., 125°17.55′ W. 

long.;

(18) 48°14.60′ N. lat., 125°13.46′ W. 

long.;

(19) 48°16.67′ N. lat., 125°14.34′ W. 

long.;

(20) 48°18.73′ N. lat., 125°14.41′ W. 

long.;

(21) 48°19.98′ N. lat., 125°13.24′ W. 

long.;

(22) 48°22.95′ N. lat., 125°10.79′ W. 

long.;

(23) 48°21.61′ N. lat., 125°02.54′ W. 

long.;

(24) 48°23.00′ N. lat., 124°49.34′ W. 

long.;

(25) 48°17.00′ N. lat., 124°56.50′ W. 

long.;

(26) 48°06.00′ N. lat., 125°00.00′ W. 

long.;

(27) 48°04.62′ N. lat., 125°01.73′ W. 

long.;

(28) 48°04.84′ N. lat., 125°04.03′ W. 

long.;

(29) 48°06.41′ N. lat., 125°06.51′ W. 

long.;

(30) 48°06.00′ N. lat., 125°08.00′ W. 

long.;

(31) 48°07.28′ N. lat., 125°11.14′ W. 

long.;

(32) 48°03.45′ N. lat., 125°16.66′ W. 

long.;

(33) 47°59.50′ N. lat., 125°18.88′ W. 

long.;

(34) 47°58.68′ N. lat., 125°16.19′ W. 

long.;

(35) 47°56.62′ N. lat., 125°13.50′ W. 

long.;

(36) 47°53.71′ N. lat., 125°11.96′ W. 

long.;

(37) 47°51.70′ N. lat., 125°09.38′ W. 

long.;

(38) 47°49.95′ N. lat., 125°06.07′ W. 

long.;

(39) 47°49.00′ N. lat., 125°03.00′ W. 

long.;

(40) 47°46.95′ N. lat., 125°04.00′ W. 

long.;

(41) 47°46.58′ N. lat., 125°03.15′ W. 

long.;

(42) 47°44.07′ N. lat., 125°04.28′ W. 

long.;

(43) 47°43.32′ N. lat., 125°04.41′ W. 

long.;

(44) 47°40.95′ N. lat., 125°04.14′ W. 

long.;

(45) 47°39.58′ N. lat., 125°04.97′ W. 

long.;

(46) 47°36.23′ N. lat., 125°02.77′ W. 

long.;

(47) 47°34.28′ N. lat., 124°58.66′ W. 

long.;

(48) 47°32.17′ N. lat., 124°57.77′ W. 

long.;

(49) 47°30.27′ N. lat., 124°56.16′ W. 

long.;

(50) 47°30.60′ N. lat., 124°54.80′ W. 

long.;

(51) 47°29.26′ N. lat., 124°52.21′ W. 

long.;

(52) 47°28.21′ N. lat., 124°50.65′ W. 

long.;

(53) 47°27.38′ N. lat., 124°49.34′ W. 

long.;

(54) 47°25.61′ N. lat., 124°48.26′ W. 

long.;

(55) 47°23.54′ N. lat., 124°46.42′ W. 

long.;

(56) 47°20.64′ N. lat., 124°45.91′ W. 

long.;

(57) 47°17.99′ N. lat., 124°45.59′ W. 

long.;

(58) 47°18.20′ N. lat., 124°49.12′ W. 

long.;

(59) 47°15.01′ N. lat., 124°51.09′ W. 

long.;

(60) 47°12.61′ N. lat., 124°54.89′ W. 

long.;

968 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

(61) 47°08.22′ N. lat., 124°56.53′ W. 

long.;

(62) 47°08.50′ N. lat., 124°54.95′ W. 

long.;

(63) 47°01.92′ N. lat., 124°57.74′ W. 

long.;

(64) 47°01.14′ N. lat., 124°59.35′ W. 

long.;

(65) 46°58.48′ N. lat., 124°57.81′ W. 

long.;

(66) 46°56.79′ N. lat., 124°56.03′ W. 

long.;

(67) 46°58.01′ N. lat., 124°55.09′ W. 

long.;

(68) 46°55.07′ N. lat., 124°54.14′ W. 

long.;

(69) 46°59.60′ N. lat., 124°49.79′ W. 

long.;

(70) 46°58.72′ N. lat., 124°48.78′ W. 

long.;

(71) 46°54.45′ N. lat., 124°48.36′ W. 

long.;

(72) 46°53.99′ N. lat., 124°49.95′ W. 

long.;

(73) 46°54.38′ N. lat., 124°52.73′ W. 

long.;

(74) 46°52.38′ N. lat., 124°52.02′ W. 

long.;

(75) 46°48.93′ N. lat., 124°49.17′ W. 

long.;

(76) 46°41.50′ N. lat., 124°43.00′ W. 

long.;

(77) 46°34.50′ N. lat., 124°28.50′ W. 

long.;

(78) 46°29.00′ N. lat., 124°30.00′ W. 

long.;

(79) 46°20.00′ N. lat., 124°36.50′ W. 

long.;

(80) 46°18.00′ N. lat., 124°38.00′ W. 

long.;

(81) 46°17.00′ N. lat., 124°35.50′ W. 

long.;

(82) 46°17.00′ N. lat., 124°22.50′ W. 

long.;

(83) 46°15.02′ N. lat., 124°23.77′ W. 

long.;

(84) 46°12.00′ N. lat., 124°35.00′ W. 

long.;

(85) 46°10.50′ N. lat., 124°39.00′ W. 

long.;

(86) 46°8.90′ N. lat., 124°39.11′ W. 

long.;

(87) 46°0.97′ N. lat., 124°38.56′ W. 

long.;

(88) 45°57.04′ N. lat., 124°36.42′ W. 

long.;

(89) 45°54.29′ N. lat., 124°40.02′ W. 

long.;

(90) 45°47.19′ N. lat., 124°35.58′ W. 

long.;

(91) 45°41.75′ N. lat., 124°28.32′ W. 

long.;

(92) 45°34.16′ N. lat., 124°24.23′ W. 

long.;

(93) 45°27.10′ N. lat., 124°21.74′ W. 

long.;

(94) 45°17.14′ N. lat., 124°17.85′ W. 

long.;

(95) 44°59.51′ N. lat., 124°19.34′ W. 

long.;

(96) 44°49.30′ N. lat., 124°29.97′ W. 

long.;

(97) 44°45.64′ N. lat., 124°33.89′ W. 

long.;

(98) 44°33.00′ N. lat., 124°36.88′ W. 

long.;

(99) 44°28.20′ N. lat., 124°44.72′ W. 

long.;

(100) 44°13.16′ N. lat., 124°56.36′ W. 

long.;

(101) 43°56.34′ N. lat., 124°55.74′ W. 

long.;

(102) 43°56.47′ N. lat., 124°34.61′ W. 

long.;

(103) 43°42.73′ N. lat., 124°32.41′ W. 

long.;

(104) 43°30.92′ N. lat., 124°34.43′ W. 

long.;

(105) 43°17.44′ N. lat., 124°41.16′ W. 

long.;

(106) 43°7.04′ N. lat., 124°41.25′ W. 

long.;

(107) 43°3.45′ N. lat., 124°44.36′ W. 

long.;

(108) 43°3.90′ N. lat., 124°50.81′ W. 

long.;

(109) 42°55.70′ N. lat., 124°52.79′ W. 

long.;

(110) 42°54.12′ N. lat., 124°47.36′ W. 

long.;

(111) 42°43.99′ N. lat., 124°42.38′ W. 

long.;

(112) 42°38.23′ N. lat., 124°41.25′ W. 

long.;

(113) 42°33.02′ N. lat., 124°42.38′ W. 

long.;

(114) 42°31.89′ N. lat., 124°42.04′ W. 

long.;

(115) 42°30.08′ N. lat., 124°42.67′ W. 

long.;

(116) 42°28.27′ N. lat., 124°47.08′ W. 

long.;

(117) 42°25.22′ N. lat., 124°43.51′ W. 

long.;

(118) 42°19.22′ N. lat., 124°37.92′ W. 

long.;

(119) 42°16.28′ N. lat., 124°36.11′ W. 

long.;

(120) 42°5.65′ N. lat., 124°34.92′ W. 

long.;

(121) 42°0.00′ N. lat., 124°35.27′ W. 

long.;

(122) 42°00.00′ N. lat., 124°35.26′ W. 

long.;

(123) 41°47.04′ N. lat., 124°27.64′ W. 

long.;

(124) 41°32.92′ N. lat., 124°28.79′ W. 

long.;

(125) 41°24.17′ N. lat., 124°28.46′ W. 

long.;

(126) 41°10.12′ N. lat., 124°20.50′ W. 

long.;

(127) 40°51.41′ N. lat., 124°24.38′ W. 

long.;

(128) 40°43.71′ N. lat., 124°29.89′ W. 

long.;

(129) 40°40.14′ N. lat., 124°30.90′ W. 

long.;

(130) 40°37.35′ N. lat., 124°29.05′ W. 

long.;

(131) 40°34.76′ N. lat., 124°29.82′ W. 

long.;

(132) 40°36.78′ N. lat., 124°37.06′ W. 

long.;

(133) 40°32.44′ N. lat., 124°39.58′ W. 

long.;

(134) 40°24.82′ N. lat., 124°35.12′ W. 

long.;

(135) 40°23.30′ N. lat., 124°31.60′ W. 

long.;

(136) 40°23.52′ N. lat., 124°28.78′ W. 

long.;

(137) 40°22.43′ N. lat., 124°25.00′ W. 

long.;

(138) 40°21.72′ N. lat., 124°24.94′ W. 

long.;

(139) 40°21.87′ N. lat., 124°27.96′ W. 

long.;

(140) 40°21.40′ N. lat., 124°28.74′ W. 

long.;

(141) 40°19.68′ N. lat., 124°28.49′ W. 

long.;

(142) 40°17.73′ N. lat., 124°25.43′ W. 

long.;

(143) 40°18.37′ N. lat., 124°23.35′ W. 

long.;

(144) 40°15.75′ N. lat., 124°26.05′ W. 

long.;

(145) 40°16.75′ N. lat., 124°33.71′ W. 

long.;

(146) 40°16.29′ N. lat., 124°34.36′ W. 

long.; and

(147) 40°10.00′ N. lat., 124°21.12′ W. 

long.

(iv) The 250–fm (457–m) depth 

contour used north of 38° N. lat. for 

March through October as a western 

boundary for the trawl RCA is defined 

by straight lines connecting all of the 

following points in the order stated:

(1) 48°14.68′ N. lat., 125°42.10′ W. 

long.;

(2) 48°12.83′ N. lat., 125°39.71′ W. 

long.;

(3) 48°13.00′ N. lat., 125°39.00′ W. 

long.;

(4) 48°12.73′ N. lat., 125°38.87′ W. 

long.;

(5) 48°12.43′ N. lat., 125°39.12′ W. 

long.;

(6) 48°11.83′ N. lat., 125°40.01′ W. 

long.;

(7) 48°11.78′ N. lat., 125°41.70′ W. 

long.;

(8) 48°10.62′ N. lat., 125°43.41′ W. 

long.;

(9) 48°09.23′ N. lat., 125°42.80′ W. 

long.;

(10) 48°08.79′ N. lat., 125°43.79′ W. 

long.;

(11) 48°08.50′ N. lat., 125°45.00′ W. 

long.;

(12) 48°07.43′ N. lat., 125°46.36′ W. 

long.;

(13) 48°06.00′ N. lat., 125°46.50′ W. 

long.;

(14) 48°05.38′ N. lat., 125°42.82′ W. 

long.;

(15) 48°04.19′ N. lat., 125°40.40′ W. 

long.;

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 969

(16) 48°03.50′ N. lat., 125°37.00′ W. 

long.;

(17) 48°01.50′ N. lat., 125°40.00′ W. 

long.;

(18) 47°57.00′ N. lat., 125°37.00′ W. 

long.;

(19) 47°55.21′ N. lat., 125°37.22′ W. 

long.;

(20) 47°54.02′ N. lat., 125°36.57′ W. 

long.;

(21) 47°53.67′ N. lat., 125°35.06′ W. 

long.;

(22) 47°54.14′ N. lat., 125°32.35′ W. 

long.;

(23) 47°55.50′ N. lat., 125°28.56′ W. 

long.;

(24) 47°57.03′ N. lat., 125°26.52′ W. 

long.;

(25) 47°57.98′ N. lat., 125°25.08′ W. 

long.;

(26) 48°00.54′ N. lat., 125°24.38′ W. 

long.;

(27) 48°01.45′ N. lat., 125°23.70′ W. 

long.;

(28) 48°01.97′ N. lat., 125°22.34′ W. 

long.;

(29) 48°03.68′ N. lat., 125°21.20′ W. 

long.;

(30) 48°01.96′ N. lat., 125°19.56′ W. 

long.;

(31) 48°00.98′ N. lat., 125°20.43′ W. 

long.;

(32) 48°00.00′ N. lat., 125°20.68′ W. 

long.;

(33) 47°58.00′ N. lat., 125°20.00′ W. 

long.;

(34) 47°57.65′ N. lat., 125°19.18′ W. 

long.;

(35) 47°58.00′ N. lat., 125°18.00′ W. 

long.;

(36) 47°56.59′ N. lat., 125°18.15′ W. 

long.;

(37) 47°51.30′ N. lat., 125°18.32′ W. 

long.;

(38) 47°49.88′ N. lat., 125°14.49′ W. 

long.;

(39) 47°49.00′ N. lat., 125°11.00′ W. 

long.;

(40) 47°47.99′ N. lat., 125°07.31′ W. 

long.;

(41) 47°46.47′ N. lat., 125°08.63′ W. 

long.;

(42) 47°46.00′ N. lat., 125°06.00′ W. 

long.;

(43) 47°44.50′ N. lat., 125°07.50′ W. 

long.;

(44) 47°43.39′ N. lat., 125°06.57′ W. 

long.;

(45) 47°42.37′ N. lat., 125°05.74′ W. 

long.;

(46) 47°40.61′ N. lat., 125°06.48′ W. 

long.;

(47) 47°37.43′ N. lat., 125°07.33′ W. 

long.;

(48) 47°33.68′ N. lat., 125°04.80′ W. 

long.;

(49) 47°30.00′ N. lat., 125°00.00′ W. 

long.;

(50) 47°28.00′ N. lat., 124°58.50′ W. 

long.;

(51) 47°28.88′ N. lat., 124°54.71′ W. 

long.;

(52) 47°27.70′ N. lat., 124°51.87′ W. 

long.;

(53) 47°24.84′ N. lat., 124°48.45′ W. 

long.;

(54) 47°21.76′ N. lat., 124°47.42′ W. 

long.;

(55) 47°18.84′ N. lat., 124°46.75′ W. 

long.;

(56) 47°19.82′ N. lat., 124°51.43′ W. 

long.;

(57) 47°18.13′ N. lat., 124°54.25′ W. 

long.;

(58) 47°13.50′ N. lat., 124°54.69′ W. 

long.;

(59) 47°15.00′ N. lat., 125°00.00′ W. 

long.;

(60) 47°08.00′ N. lat., 124°59.83′ W. 

long.;

(61) 47°05.79′ N. lat., 125°01.00′ W. 

long.;

(62) 47°03.34′ N. lat., 124°57.49′ W. 

long.;

(63) 47°01.00′ N. lat., 125°00.00′ W. 

long.;

(64) 46°55.00′ N. lat., 125°02.00′ W. 

long.;

(65) 46°51.00′ N. lat., 124°57.00′ W. 

long.;

(66) 46°47.00′ N. lat., 124°55.00′ W. 

long.;

(67) 46°34.00′ N. lat., 124°38.00′ W. 

long.;

(68) 46°30.50′ N. lat., 124°41.00′ W. 

long.;

(69) 46°33.00′ N. lat., 124°32.00′ W. 

long.;

(70) 46°29.00′ N. lat., 124°32.00′ W. 

long.;

(71) 46°20.00′ N. lat., 124°39.00′ W. 

long.;

(72) 46°18.16′ N. lat., 124°40.00′ W. 

long.;

(73) 46°15.83′ N. lat., 124°27.01′ W. 

long.;

(74) 46°15.00′ N. lat., 124°30.96′ W. 

long.;

(75) 46°13.17′ N. lat., 124°37.87′ W. 

long.;

(76) 46°13.17′ N. lat., 124°38.75′ W. 

long.;

(77) 46°10.50′ N. lat., 124°42.00′ W. 

long.;

(78) 46°6.21′ N. lat., 124°41.85′ W. 

long.;

(79) 46°3.02′ N. lat., 124°50.27′ W. 

long.;

(80) 45°57.00′ N. lat., 124°45.52′ W. 

long.;

(81) 45°46.85′ N. lat., 124°45.91′ W. 

long.;

(82) 45°45.81′ N. lat., 124°47.05′ W. 

long.;

(83) 45°44.87′ N. lat., 124°45.98′ W. 

long.;

(84) 45°43.44′ N. lat., 124°46.03′ W. 

long.;

(85) 45°35.82′ N. lat., 124°45.72′ W. 

long.;

(86) 45°35.70′ N. lat., 124°42.89′ W. 

long.;

(87) 45°24.45′ N. lat., 124°38.21′ W. 

long.;

(88) 45°11.68′ N. lat., 124°39.38′ W. 

long.;

(89) 44°57.94′ N. lat., 124°37.02′ W. 

long.;

(90) 44°44.28′ N. lat., 124°50.79′ W. 

long.;

(91) 44°32.63′ N. lat., 124°54.21′ W. 

long.;

(92) 44°23.20′ N. lat., 124°49.87′ W. 

long.;

(93) 44°13.17′ N. lat., 124°58.81′ W. 

long.;

(94) 43°57.92′ N. lat., 124°58.29′ W. 

long.;

(95) 43°50.12′ N. lat., 124°53.36′ W. 

long.;

(96) 43°49.53′ N. lat., 124°43.96′ W. 

long.;

(97) 43°42.76′ N. lat., 124°41.40′ W. 

long.;

(98) 43°24.00′ N. lat., 124°42.61′ W. 

long.;

(99) 43°19.74′ N. lat., 124°45.12′ W. 

long.;

(100) 43°19.62′ N. lat., 124°52.95′ W. 

long.;

(101) 43°17.41′ N. lat., 124°53.02′ W. 

long.;

(102) 42°49.15′ N. lat., 124°54.93′ W. 

long.;

(103) 42°46.74′ N. lat., 124°53.39′ W. 

long.;

(104) 42°43.76′ N. lat., 124°51.64′ W. 

long.;

(105) 42°45.41′ N. lat., 124°49.35′ W. 

long.;

(106) 42°43.92′ N. lat., 124°45.92′ W. 

long.;

(107) 42°38.87′ N. lat., 124°43.38′ W. 

long.;

(108) 42°34.78′ N. lat., 124°46.56′ W. 

long.;

(109) 42°31.47′ N. lat., 124°46.89′ W. 

long.;

(110) 42°31.00′ N. lat., 124°44.28′ W. 

long.;

(111) 42°29.22′ N. lat., 124°46.93′ W. 

long.;

(112) 42°28.39′ N. lat., 124°49.94′ W. 

long.;

(113) 42°26.28′ N. lat., 124°47.60′ W. 

long.;

(114) 42°19.58′ N. lat., 124°43.21′ W. 

long.;

(115) 42°13.75′ N. lat., 124°40.06′ W. 

long.;

(116) 42°5.12′ N. lat., 124°39.06′ W. 

long.;

(117) 41°59.99′ N. lat., 124°37.72′ W. 

long.;

(118) 42°0.00′ N. lat., 124°37.76′ W. 

long.;

(119) 41°47.93′ N. lat., 124°31.79′ W. 

long.;

(120) 41°21.35′ N. lat., 124°30.35′ W. 

long.;

970 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

(121) 41°7.11′ N. lat., 124°25.25′ W. 

long.;

(122) 40°57.37′ N. lat., 124°30.25′ W. 

long.;

(123) 40°41.03′ N. lat., 124°33.21′ W. 

long.;

(124) 40°37.40′ N. lat., 124°38.96′ W. 

long.;

(125) 40°33.70′ N. lat., 124°42.50′ W. 

long.;

(126) 40°31.31′ N. lat., 124°41.59′ W. 

long.;

(127) 40°25.00′ N. lat., 124°36.65′ W. 

long.;

(128) 40°22.42′ N. lat., 124°32.19′ W. 

long.;

(129) 40°17.17′ N. lat., 124°32.21′ W. 

long.;

(130) 40°18.68′ N. lat., 124°50.44′ W. 

long.;

(131) 40°10.11′ N. lat., 124°28.25′ W. 

long.;

(132) 40°1.63′ N. lat., 124°17.25′ W. 

long.;

(133) 39°51.85′ N. lat., 124°10.33′ W. 

long.;

(134) 39°32.41′ N. lat., 124°0.01′ W. 

long.;

(135) 38°57.16′ N. lat., 124°1.89′ W. 

long.;

(136) 38°11.66′ N. lat., 123°30.87′ W. 

long.;

(137) 38°3.18′ N. lat., 123°33.45′ W. 

long.; and

(138) 38°00.00′ N. lat., 123°28.84′ W. 

long.

(v) The 250–fm (457–m) depth 

contour modified to allow fishing for 

petrale in winter months of January, 

February, November, and December and 

used north of 38° N. lat. as a western 

boundary for the trawl RCA is defined 

by straight lines connecting all of the 

following points in the order stated:

(1) 48°14.71′ N. lat., 125°41.95′ W. 

long.;

(2) 48°13.00′ N. lat., 125°39.00′ W. 

long.;

(3) 48°08.50′ N. lat., 125°45.00′ W. 

long.;

(4) 48°06.00′ N. lat., 125°46.50′ W. 

long.;

(5) 48°03.50′ N. lat., 125°37.00′ W. 

long.;

(6) 48°01.50′ N. lat., 125°40.00′ W. 

long.;

(7) 47°57.00′ N. lat., 125°37.00′ W. 

long.;

(8) 47°55.50′ N. lat., 125°28.50′ W. 

long.;

(9) 47°58.00′ N. lat., 125°25.00′ W. 

long.;

(10) 48°00.50′ N. lat., 125°24.50′ W. 

long.;

(11) 48°03.50′ N. lat., 125°21.00′ W. 

long.;

(12) 48°02.00′ N. lat., 125°19.50′ W. 

long.;

(13) 48°00.00′ N. lat., 125°21.00′ W. 

long.;

(14) 47°58.00′ N. lat., 125°20.00′ W. 

long.;

(15) 47°58.00′ N. lat., 125°18.00′ W. 

long.;

(16) 47°52.00′ N. lat., 125°16.50′ W. 

long.;

(17) 47°49.00′ N. lat., 125°11.00′ W. 

long.;

(18) 47°46.00′ N. lat., 125°06.00′ W. 

long.;

(19) 47°44.50′ N. lat., 125°07.50′ W. 

long.;

(20) 47°42.00′ N. lat., 125°06.00′ W. 

long.;

(21) 47°38.00′ N. lat., 125°07.00′ W. 

long.;

(22) 47°30.00′ N. lat., 125°00.00′ W. 

long.;

(23) 47°28.00′ N. lat., 124°58.50′ W. 

long.;

(24) 47°28.88′ N. lat., 124°54.71′ W. 

long.;

(25) 47°27.70′ N. lat., 124°51.87′ W. 

long.;

(26) 47°24.84′ N. lat., 124°48.45′ W. 

long.;

(27) 47°21.76′ N. lat., 124°47.42′ W. 

long.;

(28) 47°18.84′ N. lat., 124°46.75′ W. 

long.;

(29) 47°19.82′ N. lat., 124°51.43′ W. 

long.;

(30) 47°18.13′ N. lat., 124°54.25′ W. 

long.;

(31) 47°13.50′ N. lat., 124°54.69′ W. 

long.;

(32) 47°15.00′ N. lat., 125°00.00′ W. 

long.;

(33) 47°08.00′ N. lat., 124°59.82′ W. 

long.;

(34) 47°05.79′ N. lat., 125°01.00′ W. 

long.;

(35) 47°03.34′ N. lat., 124°57.49′ W. 

long.;

(36) 47°01.00′ N. lat., 125°00.00′ W. 

long.;

(37) 46°55.00′ N. lat., 125°02.00′ W. 

long.;

(38) 46°51.00′ N. lat., 124°57.00′ W. 

long.;

(39) 46°47.00′ N. lat., 124°55.00′ W. 

long.;

(40) 46°34.00′ N. lat., 124°38.00′ W. 

long.;

(41) 46°30.50′ N. lat., 124°41.00′ W. 

long.;

(42) 46°33.00′ N. lat., 124°32.00′ W. 

long.;

(43) 46°29.00′ N. lat., 124°32.00′ W. 

long.;

(44) 46°20.00′ N. lat., 124°39.00′ W. 

long.;

(45) 46°18.16′ N. lat., 124°40.00′ W. 

long.;

(46) 46°15.83′ N. lat., 124°27.01′ W. 

long.;

(47) 46°15.00′ N. lat., 124°30.96′ W. 

long.;

(48) 46°13.17′ N. lat., 124°38.76′ W. 

long.;

(49) 46°10.51′ N. lat., 124°41.99′ W. 

long.;

(50) 46°6.24′ N. lat., 124°41.81′ W. 

long.;

(51) 46°3.04′ N. lat., 124°50.26′ W. 

long.;

(52) 45°56.99′ N. lat., 124°45.45′ W. 

long.;

(53) 45°49.94′ N. lat., 124°45.75′ W. 

long.;

(54) 45°49.94′ N. lat., 124°42.33′ W. 

long.;

(55) 45°45.73′ N. lat., 124°42.18′ W. 

long.;

(56) 45°45.73′ N. lat., 124°43.82′ W. 

long.;

(57) 45°41.94′ N. lat., 124°43.61′ W. 

long.;

(58) 45°41.58′ N. lat., 124°39.86′ W. 

long.;

(59) 45°38.45′ N. lat., 124°39.94′ W. 

long.;

(60) 45°35.75′ N. lat., 124°42.91′ W. 

long.;

(61) 45°24.49′ N. lat., 124°38.20′ W. 

long.;

(62) 45°14.43′ N. lat., 124°39.05′ W. 

long.;

(63) 45°14.30′ N. lat., 124°34.19′ W. 

long.;

(64) 45°8.98′ N. lat., 124°34.26′ W. 

long.;

(65) 45°9.02′ N. lat., 124°38.81′ W. 

long.;

(66) 44°57.98′ N. lat., 124°36.98′ W. 

long.;

(67) 44°56.62′ N. lat., 124°38.32′ W. 

long.;

(68) 44°50.82′ N. lat., 124°35.52′ W. 

long.;

(69) 44°46.89′ N. lat., 124°38.32′ W. 

long.;

(70) 44°50.78′ N. lat., 124°44.24′ W. 

long.;

(71) 44°44.27′ N. lat., 124°50.78′ W. 

long.;

(72) 44°32.63′ N. lat., 124°54.24′ W. 

long.;

(73) 44°23.25′ N. lat., 124°49.78′ W. 

long.;

(74) 44°13.16′ N. lat., 124°58.81′ W. 

long.;

(75) 43°57.88′ N. lat., 124°58.25′ W. 

long.;

(76) 43°56.89′ N. lat., 124°57.33′ W. 

long.;

(77) 43°53.41′ N. lat., 124°51.95′ W. 

long.;

(78) 43°51.56′ N. lat., 124°47.38′ W. 

long.;

(79) 43°51.49′ N. lat., 124°37.77′ W. 

long.;

(80) 43°48.02′ N. lat., 124°43.31′ W. 

long.;

(81) 43°42.77′ N. lat., 124°41.39′ W. 

long.;

(82) 43°24.09′ N. lat., 124°42.57′ W. 

long.;

(83) 43°19.73′ N. lat., 124°45.09′ W. 

long.;

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 971

(84) 43°15.98′ N. lat., 124°47.76′ W. 

long.;

(85) 43°4.14′ N. lat., 124°52.55′ W. 

long.;

(86) 43°4.00′ N. lat., 124°53.88′ W. 

long.;

(87) 42°54.69′ N. lat., 124°54.54′ W. 

long.;

(88) 42°45.46′ N. lat., 124°49.37′ W. 

long.;

(89) 42°43.91′ N. lat., 124°45.90′ W. 

long.;

(90) 42°38.84′ N. lat., 124°43.36′ W. 

long.;

(91) 42°34.82′ N. lat., 124°46.56′ W. 

long.;

(92) 42°31.57′ N. lat., 124°46.86′ W. 

long.;

(93) 42°30.98′ N. lat., 124°44.27′ W. 

long.;

(94) 42°29.21′ N. lat., 124°46.93′ W. 

long.;

(95) 42°28.52′ N. lat., 124°49.40′ W. 

long.;

(96) 42°26.06′ N. lat., 124°46.61′ W. 

long.;

(97) 42°21.82′ N. lat., 124°43.76′ W. 

long.;

(98) 42°17.47′ N. lat., 124°38.89′ W. 

long.;

(99) 42°13.67′ N. lat., 124°37.51′ W. 

long.;

(100) 42°13.76′ N. lat., 124°40.03′ W. 

long.;

(101) 42°5.12′ N. lat., 124°39.06′ W. 

long.;

(102) 42°2.67′ N. lat., 124°38.41′ W. 

long.;

(103) 42°2.67′ N. lat., 124°35.95′ W. 

long.;

(104) 42°0.00′ N. lat., 124°35.88′ W. 

long.;

(105) 41°59.99′ N. lat., 124°35.92′ W. 

long.;

(106) 41°56.38′ N. lat., 124°34.96′ W. 

long.;

(107) 41°53.98′ N. lat., 124°32.50′ W. 

long.;

(108) 41°50.69′ N. lat., 124°30.46′ W. 

long.;

(109) 41°48.30′ N. lat., 124°29.91′ W. 

long.;

(110) 41°47.93′ N. lat., 124°31.79′ W. 

long.;

(111) 41°21.35′ N. lat., 124°30.35′ W. 

long.;

(112) 41°7.11′ N. lat., 124°25.25′ W. 

long.;

(113) 40°57.37′ N. lat., 124°30.25′ W. 

long.;

(114) 40°41.03′ N. lat., 124°33.21′ W. 

long.;

(115) 40°37.40′ N. lat., 124°38.96′ W. 

long.;

(116) 40°33.70′ N. lat., 124°42.50′ W. 

long.;

(117) 40°31.31′ N. lat., 124°41.59′ W. 

long.;

(118) 40°25.00′ N. lat., 124°36.65′ W. 

long.;

(119) 40°22.42′ N. lat., 124°32.19′ W. 

long.;

(120) 40°17.17′ N. lat., 124°32.21′ W. 

long.;

(121) 40°18.68′ N. lat., 124°50.44′ W. 

long.;

(122) 40°10.11′ N. lat., 124°28.25′ W. 

long.;

(123) 40°1.63′ N. lat., 124°17.25′ W. 

long.;

(124) 39°51.85′ N. lat., 124°10.33′ W. 

long.;

(125) 39°32.41′ N. lat., 124°0.01′ W. 

long.;

(126) 38°57.16′ N. lat., 124°1.89′ W. 

long.;

(127) 38°11.66′ N. lat., 123°30.87′ W. 

long.;

(128) 38°3.18′ N. lat., 123°33.45′ W. 

long.; and

(129) 38°00.00′ N. lat., 123°28.84′ W. 

long.

(vi) The 50–fm (91–m) depth contour 

used between 40°10′ N. lat. and 34°27′

N. lat. as an eastern boundary for the 

trawl RCA in the months of January and 

February is defined by straight lines 

connecting all of the following points in 

the order stated:

(1) 40°10.01′ N. lat., 124°19.97′ W. 

long.;

(2) 40°9.20′ N. lat., 124°15.81′ W. 

long.;

(3) 40°7.51′ N. lat., 124°15.29′ W. 

long.;

(4) 40°5.22′ N. lat., 124°10.06′ W. 

long.;

(5) 40°6.51′ N. lat., 124°8.01′ W. long.;

(6) 40°0.72′ N. lat., 124°8.45′ W. long.;

(7) 39°56.60′ N. lat., 124°7.12′ W. 

long.;

(8) 39°52.58′ N. lat., 124°3.57′ W. 

long.;

(9) 39°50.65′ N. lat., 123°57.98′ W. 

long.;

(10) 39°40.16′ N. lat., 123°52.41′ W. 

long.;

(11) 39°30.12′ N. lat., 123°52.92′ W. 

long.;

(12) 39°24.53′ N. lat., 123°55.16′ W. 

long.;

(13) 39°11.58′ N. lat., 123°50.93′ W. 

long.;

(14) 38°55.13′ N. lat., 123°51.14′ W. 

long.;

(15) 38°28.58′ N. lat., 123°22.84′ W. 

long.;

(16) 38°14.58′ N. lat., 123°9.93′ W. 

long.;

(17) 38°1.86′ N. lat., 123°9.76′ W. 

long.;

(18) 37°53.66′ N. lat., 123°12.06′ W. 

long.;

(19) 37°48.01′ N. lat., 123°15.84′ W. 

long.;

(20) 37°36.77′ N. lat., 122°58.48′ W. 

long.;

(21) 37°1.02′ N. lat., 122°33.71′ W. 

long.;

(22) 37°2.28′ N. lat., 122°25.06′ W. 

long.;

(23) 36°48.20′ N. lat., 122°3.28′ W. 

long.;

(24) 36°51.46′ N. lat., 121°57.54′ W. 

long.;

(25) 36°44.14′ N. lat., 121°58.10′ W. 

long.;

(26) 36°36.76′ N. lat., 122°1.16′ W. 

long.;

(27) 36°15.62′ N. lat., 121°57.13′ W. 

long.;

(28) 36°10.60′ N. lat., 121°43.65′ W. 

long.;

(29) 35°40.38′ N. lat., 121°22.59′ W. 

long.;

(30) 35°24.35′ N. lat., 121°2.53′ W. 

long.;

(31) 35°2.66′ N. lat., 120°51.63′ W. 

long.;

(32) 34°39.52′ N. lat., 120°48.72′ W. 

long.;

(33) 34°31.26′ N. lat., 120°44.12′ W. 

long.; and

(34) 34°27.00′ N. lat., 120°31.25′ W. 

long.

(vii) The 60–fm (110–m) depth 

contour used between 40°10′ N. lat. and 

34°27′ N. lat. as an eastern boundary for 

the trawl RCA in March through 

October is defined by straight lines 

connecting all of the following points in 

the order stated:

(1) 40°10.01′ N. lat., 124°19.97′ W. 

long.;

(2) 40°9.20′ N. lat., 124°15.81′ W. 

long.;

(3) 40°7.51′ N. lat., 124°15.29′ W. 

long.;

(4) 40°5.22′ N. lat., 124°10.06′ W. 

long.;

(5) 40°6.51′ N. lat., 124°8.01′ W. long.;

(6) 40°0.72′ N. lat., 124°8.45′ W. long.;

(7) 39°56.60′ N. lat., 124°7.12′ W. 

long.;

(8) 39°52.58′ N. lat., 124°3.57′ W. 

long.;

(9) 39°50.65′ N. lat., 123°57.98′ W. 

long.;

(10) 39°40.16′ N. lat., 123°52.41′ W. 

long.;

(11) 39°30.12′ N. lat., 123°52.92′ W. 

long.;

(12) 39°24.53′ N. lat., 123°55.16′ W. 

long.;

(13) 39°11.58′ N. lat., 123°50.93′ W. 

long.;

(14) 38°55.13′ N. lat., 123°51.14′ W. 

long.;

(15) 38°28.58′ N. lat., 123°22.84′ W. 

long.;

(16) 38°8.32′ N. lat., 123°14.60′ W. 

long.;

(17) 38°0.27′ N. lat., 123°15.29′ W. 

long.;

(18) 37°56.93′ N. lat., 123°21.61′ W. 

long.;

(19) 37°48.01′ N. lat., 123°15.84′ W. 

long.;

972 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

(20) 37°36.77′ N. lat., 122°58.48′ W. 

long.;

(21) 37°1.02′ N. lat., 122°33.71′ W. 

long.;

(22) 37°2.28′ N. lat., 122°25.06′ W. 

long.;

(23) 36°48.20′ N. lat., 122°3.28′ W. 

long.;

(24) 36°51.46′ N. lat., 121°57.54′ W. 

long.;

(25) 36°44.14′ N. lat., 121°58.10′ W. 

long.;

(26) 36°36.76′ N. lat., 122°1.16′ W. 

long.;

(27) 36°15.62′ N. lat., 121°57.13′ W. 

long.;

(28) 36°10.60′ N. lat., 121°43.65′ W. 

long.;

(29) 35°40.38′ N. lat., 121°22.59′ W. 

long.;

(30) 35°24.35′ N. lat., 121°2.53′ W. 

long.;

(31) 35°2.66′ N. lat., 120°51.63′ W. 

long.;

(32) 34°39.52′ N. lat., 120°48.72′ W. 

long.;

(33) 34°31.26′ N. lat., 120°44.12′ W. 

long.; and

(34) 34°27.00′ N. lat., 120°31.25′ W. 

long.

(viii) The 100–fm (183–m) depth 

contour used between 34°27′ N. lat. and 

the U.S. border with Mexico as an 

eastern boundary for the trawl RCA is 

defined by straight lines connecting all 

of the following points in the order 

stated:

(1) 34°27.00′ N. lat., 120°31.74′ W. 

long.;

(2) 34°21.90′ N. lat., 120°25.25′ W. 

long.;

(3) 34°24.86′ N. lat., 120°16.81′ W. 

long.;

(4) 34°22.80′ N. lat., 119°57.06′ W. 

long.;

(5) 34°18.59′ N. lat., 119°44.84′ W. 

long.;

(6) 34°15.04′ N. lat., 119°40.34′ W. 

long.;

(7) 34°14.40′ N. lat., 119°45.39′ W. 

long.;

(8) 34°12.32′ N. lat., 119°42.41′ W. 

long.;

(9) 34°9.71′ N. lat., 119°28.85′ W. 

long.;

(10) 34°4.70′ N. lat., 119°15.38′ W. 

long.;

(11) 34°3.33′ N. lat., 119°12.93′ W. 

long.;

(12) 34°2.72′ N. lat., 119°7.01′ W. 

long.;

(13) 34°3.90′ N. lat., 119°4.64′ W. 

long.;

(14) 34°1.80′ N. lat., 119°3.23′ W. 

long.;

(15) 33°59.32′ N. lat., 119°3.50′ W. 

long.;

(16) 33°59.00′ N. lat., 118°59.55′ W. 

long.;

(17) 33°59.51′ N. lat., 118°57.25′ W. 

long.;

(18) 33°58.82′ N. lat., 118°52.47′ W. 

long.;

(19) 33°58.54′ N. lat., 118°41.86′ W. 

long.;

(20) 33°55.07′ N. lat., 118°34.25′ W. 

long.;

(21) 33°54.28′ N. lat., 118°38.68′ W. 

long.;

(22) 33°51.00′ N. lat., 118°36.66′ W. 

long.;

(23) 33°39.77′ N. lat., 118°18.41′ W. 

long.;

(24) 33°35.50′ N. lat., 118°16.85′ W. 

long.;

(25) 33°32.68′ N. lat., 118°9.82′ W. 

long.;

(26) 33°34.09′ N. lat., 117°54.06′ W. 

long.;

(27) 33°31.60′ N. lat., 117°49.28′ W. 

long.;

(28) 33°16.07′ N. lat., 117°34.74′ W. 

long.;

(29) 33°7.06′ N. lat., 117°22.71′ W. 

long.;

(30) 32°53.34′ N. lat., 117°19.13′ W. 

long.;

(31) 32°46.39′ N. lat., 117°23.45′ W. 

long.;

(32) 32°42.79′ N. lat., 117°21.16′ W. 

long.; and

(33) 32°34.22′ N. lat., 117°21.20′ W. 

long.

(ix) The 150–fm (274–m) depth 

contour used between 38° N. lat. and the 

U.S. border with Mexico as a western 

boundary for both the trawl RCA and 

the non-trawl RCA is defined by straight 

lines connecting all of the following 

points in the order stated:

(1) 37°59.73′ N. lat., 123°29.85′ W. 

long.;

(2) 37°51.46′ N. lat., 123°25.16′ W. 

long.;

(3) 37°44.06′ N. lat., 123°11.44′ W. 

long.;

(4) 37°35.26′ N. lat., 123°2.29′ W. 

long.;

(5) 37°14.00′ N. lat., 122°50.00′ W. 

long.;

(6) 37°1.00′ N. lat., 122°36.00′ W. 

long.;

(7) 36°58.07′ N. lat., 122°28.35′ W. 

long.;

(8) 37°0.71′ N. lat., 122°24.53′ W. 

long.;

(9) 36°57.50′ N. lat., 122°24.98′ W. 

long.;

(10) 36°58.38′ N. lat., 122°21.85′ W. 

long.;

(11) 36°55.85′ N. lat., 122°21.95′ W. 

long.;

(12) 36°52.86′ N. lat., 122°12.89′ W. 

long.;

(13) 36°48.71′ N. lat., 122°9.28′ W. 

long.;

(14) 36°46.65′ N. lat., 122°4.10′ W. 

long.;

(15) 36°51.00′ N. lat., 121°58.00′ W. 

long.;

(16) 36°44.00′ N. lat., 121°59.00′ W. 

long.;

(17) 36°38.00′ N. lat., 122°2.00′ W. 

long.;

(18) 36°26.00′ N. lat., 121°59.05′ W. 

long.;

(19) 36°22.00′ N. lat., 122°1.00′ W. 

long.;

(20) 36°19.00′ N. lat., 122°5.00′ W. 

long.;

(21) 36°14.00′ N. lat., 121°58.00′ W. 

long.;

(22) 36°10.61′ N. lat., 121°44.51′ W. 

long.;

(23) 35°50.53′ N. lat., 121°29.93′ W. 

long.;

(24) 35°46.00′ N. lat., 121°28.00′ W. 

long.;

(25) 35°38.94′ N. lat., 121°23.16′ W. 

long.;

(26) 35°26.00′ N. lat., 121°8.00′ W. 

long.;

(27) 35°7.42′ N. lat., 120°57.08′ W. 

long.;

(28) 34°42.00′ N. lat., 120°54.00′ W. 

long.;

(29) 34°29.00′ N. lat., 120°44.00′ W. 

long.;

(30) 34°22.00′ N. lat., 120°32.00′ W. 

long.;

(31) 34°21.00′ N. lat., 120°21.00′ W. 

long.;

(32) 34°24.00′ N. lat., 120°15.00′ W. 

long.;

(33) 34°22.11′ N. lat., 119°56.63′ W. 

long.;

(34) 34°19.00′ N. lat., 119°48.00′ W. 

long.;

(35) 34°15.00′ N. lat., 119°48.00′ W. 

long.;

(36) 34°8.00′ N. lat., 119°37.00′ W. 

long.;

(37) 34°7.00′ N. lat., 120°11.00′ W. 

long.;

(38) 34°13.00′ N. lat., 120°30.00′ W. 

long.;

(39) 34°9.00′ N. lat., 120°38.00′ W. 

long.;

(40) 33°58.00′ N. lat., 120°29.00′ W. 

long.;

(41) 33°51.00′ N. lat., 120°9.00′ W. 

long.;

(42) 33°38.00′ N. lat., 119°58.00′ W. 

long.;

(43) 33°38.00′ N. lat., 119°50.00′ W. 

long.;

(44) 33°46.25′ N. lat., 119°49.32′ W. 

long.;

(45) 33°53.82′ N. lat., 119°53.42′ W. 

long.;

(46) 33°59.00′ N. lat., 119°21.00′ W. 

long.;

(47) 34°2.00′ N. lat., 119°13.00′ W. 

long.;

(48) 34°1.52′ N. lat., 119°4.50′ W. 

long.;

(49) 33°58.83′ N. lat., 119°3.76′ W. 

long.;

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 973

(50) 33°56.55′ N. lat., 118°40.50′ W. 

long.;

(51) 33°51.00′ N. lat., 118°38.00′ W. 

long.;

(52) 33°39.63′ N. lat., 118°18.75′ W. 

long.;

(53) 33°35.44′ N. lat., 118°17.57′ W. 

long.;

(54) 33°31.98′ N. lat., 118°12.59′ W. 

long.;

(55) 33°33.25′ N. lat., 117°54.15′ W. 

long.;

(56) 33°31.43′ N. lat., 117°49.84′ W. 

long.;

(57) 33°16.53′ N. lat., 117°36.13′ W. 

long.;

(58) 33°6.51′ N. lat., 117°24.11′ W. 

long.;

(59) 32°54.11′ N. lat., 117°21.45′ W. 

long.;

(60) 32°46.15′ N. lat., 117°24.26′ W. 

long.;

(61) 32°41.97′ N. lat., 117°22.10′ W. 

long.;

(62) 32°39.00′ N. lat., 117°28.13′ W. 

long.; and

(63) 32°34.84′ N. lat., 117°24.62′ W. 

long.

(x) The 150–fm (274–m) depth 

contour used around islands/seamounts 

off the state of California is defined by 

straight lines around each island/

seamount connecting all of the 

following points in the order stated:

(A) San Nicholas Island

(1) 33°32.73′ N. lat., 119°47.00′ W. 

long.;

(2) 33°14.00′ N. lat., 119°15.00′ W. 

long.;

(3) 33°12.00′ N. lat., 119°18.00′ W. 

long.;

(4) 33°11.00′ N. lat., 119°26.00′ W. 

long.;

(5) 33°13.13′ N. lat., 119°43.19′ W. 

long.;

(6) 33°13.11′ N. lat., 119°53.05′ W. 

long.;

(7) 33°30.00′ N. lat., 119°52.00′ W. 

long.; and

(8) 33°32.73′ N. lat., 119°47.00′ W. 

long.

(B) Santa Catalina Island

(1) 33°19.00′ N. lat., 118°15.00′ W. 

long.;

(2) 33°26.00′ N. lat., 118°22.00′ W. 

long.;

(3) 33°28.00′ N. lat., 118°28.00′ W. 

long.;

(4) 33°30.00′ N. lat., 118°31.00′ W. 

long.;

(5) 33°31.00′ N. lat., 118°37.00′ W. 

long.;

(6) 33°29.00′ N. lat., 118°41.00′ W. 

long.;

(7) 33°23.00′ N. lat., 118°31.00′ W. 

long.;

(8) 33°21.00′ N. lat., 118°33.00′ W. 

long.;

(9) 33°18.00′ N. lat., 118°28.00′ W. 

long.;

(10) 33°16.00′ N. lat., 118°13.00′ W. 

long.; and

(11) 33°19.00′ N. lat., 118°15.00′ W. 

long.

(C) San Clemente Island

(1) 32°48.50′ N. lat., 118°18.34′ W. 

long.;

(2) 32°56.00′ N. lat., 118°29.00′ W. 

long.;

(3) 33°3.00′ N. lat., 118°34.00′ W. 

long.;

(4) 33°5.00′ N. lat., 118°38.00′ W. 

long.;

(5) 33°3.00′ N. lat., 118°40.00′ W. 

long.;

(6) 32°48.00′ N. lat., 118°31.00′ W. 

long.;

(7) 32°43.00′ N. lat., 118°24.00′ W. 

long.; and

(8) 32°48.50′ N. lat., 118°18.34′ W. 

long.

(D) Santa Barbara Island

(1) 33°36.06′ N. lat., 118°57.15′ W. 

long.;

(2) 33°20.64′ N. lat., 118°59.39′ W. 

long.;

(3) 33°23.00′ N. lat., 119°7.00′ W. 

long.;

(4) 33°43.00′ N. lat., 119°14.00′ W. 

long.;

(5) 33°46.00′ N. lat., 119°12.00′ W. 

long.; and

(6) 33°36.06′ N. lat., 118°57.15′ W. 

long.

(E) Orange County Seamount

(1) 33°25.00′ N. lat., 118°1.00′ W. 

long.;

(2) 33°25.00′ N. lat., 117°58.00′ W. 

long.;

(3) 33°23.00′ N. lat., 117°58.00′ W. 

long.;

(4) 33°23.00′ N. lat., 118°1.00′ W. 

long.; and

(5) 33°25.00′ N. lat., 118°1.00′ W. 

long.

(xi) The 50–fm (91–m) depth contour 

off Oregon state, which may be used for 

inseason management in 2003 is defined 

by straight lines connecting all of the 

following points in the order stated:

(1) 46°16.00′ N. lat., 124°17.33′ W. 

long.;

(2) 45°50.88′ N. lat., 124°9.68′ W. 

long.;

(3) 45°12.99′ N. lat., 124°6.71′ W. 

long.;

(4) 44°52.48′ N. lat., 124°11.22′ W. 

long.;

(5) 44°42.41′ N. lat., 124°19.70′ W. 

long.;

(6) 44°38.80′ N. lat., 124°26.58′ W. 

long.;

(7) 44°24.99′ N. lat., 124°31.22′ W. 

long.;

(8) 44°18.11′ N. lat., 124°43.74′ W. 

long.;

(9) 44°15.23′ N. lat., 124°40.47′ W. 

long.;

(10) 44°18.80′ N. lat., 124°35.48′ W. 

long.;

(11) 44°19.62′ N. lat., 124°27.18′ W. 

long.;

(12) 43°56.65′ N. lat., 124°16.86′ W. 

long.;

(13) 43°34.95′ N. lat., 124°17.47′ W. 

long.;

(14) 43°12.60′ N. lat., 124°35.80′ W. 

long.;

(15) 43°8.96′ N. lat., 124°33.77′ W. 

long.;

(16) 42°59.66′ N. lat., 124°34.79′ W. 

long.;

(17) 42°54.29′ N. lat., 124°39.46′ W. 

long.;

(18) 42°46.50′ N. lat., 124°39.99′ W. 

long.;

(19) 42°41.00′ N. lat., 124°34.92′ W. 

long.;

(20) 42°36.29′ N. lat., 124°34.70′ W. 

long.;

(21) 42°28.36′ N. lat., 124°37.90′ W. 

long.;

(22) 42°25.53′ N. lat., 124°37.68′ W. 

long.;

(23) 42°18.64′ N. lat., 124°29.47′ W. 

long.;

(24) 42°12.95′ N. lat., 124°27.34′ W. 

long.;

(25) 42°3.04′ N. lat., 124°25.81′ W. 

long.; and

(26) 42°0.00′ N. lat., 124°26.21′ W. 

long.

(xii) The 150–fm (274–m) depth 

contour between 46°16′ N. lat. and 38°

N. lat., which may be used for inseason 

management in 2003 is defined by 

straight lines connecting all of the 

following points in the order stated:

(1) 46°16.00′ N. lat., 124°26.15′ W. 

long.;

(2) 46°13.38′ N. lat., 124°31.36′ W. 

long.;

(3) 46°12.09′ N. lat., 124°38.39′ W. 

long.;

(4) 46°9.46′ N. lat., 124°40.64′ W. 

long.;

(5) 46°7.30′ N. lat., 124°40.68′ W. 

long.;

(6) 46°2.76′ N. lat., 124°44.01′ W. 

long.;

(7) 46°2.64′ N. lat., 124°47.96′ W. 

long.;

(8) 46°1.22′ N. lat., 124°43.47′ W. 

long.;

(9) 45°51.81′ N. lat., 124°42.89′ W. 

long.;

(10) 45°45.95′ N. lat., 124°40.72′ W. 

long.;

(11) 45°44.11′ N. lat., 124°43.09′ W. 

long.;

(12) 45°34.50′ N. lat., 124°30.27′ W. 

long.;

(13) 45°21.10′ N. lat., 124°23.11′ W. 

long.;

(14) 45°9.69′ N. lat., 124°20.45′ W. 

long.;

(15) 44°56.25′ N. lat., 124°27.03′ W. 

long.;

(16) 44°44.47′ N. lat., 124°37.85′ W. 

long.;

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(17) 44°31.81′ N. lat., 124°39.60′ W. 

long.;

(18) 44°31.48′ N. lat., 124°43.30′ W. 

long.;

(19) 44°19.70′ N. lat., 124°50.88′ W. 

long.;

(20) 44°12.04′ N. lat., 124°58.16′ W. 

long.;

(21) 44°7.38′ N. lat., 124°57.87′ W. 

long.;

(22) 43°57.06′ N. lat., 124°57.20′ W. 

long.;

(23) 43°52.52′ N. lat., 124°49.00′ W. 

long.;

(24) 43°51.56′ N. lat., 124°37.49′ W. 

long.;

(25) 43°47.83′ N. lat., 124°36.43′ W. 

long.;

(26) 43°31.79′ N. lat., 124°36.80′ W. 

long.;

(27) 43°30.78′ N. lat., 124°38.19′ W. 

long.;

(28) 43°29.34′ N. lat., 124°36.77′ W. 

long.;

(29) 43°26.46′ N. lat., 124°40.02′ W. 

long.;

(30) 43°16.15′ N. lat., 124°44.37′ W. 

long.;

(31) 43°9.33′ N. lat., 124°45.35′ W. 

long.;

(32) 43°8.85′ N. lat., 124°48.92′ W. 

long.;

(33) 43°3.23′ N. lat., 124°52.41′ W. 

long.;

(34) 43°0.25′ N. lat., 124°51.93′ W. 

long.;

(35) 42°56.62′ N. lat., 124°53.93′ W. 

long.;

(36) 42°54.84′ N. lat., 124°54.01′ W. 

long.;

(37) 42°52.31′ N. lat., 124°50.76′ W. 

long.;

(38) 42°47.78′ N. lat., 124°47.27′ W. 

long.;

(39) 42°46.32′ N. lat., 124°43.59′ W. 

long.;

(40) 42°41.63′ N. lat., 124°44.07′ W. 

long.;

(41) 42°38.83′ N. lat., 124°42.77′ W. 

long.;

(42) 42°35.37′ N. lat., 124°43.22′ W. 

long.;

(43) 42°32.78′ N. lat., 124°44.68′ W. 

long.;

(44) 42°32.19′ N. lat., 124°42.40′ W. 

long.;

(45) 42°30.28′ N. lat., 124°44.30′ W. 

long.;

(46) 42°28.16′ N. lat., 124°48.38′ W. 

long.;

(47) 42°18.34′ N. lat., 124°38.77′ W. 

long.;

(48) 42°13.65′ N. lat., 124°36.82′ W. 

long.;

(49) 42°0.15′ N. lat., 124°35.81′ W. 

long.;

(50) 41°47.79′ N. lat., 124°29.52′ W. 

long.;

(51) 41°21.00′ N. lat., 124°29.00′ W. 

long.;

(52) 41°11.00′ N. lat., 124°23.00′ W. 

long.;

(53) 41°5.00′ N. lat., 124°23.00′ W. 

long.;

(54) 40°54.00′ N. lat., 124°26.00′ W. 

long.;

(55) 40°50.00′ N. lat., 124°26.00′ W. 

long.;

(56) 40°44.51′ N. lat., 124°30.83′ W. 

long.;

(57) 40°40.61′ N. lat., 124°32.06′ W. 

long.;

(58) 40°37.36′ N. lat., 124°29.41′ W. 

long.;

(59) 40°35.64′ N. lat., 124°30.47′ W. 

long.;

(60) 40°37.43′ N. lat., 124°37.10′ W. 

long.;

(61) 40°36.00′ N. lat., 124°40.00′ W. 

long.;

(62) 40°31.59′ N. lat., 124°40.72′ W. 

long.;

(63) 40°24.64′ N. lat., 124°35.62′ W. 

long.;

(64) 40°23.00′ N. lat., 124°32.00′ W. 

long.;

(65) 40°23.39′ N. lat., 124°28.70′ W. 

long.;

(66) 40°22.28′ N. lat., 124°25.25′ W. 

long.;

(67) 40°21.90′ N. lat., 124°25.17′ W. 

long.;

(68) 40°22.00′ N. lat., 124°28.00′ W. 

long.;

(69) 40°21.35′ N. lat., 124°29.53′ W. 

long.;

(70) 40°19.75′ N. lat., 124°28.98′ W. 

long.;

(71) 40°18.15′ N. lat., 124°27.01′ W. 

long.;

(72) 40°17.45′ N. lat., 124°25.49′ W. 

long.;

(73) 40°18.00′ N. lat., 124°24.00′ W. 

long.;

(74) 40°16.00′ N. lat., 124°26.00′ W. 

long.;

(75) 40°17.00′ N. lat., 124°35.00′ W. 

long.;

(76) 40°16.00′ N. lat., 124°36.00′ W. 

long.;

(77) 40°10.07′ N. lat., 124°22.90′ W. 

long.;

(78) 40°7.00′ N. lat., 124°19.00′ W. 

long.;

(79) 40°8.10′ N. lat., 124°16.70′ W. 

long.;

(80) 40°5.90′ N. lat., 124°17.77′ W. 

long.;

(81) 40°1.46′ N. lat., 124°12.85′ W. 

long.;

(82) 40°4.32′ N. lat., 124°10.33′ W. 

long.;

(83) 40°3.21′ N. lat., 124°8.83′ W. 

long.;

(84) 40°1.33′ N. lat., 124°8.70′ W. 

long.;

(85) 39°58.51′ N. lat., 124°12.44′ W. 

long.; and

(86) 38°00.00′ N. lat., 124°7.49′ W. 

long.

(20) Rockfish categories. Rockfish 

(except thornyheads) are divided into 

categories north and south of 40°10′ N. 

lat., depending on the depth where they 

most often are caught: nearshore, shelf, 

or slope (scientific names appear in 

Table 2). Nearshore rockfish are further 

divided into shallow nearshore and 

deeper nearshore categories south of 

40°10′ N. lat. Trip limits are established 

for ‘‘minor rockfish’’ species according 

to these categories (see Tables 2–5).

(a) Nearshore rockfish consists 

entirely of the minor nearshore rockfish 

species listed in Table 2, which 

includes California scorpionfish.

(i) Shallow nearshore rockfish 

consists of black-and-yellow rockfish, 

China rockfish, gopher rockfish, grass 

rockfish, and kelp rockfish.

(ii) Deeper nearshore rockfish consists 

of black rockfish, blue rockfish, brown 

rockfish, calico rockfish, copper 

rockfish, olive rockfish, quillback 

rockfish, and treefish.

(iii) California scorpionfish.

(b) Shelf rockfish consists of canary 

rockfish, shortbelly rockfish, widow 

rockfish, yelloweye rockfish, yellowtail 

rockfish, bocaccio, chilipepper, cowcod, 

and the minor shelf rockfish species 

listed in Table 2.

(c) Slope rockfish consists of Pacific 

ocean perch, splitnose rockfish, 

darkblotched rockfish, and the minor 

slope rockfish species listed in Table 2.

BILLING CODE 3510–22–S

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 975

B. Limited Entry Fishery

(1) General. Most species taken in 

limited entry fisheries will be managed 

with cumulative trip limits (see 

paragraph IV.A.(1)(d),) size limits (see 

paragraph IV.A.(6)), seasons (see 

paragraph IV.A. (7)), and areas that are 

closed to specific gear types. The trawl 

fishery has gear requirements and trip 

limits that differ by the type of trawl 

gear on board (see paragraph IV.A.(14)). 

Cowcod retention is prohibited in all 

fisheries and groundfish vessels 

operating south of Point Conception


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must adhere to CCA restrictions (see 

paragraph IV.A. (20)). Yelloweye 

rockfish retention is prohibited in the 

limited entry fixed gear fisheries. Most 

of the management measures for the 

limited entry fishery are listed above 

and in the following tables: Table 3 

(North), Table 3 (South), Table 4 

(North), and Table 4 (South).

A header in Table 3 (North), Table 3 

(South), Table 4 (North), and Table 5 

(South) approximates the Rockfish 

Conservation Area (i.e., closed area) for 

vessels participating in the limited entry 

fishery. [Note: Between a line drawn 

due south from

Point Fermin (33° 42′ 30′′ N. lat.; 118°

17′ 30′′ W. long.) and a line drawn due 

west from the Newport South Jetty (33°

35′ 37′′ N. lat.; 117° 52′ 50′′ W. long.,) 

vessels fishing with hook-and-line and/

or trap (or pot) gear may operate from 

shore to a boundary line approximating 

50 fm (91 m).]

Management measures may be 

changed during the year by 

announcement in the Federal Register. 

However, the management regimes for 

several fisheries (nontrawl sablefish, 

Pacific whiting, and black rockfish) do 

not neatly fit into these tables and are 

addressed immediately following Table 

3 (North), Table 3 (South), Table 4 

(North), and Table 4 (South).


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BILLING CODE 3510–22–C

(2) Sablefish. The limited entry 

sablefish allocation is further allocated 

58 percent to trawl gear and 42 percent 

to nontrawl gear. See footnote e/ of 

Table 1a.

(a) Trawl trip and size limits. 

Management measures for the limited 

entry trawl fishery for sablefish are 

listed in Table 3 (North) and Table 3 

(South).

(b) Nontrawl (fixed gear) trip and size 

limits. To take, retain, possess, or land 

sablefish during the primary season for 

the limited entry fixed gear sablefish 

fishery, the owner of a vessel must hold 

a limited entry permit for that vessel, 

affixed with both a gear endorsement for 

longline or trap (or pot) gear, and a 

sablefish endorsement. (See 50 CFR 

660.323(a)(2)(i).) A sablefish 

endorsement is not required to 

participate in the limited entry daily 

trip limit fishery.

(i) Primary season. The primary 

season begins at 12 noon l.t. on April 1, 

2003, and ends at 12 noon l.t. on


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October 31, 2003. There are no preseason or post-season closures. During 

the primary season, each vessel with at 

least one limited entry permit with a 

sablefish endorsement that is registered 

for use with that vessel may land up to 

the cumulative trip limit for each of the 

sablefish-endorsed limited entry permits 

registered for use with that vessel, for 

the tier(s) to which the permit(s) are 

assigned. For 2003, the following limits 

would be in effect: Tier 1, 53,000 lb 

(24,040 kg); Tier 2, 24,000 lb (10,886 

kg); Tier 3, 14,000 lb (6,350 kg). All 

limits are in round weight. If a vessel is 

registered for use with a sablefishendorsed limited entry permit, all 

sablefish taken after April 1, 2003 count 

against the cumulative limits associated 

with the permit(s) registered for use 

with that vessel.

(ii) Daily trip limit. Daily and/or 

weekly sablefish trip limits listed in 

Table 4 (North) and Table 4 (South) 

apply to any limited entry fixed gear 

vessels not participating in the primary 

sablefish season described in paragraph 

(i) of this section. North of 36° N. lat., 

the daily and/or weekly trip limits 

apply to fixed gear vessels that are not 

registered for use with a sablefishendorsed limited entry permit, and to 

fixed gear vessels that are registered for 

use with a sablefish-endorsed limited 

entry permit when those vessels are not 

fishing against their primary sablefish 

season cumulative limits. South of 36°

N. lat., the daily and/or weekly trip 

limits for taking and retaining sablefish 

that are listed in Table 4 (South) apply 

throughout the year to all vessels 

registered for use with a limited entry 

fixed gear permit.

(iii) Participating in both the primary 

and daily trip limit fisheries. A vessel 

that is eligible to participate in the 

primary sablefish season may 

participate in the daily trip limit fishery 

for sablefish once that vessel’s primary 

season sablefish limit(s) have been taken 

or after October 31, 2003, whichever 

occurs first. No vessel may land 

sablefish against both its primary season 

cumulative sablefish limits and against 

the daily trip limit fishery limits within 

the same 24 hour period of 0001 hour 

l.t. to 2400 hours l.t. If a vessel has taken 

all of its tier limit except for an amount 

that is smaller than the daily trip limit 

amount, that vessel′s subsequent 

sablefish landings are automatically 

subject to daily and/or weekly trip 

limits.

(3) Whiting. Additional regulations 

that apply to the whiting fishery are 

found at 50 CFR 660.306 and at 50 CFR 

660.323(a)(3) and (a)(4).

(a) Allocations. The non-tribal 

allocations, based on percentages that 

are applied to the commercial OY of 

121,200 mt in 2003 (see 50 CFR 660.323 

(a)(4)), are as follows:

(i) Catcher/processor sector—41,288 

mt (34 percent);

(ii) Mothership sector—29,080 mt (24 

percent);

(iii) Shore-based sector—50,904 mt 

(42 percent). No more than 5 percent 

(2,545 mt) of the shore-based whiting 

allocation may be taken before the 

shore-based fishery begins north of 42°

N. lat. on June 15, 2003.

(iv) Tribal allocation—See paragraph 

V.

(b) Seasons. The 2003 primary 

seasons for the whiting fishery start on 

the same dates as in 2002, as follows 

(see 50 CFR 660.323(a)(3)):

(i) Catcher/processor sector—May 15;

(ii) Mothership sector—May 15;

(iii) Shore-based sector—June 15 

north of 42° N. lat.; April 1 between 42°-

40°30′ N. lat.; April 15 south of 40°30′

N. lat.

(c) Trip limits. (i) Before and after the 

regular season. The ‘‘per trip’’ limit for 

whiting before and after the regular 

season for the shore-based sector is 

announced in Table 3 (North) and Table 

3 (South), as authorized at 50 CFR 

660.323(a)(3) and (a)(4). This trip limit 

includes any whiting caught shoreward 

of 100 fathoms (183 m) in the Eureka 

area.

(ii) Inside the Eureka 100 fm (183 m) 

contour. No more than 10,000 lb (4,536 

kg) of whiting may be taken and 

retained, possessed, or landed by a 

vessel that, at any time during a fishing 

trip, fished in the fishery management 

area shoreward of the 100 fathom (183 

m) contour (as shown on NOAA Charts 

18580, 18600, and 18620) in the Eureka 

area.

(4) Black rockfish. The regulations at 

50 CFR 660.323(a)(1) state: ‘‘The trip 

limit for black rockfish (Sebastes 

melanops) for commercial fishing 

vessels using hook-and-line gear 

between the U.S.-Canada border and 

Cape Alava (48°09′30′′ N. lat.) and 

between Destruction Island (47°40′00′′

N. lat.) and Leadbetter Point (46°38′10′′

N. lat.), is 100 lb (45 kg) or 30 percent, 

by weight of all fish on board, 

whichever is greater, per vessel per 

fishing trip.’’ These ‘‘per trip’’ limits 

apply to limited entry and open access 

fisheries, in conjunction with the 

cumulative trip limits and other 

management measures listed in Tables 4 

(North) and Table 5 (North) of section 

IV. The crossover provisions at 

paragraphs IV.A. (12) do not apply to 

the black rockfish per-trip limits.

C. Trip Limits in the Open Access 

Fishery

(1) General. Open access gear is gear 

used to take and retain groundfish from 

a vessel that does not have a valid 

permit for the Pacific Coast groundfish 

fishery with an endorsement for the gear 

used to harvest the groundfish. This 

includes longline, trap, pot, hook-andline (fixed or mobile), setnet and 

trammel net (south of 38° N. lat. only), 

and exempted trawl gear (trawls used to 

target non-groundfish species: pink 

shrimp or prawns, and, south of Pt. 

Arena, CA (38°57′30′′ N. lat.), CA 

halibut or sea cucumbers). Unless 

otherwise specified, a vessel operating 

in the open access fishery is subject to, 

and must not exceed any trip limit, 

frequency limit, and/or size limit for the 

open access fishery. Groundfish species 

taken in open access fisheries will be 

managed with cumulative trip limits 

(see paragraph IV.A.(1)(d)), size limits 

(see paragraph IV.A.(6)), seasons (see 

paragraph IV.A.(7)), and closed areas. 

Cowcod retention is prohibited in all 

fisheries and groundfish vessels 

operating south of Point Conception 

must adhere to CCA restrictions (see 

paragraph IV.A.(19)). Retention of 

yelloweye rockfish and canary rockfish 

and, south of 40°10′ N. lat., bocaccio is 

prohibited in all open access fisheries. 

The trip limits, size limits, seasons, and 

other management measures for open 

access groundfish gear, including 

exempted trawl gear, are listed in Table 

5 (North) and Table 5 (South). A header 

in Table 5 (North) and Table 5 (South) 

approximates the RCA (i.e., closed area) 

for vessels participating in the open 

access fishery. [Note: Between a line 

drawn due south from Point Fermin (33 

42′30′′ N. lat.; 118 17′30′′ W. long.) and 

a line drawn due west from the Newport 

South Jetty (33 35′37′′ N. lat.; 117 52′50′′

W. long.,) vessels fishing with hookand-line and/or trap (or pot) gear may 

operate from shore to a boundary line 

approximating 50 fm (91 m) in the 

months of July and August.] For vessels 

participating in exempted trawl 

fisheries, the RCAs are the same as those 

for limited entry trawl gear. Exempted 

trawl gear RCAs are detailed in the 

exempted trawl gear sections at the 

bottom of Table 5 (North) and Table 5 

(South). Retention of groundfish caught 

by exempted trawl gear is prohibited in 

the designated RCAs. The trip limit at 

50 CFR 660.323(a)(1) for black rockfish 

caught with hook-and-line gear also 

applies. (The black rockfish limit is 

repeated at paragraph IV.B.(4).)

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(2) Groundfish taken with exempted 

trawl gear by vessels engaged in fishing 

for spot and ridgeback prawns, 

California halibut, or sea cucumbers. 

[Note: The States of California and 

Washington will likely prohibit trawling 

for spot prawn beginning in 2003, while 

the State of Oregon will likely begin 

phasing out trawling for spot prawn in 

2003.] Trip limits and RCAs for 

groundfish retained in the spot and 

ridgeback prawn, California halibut, or 

sea cucumber fisheries are in Table 5 

(North) and Table 5 (South). (a) State 

law. The trip limits in Table 5(North) 

and Table 5(South) are not intended to 

supersede any more restrictive State law 

relating to the retention of groundfish 

taken in shrimp or prawn pots or traps.

(b) Participation in the California 

halibut fishery. A trawl vessel will be 

considered participating in the 

California halibut fishery if:

(i) It is not fishing under a valid 

limited entry permit issued under 50 

CFR 660.333 for trawl gear;

(ii) All fishing on the trip takes place 

south of Pt. Arena, CA; and

(iii) The landing includes California 

halibut of a size required by California 

Fish and Game Code section 8392(a), 

which states: ‘‘No California halibut 

may be taken, possessed or sold which 

measures less than 22 in (56 cm) in total 

length, unless it weighs 4 lbs (1.8144 kg) 

or more in the round, 3 and one-half lbs 

(1.587 kg) or more dressed with the 

head on, or 3 lbs (1.3608 kg) or more 

dressed with the head off. Total length 

means ‘‘the shortest distance between 

the tip of the jaw or snout, whichever 

extends farthest while the mouth is 

closed, and the tip of the longest lobe of 

the tail, measured while the halibut is 

lying flat in natural repose, without 

resort to any force other than the 

swinging or fanning of the tail.’’

(c) Participation in the sea cucumber 

fishery. A trawl vessel will be 

considered to be participating in the sea 

cucumber fishery if:

(i) It is not fishing under a valid 

limited entry permit issued under 50 

CFR 660.333 for trawl gear;

(ii) All fishing on the trip takes place 

south of Pt. Arena, CA; and

(iii) The landing includes sea 

cucumbers taken in accordance with 

California Fish and Game Code, section 

8405, which requires a permit issued by 

the State of California.

(3) Groundfish taken with exempted 

trawl gear by vessels engaged in fishing 

for pink shrimp. Trip limits for 

groundfish retained in the pink shrimp 

fishery are in Table 5 (North) and Table 

5 (South). Notwithstanding section 

IV.A.(11), a vessel that takes and retains 

pink shrimp and also takes and retains 

groundfish in either the limited entry or 

another open access fishery during the 

same applicable cumulative limit period 

that it takes and retains pink shrimp 

(which may be 1 month or 2 months, 

depending on the fishery and the time 

of year), may retain the larger of the two 

limits, but only if the limit(s) for each 

gear or fishery are not exceeded when 

operating in that fishery or with that 

gear. The limits are not additive; the 

vessel may not retain a separate trip 

limit for each fishery.

D. Recreational Fishery

Federal recreational groundfish 

regulations are not intended to 

supersede any more restrictive State 

recreational groundfish regulations 

relating to federally-managed 

groundfish.

(1) Washington. For each person 

engaged in recreational fishing seaward 

of Washington, the groundfish bag limit 

is 15 groundfish, including rockfish and 

lingcod, and is open year-round (except 

for lingcod). The following sublimits 

and closed areas apply:

(a) Yelloweye Rockfish Conservation 

Area. The Yelloweye Rockfish 

Conservation Area, or YRCA, is an ‘‘Cshaped’’ area which is closed to 

recreational groundfish and halibut 

fishing. The coordinates for the YRCA 

are defined at 50 CFR 660.304(d).

(b) Rockfish. In areas seaward of 

Washington that are open to recreational 

groundfish fishing, there is a 10 rockfish 

per day bag limit, of which no more 

than 1 may be canary rockfish. Taking 

and retaining yelloweye rockfish is 

prohibited.

(c) Lingcod. Recreational fishing for 

lingcod is closed between January 1 and 

March 15, and between October 16 and 

December 31. In areas seaward of 

Washington that are open to recreational 

groundfish fishing and when the 

recreational season for lingcod is open 

(i.e., between March 16–October 15), 

there is a bag limit of 2 lingcod per day, 

which may be no smaller than 24 in (61 

cm) total length.

(2) Oregon. The bag limits for each 

person engaged in recreational fishing 

seaward of Oregon are 2 lingcod per 

day, which may be no smaller than 24 

in (61 cm) total length; and 10 marine 

fish per day, which excludes salmon, 

tuna, surfperch, sanddab, lingcod, and 

baitfish, but which includes rockfish 

and other groundfish. The minimum 

size limit for cabezon retained in the 

recreational fishery is 15 in (38 cm). 

Within the 10 marine fish bag limit, no 

more than 1 may be canary rockfish, no 

more than 1 may be yelloweye rockfish 

and when the all-depth recreational 

fisheries for Pacific halibut 

(Hippoglossus stenolopis) are open, the 

first Pacific halibut taken of 32 in (81 

cm) (or greater in length may be 

retained. During the all-depth 

recreational fisheries for Pacific halibut, 

vessels with halibut on board may not 

take, retain, possess or land yelloweye 

rockfish or canary rockfish.

(3) California. Seaward of California 

(north and south of 40°10′ N. lat.), 

California law provides that, in times 

and areas when the recreational fishery 

is open, there is a 20–fish bag limit for 

all species of finfish, within which no 

more than 10 fish of any one species 

may be taken or possessed by any one 

person. Retention of cowcod is 

prohibited in California’s recreational 

fishery all year in all areas.

(a) North of 40°10′ N. lat. North of 

40°10′ N. lat. to the California/Oregon 

border, California’s recreational 

groundfish fishery will generally 

conform with Oregon’s recreational 

regulations (see IV.D.(2)). For each 

person engaged in recreational fishing 

seaward of California north of 40°10′ N. 

lat., the following seasons, bag limits, 

and size limits apply:

(i) RCG Complex. The California 

rockfish, cabezon, greenling complex 

(RCG Complex), as defined in State 

regulations (Section 1.91, Title 14, 

California Code of Regulations), 

includes all rockfish, kelp greenling, 

rock greenling, and cabezon. This 

category does not include California 

scorpionfish, also known as ‘‘sculpin.’’

(A) Seasons. North of 40°10′ N. lat., 

recreational fishing for the RCG 

Complex is open from January 1 through 

December 31.

(B) Bag limits, boat limits, hook limits. 

North of 40°10′ N. lat., the bag limit is 

10 rockfish per day, of which no more 

than 2 may be bocaccio, 1 may be 

canary rockfish, and no more than 1 per 

day up to a maximum of two per boat 

may be yelloweye rockfish. The 

following daily bag limits also apply: no 

more than 10 cabezon per day and no 

more than 10 greenlings (kelp and/or 

rock greenlings) per day. Multi-day 

limits are authorized by a valid permit 

issued by California and must not 

exceed the daily limit multiplied by the 

number of days in the fishing trip.

(C) Size limits. The following size 

limits apply: cabezon may be no smaller 

than 15 in (38 cm) total length and kelp 

and rock greenling may be no smaller 

than 12 in (30 cm) total length.

(D) Dressing/Filleting. Cabezon, kelp 

greenling, and rock greenling taken in 

the recreational fishery may not be 

filleted at sea. Rockfish skin may not be 

removed when filleting or otherwise 

dressing rockfish taken in the 

recreational fishery. Brown-skinned

984 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

rockfish fillets may be no smaller than 

6.5 in (16.6 cm). ‘‘Brown-skinned’’

rockfish include the following species: 

brown, calico, copper, gopher, kelp, 

olive, speckled, squarespot, and 

yellowtail.

(ii) Lingcod.

(A) Seasons. North of 40°10′ N. lat., 

recreational fishing for lingcod is open 

from January 1 through December 31.

(B) Bag limits, boat limits, hook limits. 

North of 40°10′ N. lat., the bag limit is 

2 lingcod per day. Multi-day limits are 

authorized by a valid permit issued by 

California and must not exceed the daily 

limit multiplied by the number of days 

in the fishing trip.

(C) Size limits. Lingcod may be no 

smaller than 24 in (61 cm) total length.

(D) Dressing/Fileting. Lingcod filets 

may be no smaller than 16 in. (41 cm) 

in length .

(b) South of 40°10′ N. lat. For each 

person engaged in recreational fishing 

seaward of California south of 40°10′ N. 

lat., the following seasons, bag limits, 

size limits and closed areas apply:

(i) Closed Areas.

(A) Cowcod Conservation Areas. 

Recreational fishing for all groundfish is 

prohibited within the CCAs, for 

coordinates described in Federal 

regulations at 50 CFR 660.304(c), except 

that fishing for sanddabs is permitted 

subject to the provisions in paragraph 

IV.D.(3)(iv) and that fishing for species 

managed under this section (not 

including cowcod, bocaccio, canary, 

and yelloweye rockfishes) are permitted 

in waters shoreward of the 20–fm (37–

m) depth contour within the CCAs from 

July 1 through December 31, 2003, 

subject to the bag limits in this section.

(B) South of 40°10′ N. lat., recreational 

fishing for all groundfish, including 

lingcod, is prohibited seaward of the 

20–fm (37–m) depth contour, except 

that recreational fishing for sanddabs is 

permitted seaward of the 20–fm (37–m) 

depth contour subject to the provisions 

in paragraph IV.D.(3)(iv).

(ii) RCG Complex. The California 

rockfish, cabezon, greenling complex 

(RCG Complex), as defined in State 

regulations (Section 1.91, Title 14, 

California Code of Regulations), 

includes all rockfish, kelp greenling, 

rock greenling, and cabezon. This 

category does not include California 

scorpionfish, also known as ‘‘sculpin.’’

(A) Seasons. South of 40°10′ N. lat., 

recreational fishing for the RCG 

Complex is open from July 1 through 

December 31 (i.e., it’s closed from 

January 1 through June 30). When 

recreational fishing for the RCG 

Complex is open, it is permitted only 

inside the 20–fm (37–m) depth contour, 

subject to the bag limits in paragraph (B) 

of this section.

(B) Bag limits, boat limits, hook limits. 

South of 40°10′ N. lat., in times and 

areas when the recreational season for 

the RCG Complex is open, there is a 

limit of 2–hooks and one line when 

fishing for rockfish, and the bag limit is 

10 RCG Complex fish per day, of which 

up to 10 may be rockfish, no more than 

2 of which may be shallow nearshore 

rockfish. [Note: The shallow nearshore 

rockfish group off California are 

composed of kelp, grass, black-andyellow, China, and gopher rockfishes.] 

Also within the 10 RCG Complex fish 

per day limit, no more than 2 fish per 

day may be greenlings (kelp and/or rock 

greenlings) and no more than 3 fish per 

day may be cabezon. Lingcod, California 

scorpionfish and sanddabs taken in 

recreational fisheries off California do 

not count toward the 10 RCG Complex 

fish per day bag limit. Multi-day limits 

are authorized by a valid permit issued 

by California and must not exceed the 

daily limit multiplied by the number of 

days in the fishing trip.

(C) Size limits. The following size 

limits apply: cabezon may be no smaller 

than 15 in (38 cm) and kelp and rock 

greenling may be no smaller than 12 in 

(30 cm).

(B) Dressing/Filleting. Cabezon, kelp 

greenling, and rock greenling taken in 

the recreational fishery may not be 

filleted at sea. Rockfish skin may not be 

removed when filleting or otherwise 

dressing rockfish taken in the 

recreational fishery. Brown-skinned 

rockfish filets may be no smaller than 

6.5 in (16.6 cm). ‘‘Brown-skinned’’

rockfish include the following species: 

brown, calico, copper, gopher, kelp, 

olive, speckled, squarespot, and 

yellowtail.

(iii) California scorpionfish. California 

scorpionfish only occur south of 40°10′

N. lat.

(A) Seasons. South of 40°10′ N. lat., 

recreational fishing for California 

scorpionfish is closed from March 1 

through June 30 (i.e., the California 

scorpionfish season is open during 

January-February and during JulyDecember). When recreational fishing 

for California scorpionfish is open, it is 

permitted only inside the 20–fm (37–m) 

depth contour (except at Huntington 

Flats between a line drawn due south 

from Point Fermin (33 42′30′′ N. lat.; 118 

17′30’’ W. long.) and a line drawn due 

west from the Newport South Jetty (33 

35′37′′ N. lat.; 117 52′50′′ W. long.,) 

recreational fishing for California 

scorpionfish may occur from shore to a 

boundary line approximating 50 fm (91 

m) during July-August), subject to the 

bag limits in paragraph (B) of this 

section.

(B) Bag limits, boat limits, hook limits. 

South of 40°10′ N. lat., in times and 

areas where the recreational season for 

California scorpionfish is open, and the 

bag limit is 5 California scorpionfish per 

day. California scorpionfish do not 

count against the 10 RCG Complex fish 

per day limit. Multi-day limits are 

authorized by a valid permit issued by 

California and must not exceed the daily 

limit multiplied by the number of days 

in the fishing trip.

(C) Size limits. California scorpionfish 

may be no smaller than 10 in (25 cm) 

total length.

(D) Dressing/Filleting. California 

scorpionfish fillets may be no smaller 

than 5 in (12.8 cm).

(iv) Lingcod. (A) Seasons. South of 

40°10′ N. lat., recreational fishing for 

lingcod is open July 1 through 

December 31. When recreational fishing 

for lingcod is open in the south, it is 

permitted only inside the 20–fm (37–m) 

depth contour, subject to the bag limits 

in paragraph (B) of this section.

(B) Bag limits, boat limits, hook limits. 

South of 40°10′ N. lat., in times and 

areas when the recreational season for 

lingcod is open, there is a limit of 2–

hooks and one line when fishing for 

lingcod, and the bag limit is 2 lingcod 

per day. Lingcod do not count against 

the 10 RCG Complex fish per day limit. 

Multi-day limits are authorized by a 

valid permit issued by California and 

must not exceed the daily limit 

multiplied by the number of days in the 

fishing trip.

(C) Size limits. Lingcod may be no 

smaller than 24 in (61 cm) total length.

(D) Dressing/Filleting. Lingcod fillets 

may be no smaller than 16 in. (41 cm) 

in length.

(iv) Sanddabs. South of 40°10′ N. lat., 

recreational fishing for sanddabs is 

permitted both shoreward and seaward 

of the 20 fm (37 m) depth contour (i.e., 

recreational fishing for sanddabs is 

permitted in all areas south of 40°10′ N. 

lat.). Recreational fishing for sanddabs is 

permitted seaward of the 20- fm (37–m) 

depth contour subject to a limit of up to 

12–hooks ‘‘Number 2’’ or smaller, which 

measure 11 mm (0.44 inches) point to 

shank, and up to 2 lb of weight per line. 

There is no bag limit, season, or size 

limit for sanddabs, however, it is 

prohibited to fillet sanddabs at sea.

V. Washington Coastal Tribal Fisheries

In 1994, the United States formally 

recognized that the four Washington 

coastal treaty Indian tribes (Makah, 

Quileute, Hoh, and Quinault) have 

treaty rights to fish for groundfish in the 

Pacific Ocean, and concluded that, in

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 985

general terms, the quantification of 

those rights is 50 percent of the 

harvestable surplus of groundfish that 

pass through the tribes’ usual and 

accustomed ocean fishing areas 

(described at 60 CFR 660.324).

A tribal allocation is subtracted from 

the species OY before limited entry and 

open access allocations are derived. The 

tribal fisheries for sablefish, black 

rockfish, and whiting are separate 

fisheries, and are not governed by the 

limited entry or open access regulations 

or allocations. The tribes regulate these 

fisheries so as not to exceed their 

allocations.

The tribal allocation for black rockfish 

is the same in 2003 as in 2002. Also 

similar to 2002, the tribal sablefish 

allocation is 10 percent of the total catch 

OY (650 mt), less 3 percent for 

estimated discard mortality, or 631 mt.

In 1999 through 2002, the tribal 

whiting allocation has been based on a 

methodology originally proposed by the 

Makah Tribe in 1998. The methodology 

is an abundance-based sliding scale that 

determines the tribal allocation based 

on the level of the overall U.S. OY, up 

to a maximum 17.5 percent tribal 

harvest ceiling at OY levels below 

145,000 mt. The tribes have proposed 

using the same methodology in 2003. In 

2003, applying the sliding scale 

methodology to a 148,200–mt overall 

OY results in a 25,000–mt tribal whiting 

allocation, which will be taken by the 

Makah Tribe. No other tribes have 

proposed to harvest whiting in 2003.

The sliding scale methodology used to 

determine the treaty Indian share of 

Pacific whiting is the subject of ongoing 

litigation. In United States v. 

Washington, Subproceeding 96–2, the 

Court held that the methodology is 

consistent with the Magnuson-Stevens 

Act, and is the best available scientific 

method to determine the appropriate 

allocation of whiting to the tribes. 

United States v. Washington, 143 

F.Supp.2d 1218 (W.D. Wash. 2001). 

This ruling was reaffirmed in July 2002. 

Midwater Trawlers Cooperative v. 

Daley, C96–1808R (W.D. Wash.) (Order 

Granting Defendants’ Motion to 

Supplement Record, July 17, 2002). 

Additional briefing will occur in this 

case. However, at this time NMFS 

remains under a Court Order in 

Subproceeding 96–2 to continue use of 

the methodology unless the Secretary 

finds just cause for its alteration or 

abandonment, the parties agree to a 

permissible alternative, or further order 

issues from the Court. Therefore NMFS 

is obliged to continue to use the 

methodology unless one of the events 

identified by the Court occurs. Since 

NMFS finds no reason to change the 

methodology, it has been used to 

determine the 2003 tribal allocation.

For some species on which the tribes 

have a modest harvest, no specific 

allocation has been determined. Rather 

than try to reserve specific allocations 

for the tribes, NMFS is establishing trip 

limits recommended by the tribes and 

the Council to accommodate modest 

tribal fisheries. For lingcod, all tribal 

fisheries are restricted to 300 lb (136 kg) 

per day and 900 lb (408 kg) per week 

cumulative limits. Tribal fisheries are 

expected to take about 5.2 mt of lingcod 

in 2003. For rockfish species, the 2003 

tribal longline and trawl fisheries will 

operate under trip and cumulative 

limits. Tribal fisheries will operate 

under a 300–lb (136–kg) per trip limit 

each for canary rockfish, thornyheads, 

and the minor rockfish species groups 

(nearshore, shelf, and slope), and under 

a 100–lb (45–kg) trip limit for yelloweye 

rockfish. A 300–lb (136 kg) canary 

rockfish trip limit is expected to result 

in landings of 2.3 mt in 2003. A 300–

lb (136–kg) thornyheads trip limit is 

expected to result in landings of 2.7 mt 

in 2003. Other rockfish limits are 

expected to result in the following 

landings levels: widow rockfish, 45 mt; 

yelloweye rockfish, 3.1 mt; yellowtail 

rockfish, 400 mt; minor nearshore 

rockfish, 2 mt; minor shelf rockfish 

excluding yelloweye, 4.5 mt; minor 

slope rockfish, 4 mt. Trace amounts (1 

mt) of POP and darkblotched rockfish 

may also be landed in tribal commercial 

fisheries.

The Assistant Administrator (AA) 

announces the following tribal 

allocations for 2003, including those 

that are the same as in 2002. Trip limits 

for certain species were recommended 

by the tribes and the Council and are 

specified here with the tribal 

allocations.

A. Sablefish

The tribal allocation is 631 mt, 10 

percent of the total catch OY, less 3 

percent estimated discard mortality.

B. Rockfish

(1) For the commercial harvest of 

black rockfish off Washington State, a 

harvest guideline of: 20,000 lb (9,072 kg) 

north of Cape Alava, WA (48°09′30′′ N. 

lat.) and 10,000 lb (4,536 kg) between 

Destruction Island, WA (47°40′00′′ N. 

lat.) and Leadbetter Point, WA 

(46°38′10′′ N. lat.).

(2) Thornyheads are subject to a 300–

lb (136–kg) trip limit.

(3) Canary rockfish are subject to a 

300–lb (136–kg) trip limit.

(4) Yelloweye rockfish are subject to 

a 100–lb (45–kg) trip limit.

(5) Yellowtail rockfish taken in the 

tribal mid-water trawl fisheries are 

subject to a cumulative limit of 30,000 

lb (13,608 kg) per 2–month period. 

Landings of widow rockfish must not 

exceed 10 percent of the weight of 

yellowtail rockfish landed in any twomonth period. These limits may be 

adjusted by an individual tribe inseason 

to minimize the incidental catch of 

canary rockfish and widow rockfish.

(6) Other rockfish, including minor 

nearshore, minor shelf, and minor slope 

rockfish groups are subject to a 300–lb 

(136–kg) trip limit per species or species 

group, or to the non-tribal limited entry 

trip limit for those species if those limits 

are less restrictive than 300 lb (136 kg) 

per trip.

(7) Rockfish taken during open 

competition tribal commercial fisheries 

for Pacific halibut will not be subject to 

trip limits.

C. Lingcod

Lingcod are subject to a 300–lb (136–

kg) daily trip limit and a 900–lb (408–

kg) weekly limit.

D. Pacific whiting

The tribal allocation is 25,000 mt.

Classification

These proposed specifications and 

management measures for 2003 are 

issued under the authority of, and are in 

accordance with, the Magnuson-Stevens 

Act, the FMP, and 50 CFR parts 600 and 

660 subpart G (the regulations 

implementing the FMP).

This proposed rule has been 

determined to be significant for 

purposes of Executive Order 12866.

Pursuant to Executive Order 13175, 

this rule was developed after 

meaningful consultation and 

collaboration with tribal officials from 

the area covered by the FMP. Under the 

Magnuson-Stevens Act at 16 U.S.C. 

1852(b)(5), one of the voting members of 

the Pacific Council must be a 

representative of an Indian tribe with 

federally recognized fishing rights from 

the area of the Council’s jurisdiction. In 

addition, regulations implementing the 

FMP establish a procedure by which the 

tribes with treaty fishing rights in the 

area covered by the FMP request new 

allocations or regulations specific to the 

tribes, in writing, before the first of the 

two fall groundfish meetings of the 

Council. The regulation at 50 CFR 

660.324(d) further states ‘‘the Secretary 

will develop tribal allocations and 

regulations under this paragraph in 

consultation with the affected tribe(s) 

and, insofar as possible, with tribal 

consensus.’’ The tribal management 

measures in this proposed rule have 

been developed following these 

procedures. The tribal representative on

986 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

the Council made a motion to adopt the 

tribal management measures, which was 

passed by the Council, and those 

management measures, which were 

developed and proposed by the tribes, 

are included in this proposed rule.

The Council prepared an initial 

regulatory flexibility analysis that 

describes the impact this proposed rule, 

if adopted, would have on small 

entities.

NMFS is proposing the 2003 annual 

specifications and management 

measures to allow West Coast 

commercial and recreational fisheries 

participants to fish the harvestable 

surplus of more abundant groundfish 

stocks, while also ensuring that those 

fisheries do not exceed the allowable 

catch levels intended to protect 

overfished and depleted stocks. The 

form of the specifications, in ABCs and 

OYS, follows the guidance of the 

Magnuson-Stevens Act, the National 

Standard Guidelines, and the FMP for 

protecting and conserving fish stocks. 

Annual management measures include 

trip and bag limits, size limits, time/area 

closures, gear restrictions, and other 

measures intended to allow year-round 

West Coast groundfish landings without 

compromising overfished species 

rebuilding measures.

Approximately 2,000 vessels 

participate in the West Coast groundfish 

fisheries. Of those, about 500 vessels are 

registered to limited entry permits 

issued for either trawl, longline, or pot 

gear. About 1,500 vessels land 

groundfish against open access limits 

while either directly targeting 

groundfish or taking groundfish 

incidentally in fisheries directed at nongroundfish species. All but 10–20 of 

those vessels are considered small 

businesses by the Small Business 

Administration. There are also about 

450 groundfish buyers on the West 

Coast, approximately 5 percent of which 

are responsible for about 80 percent of 

West Coast groundfish purchases. In the 

2001 recreational fisheries, there were 

106 Washington charter vessels engaged 

in salt water fishing outside of Puget 

Sound, 232 charter vessels active on the 

Oregon coast and 415 charter vessels 

active on the California coast.

The Council considered five 

alternative specifications and 

management measures regimes for 2003: 

the no action alternative, which would 

have implemented the 2002 regime for 

2003; the low OY alternative, which set 

harvest levels so that overfished stocks 

would have an 80 percent probability of 

rebuilding within Tmax; the high OY 

alternative, which set harvest levels so 

that overfished stocks would have a 50 

percent probability of rebuilding within 

Tmax; the Allocation Committee 

alternative, which set harvest levels 

intermediate to those of the low and 

high alternatives, but includes 

management through depth-based 

closures, and; the Council OY 

alternatives (preferred alternative) 

which was the same as the Allocation 

Committee alternative, except that it 

included a higher sablefish harvest 

north of Point Conception, CA and more 

restrictive recreational fishery 

management measures south of Cape 

Mendocino, CA. Each of these 

alternatives included both harvest levels 

(specifications) and management 

measures needed to achieve those 

harvest levels, with the most restrictive 

management measures corresponding to 

the lowest OYs.

Each of the alternatives analyzed by 

the Council was expected to have 

different overall effects on the economy. 

Among other factors, the draft EIS for 

this action reviewed alternatives other 

than the no action alternative for 

expected declines in revenue and 

income from 2001 levels. Declines were 

not measured from 2002 levels because 

complete data from 2002 is not yet 

available. The low OY alternative was 

expected to reduce commercial exvessel 

revenue by $60 million in 2003, reduce 

overall commercial harvest income by 

$274 million, and reduce recreational 

fishery income (mainly charter 

businesses) by $150 million. The high 

OY alternative was expected to reduce 

commercial exvessel revenue by $6 

million in 2003, reduce overall 

commercial harvest income by $16 

million, and reduce recreational fishery 

income by $1.3 million. The economic 

effects of the Allocation Committee 

alternative were analyzed both for 

management with depth-based 

regulatory measures and without those 

measures. The Allocation Committee 

alternative without depth-based 

regulatory measures was expected to 

reduce commercial exvessel revenue by 

$21 million in 2003, reduce overall 

commercial harvest income by $53 

million, and reduce recreational fishery 

income by $1.3 million. The Allocation 

Committee alternative with depth-based 

regulatory measures was expected to 

reduce commercial exvessel revenue by 

$15 million in 2003, reduce overall 

commercial harvest income by $40 

million, and reduce recreational fishery 

income by $1.3 million. The Council’s 

preferred alternative, which includes 

depth-based regulatory measures and a 

recreational fishery management regime 

designed to more strictly constrain 

harvest of overfished species, was 

expected to reduce commercial exvessel 

revenue by $13 million in 2003, reduce 

overall commercial harvest income by 

$35 million, and reduce recreational 

fishery income by $26 million. The 

Council’s preferred alternative meets the 

conservation requirements of the 

Magnuson-Stevens Act, while reducing 

to the extent possible the adverse 

economic impacts of these conservation 

measures on the fishing industries and 

associated communities.

Depth based management is 

particularly expected to both protect 

overfished species from harvest in areas 

where they commonly occur and allow 

fisheries greater access to more 

abundant stocks outside of the closed 

areas. Without depth-based 

management, harvest of abundant stocks 

would have been more severely 

restricted because there would have 

been no measures to prevent vessels 

from operating in areas where abundant 

and overfished stocks cooccur.

Recreational fisheries management 

measures in 2001 and 2002 were not 

adequately conservative and those 

fisheries exceeded their overfished 

species retention levels in both years. 

Thus, the recreational fisheries are more 

severely restricted under the preferred 

alternative than under the high OY 

alternative or under either of the 

Allocation Committee alternatives. 

While the preferred alternative is 

expected to result in greater income 

declines for businesses associated with 

recreational fishing, those declines 

reflect conservation measures expected 

to better protect overfished species. 

Estimates of declines in revenues and 

income in this section are from the draft 

EIS for this action and may change with 

the completion of the final EIS.

Revenues for many groundfish fishery 

participants under the preferred 

alternative are expected to decline in 

2003. These declines are mainly 

attributable to more restrictive 

management measures intended to 

protect overfished species. It is difficult 

to estimate exactly how this overall 

decline in landings and revenue will 

affect individual members of the 

groundfish fleet. However, the overall 

decline is significant enough to suggest 

that small businesses with a substantial 

portion of their incomes dependent on 

groundfish will be negatively affected 

by implementation of the 2003 proposed 

harvest levels. Overall, commercial 

vessels that target groundfish are 

expected to have a 21 percent decline in 

groundfish-related ex-vessel revenue 

and a 5 percent decline in total exvessel fishing revenue. The cumulative 

effect of 2003 management on the 

personal incomes of fishery participants 

is expected to be a $35 million decline.

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 987

Vessels and groundfish buyers that rely 

heavily on groundfish for their annual 

income, as opposed to other West Coast 

fish species, will be more affected by the 

2003 management regime than those 

with more diversified catch and harvest 

assemblages.

Most of the significant catch and 

effort reductions in the recreational fleet 

would occur off California south of 

40°10′ N. lat. Little change in overall 

recreational effort is expected in 

Washington or Oregon. For the West 

Coast recreational fleet, personal income 

is expected to decline by 10 percent 

overall, with a cumulative effect of a 

$26 million decline. These personal 

income values are a measure of the 

contribution of recreational fishing to 

businesses and local communities. 

Reduction in effort in California is 

expected to result in a reduction in 

revenue for businesses that cater to 

recreational fishers. Gross receipts for 

recreational groundfish activities will 

likely decline in proportion with the 

decline in number of angler trips, 

however, net profits may decline more 

given that certain costs will be fixed on 

an annual and per trip basis. Revenue 

declines from groundfish may be offset 

to the degree that charter vessels operate 

in other fisheries.

This rule does not propose any new 

reporting and recordkeeping 

requirements. Other regulations 

affecting the West Coast groundfish 

fisheries are primarily found at 50 CFR 

660.301–360. A copy of this analysis is 

available from the Council (see 

ADDRESSES).

NMFS issued Biological Opinions 

(BOs) under the Endangered Species Act 

on August 10, 1990, November 26, 1991, 

August 28, 1992, September 27, 1993, 

May 14, 1996, and December 15, 1999, 

pertaining to the effects of the 

groundfish fishery on chinook salmon 

(Puget Sound, Snake River spring/

summer, Snake River fall, upper 

Columbia River spring, lower Columbia 

River, upper Willamette River, 

Sacramento River winter, Central 

Valley, California coastal), coho salmon 

(Central California coastal, southern 

Oregon/northern California coastal, 

Oregon coastal), chum salmon (Hood 

Canal, Columbia River), sockeye salmon 

(Snake River, Ozette Lake), and 

steelhead (upper, middle and lower 

Columbia River, Snake River Basin, 

upper Willamette River, central 

California coast, California Central 

Valley, south-central California, 

northern California, and southern 

California). During the 2000 Pacific 

whiting season, the whiting fisheries 

exceeded the chinook bycatch amount 

specified in the Pacific whiting fishery’s 

Biological Opinion’e;s (whiting BO) 

(December 19, 1999) incidental catch 

statement estimate of 11,000 fish, by 

approximately 500 fish. In the 2001 

whiting season, however, the whiting 

fishery’s chinook bycatch was about 

7,000 fish, which approximates the 

long-term average. After reviewing data 

from, and management of, the 2000 and 

2001 whiting fisheries (including 

industry bycatch minimization 

measures), the status of the affected 

listed chinook, environmental baseline 

information, and the incidental catch 

statement from the 1999 whiting BO, 

NMFS determined in a letter dated 

April 25, 2002, that a re-initiation of the 

1999 whiting BO was not required. 

NMFS has concluded that 

implementation of the FMP for the 

Pacific Coast groundfish fishery is not 

expected 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. This action is within the 

scope of these consultations.

List of Subjects in 50 CFR Part 660

Administrative practice and 

procedure, American Samoa, Fisheries, 

Fishing, Guam, Hawaiian Natives, 

Indians, Northern Mariana Islands, 

Reporting and recordkeeping 

requirements.

Dated: December 20, 2002.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service.

For the reasons set out in the 

preamble, 50 CFR part 660 is proposed 

to be amended as follows:

PART 660—FISHERIES OFF WEST 

COAST STATES AND IN THE 

WESTERN PACIFIC

l. The authority citation for part 660 

continues to read as follows:

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

2. In § 660.302, the definition for 

‘‘Open access fishery’’ is revised to read 

as follows:

§ 660.302 Definitions.

* * * * *

Open access fishery means the fishery 

composed of vessels using open access 

gear fished pursuant to the harvest 

guidelines, quotas, and other 

management measures governing the 

open access fishery. Any commercial 

fishing vessels that does not have a 

limited entry permit and which lands 

groundfish in any commercial fishery is 

a participant in the open access fishery.

* * * * *

3. In § 660.304, the section heading 

and entire section are revised to read as 

follows:

§ 660.304 Management areas, including 

conservation areas, and commonly used 

geographic coordinates.

(a) Management areas—(1) 

Vancouver. (i) The northeastern 

boundary is that part of a line 

connecting the light on Tatoosh Island, 

WA, with the light on Bonilla Point on 

Vancouver Island, British Columbia (at 

48 deg.35′75′′ N. lat., 124 deg.43′00′′ W. 

long.) south of the International 

Boundary between the U.S. and Canada 

(at 48 deg.29′37.19′′ N. lat., 124 

deg.43′33.19′′ W. long.), and north of the 

point where that line intersects with the 

boundary of the U.S. territorial sea.

(ii) The northern and northwestern 

boundary is a line connecting the 

following coordinates in the order 

listed, which is the provisional 

international boundary of the EEZ as 

shown on NOAA/NOS Charts #18480 

and #18007:

Point N. lat. W. long. 

1 ............................................................................................................................................... 48 deg.29′37.19′′ 124 deg.43′33.19′′

2 ............................................................................................................................................... 48 deg.30′11′′ 124 deg.47′13′′

3 ............................................................................................................................................... 48 deg.30′22′′ 124 deg.50′21′′

4 ............................................................................................................................................... 48 deg.30′14′′ 124 deg.54′52′′

5 ............................................................................................................................................... 48 deg.29′57′′ 124 deg.59′14′′

6 ............................................................................................................................................... 48 deg.29′44′′ 125 deg.00′06′′

7 ............................................................................................................................................... 48 deg.28′09′′ 125 deg.05′47′′

8 ............................................................................................................................................... 48 deg.27′10′′ 125 deg.08′25′′

9 ............................................................................................................................................... 48 deg.26′47′′ 125 deg.09′12′′

10 ............................................................................................................................................. 48 deg.20′16′′ 125 deg.22′48′′

988 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

Point N. lat. W. long. 

11 ............................................................................................................................................. 48 deg.18′22′′ 125 deg.29′58′′

12 ............................................................................................................................................. 48 deg.11′05′′ 125 deg.53′48′′

13 ............................................................................................................................................. 47 deg.49′15′′ 126 deg.40′57′′

14 ............................................................................................................................................. 47 deg.36′47′′ 127 deg.41′23′′

15 ............................................................................................................................................. 47 deg.22′00′′ 127 deg.41′23′′

16 ............................................................................................................................................. 46 deg.42′05′′ 128 deg.51′56′′

17 ............................................................................................................................................. 46 deg.31′47′′ 129 deg.07′39′′

(iii) The southern limit is 47 deg.30′

N. lat.

(2) Columbia. (i) The northern limit is 

47 deg.30′ N. lat.

(ii) The southern limit is 43 deg.00′ N. 

lat.

(3) Eureka. (i) The northern limit is 43 

deg.00′ N. lat.

(ii) The southern limit is 40 deg.30′ N. 

lat.

(4) Monterey. (i) The northern limit is 

40 deg.30′ N. lat.

(ii) The southern limit is 36 deg.00′ N. 

lat.

(5) Conception. (i) The northern limit 

is 36 deg.00′ N. lat.

(ii) The southern limit is the U.S.–

Mexico International Boundary, which 

is a line connecting the following 

coordinates in the order listed:

Point N. lat. W. long. 

1 ............................................................................................................................................... 32 deg.35′22′′ 117 deg.27′49′′

2 ............................................................................................................................................... 32 deg.37′37′′ 117 deg.49′31′′

3 ............................................................................................................................................... 31 deg.07′58′′ 118 deg.36′18′′

4 ............................................................................................................................................... 30 deg.32′31′′ 121 deg.51′58′′

(b) Commonly used geographic 

coordinates—

(1) Cape Falcon, OR--45°46′ N. lat.

(2) Cape Lookout, OR--45°20′15′′ N. 

lat.

(3) Cape Blanco, OR--42°50′ N. lat.

(4) Cape Mendocino, CA--40°30′ N. 

lat.

(5) North/South management line--

40°10′ N. lat.

(6) Point Arena, CA--38°57′30′′ N. lat.

(7) Point Conception, CA--34°27’ N. 

lat.

(c) Cowcod Conservation Areas 

(CCAs). (1) The Western CCA is an area 

south of Point Conception that is bound 

by straight lines connecting all of the 

following points in the order listed:

33°50′ N. lat., 119°30′ W. long.;

33°50′ N. lat., 118°50′ W. long.;

32°20′ N. lat., 118°50′ W. long.;

32°20′ N. lat., 119°37′ W. long.;

33°00′ N. lat., 119°37′ W. long.;

33°00′ N. lat., 119°53′ W. long.;

33°33′ N. lat., 119°53′ W. long.;

33°33′ N. lat., 119°30′ W. long.;

and connecting back to 33°50′ N. lat., 

119°30′ W. long.

(2) The Eastern CCA is a smaller area 

west of San Diego that is bound by 

straight lines connecting all of the 

following points in the order listed:

32°42′ N. lat., 118°02′ W. long.;

32°42′ N. lat., 117°50′ W. long.;

32°36′42′′ N. lat., 117°50′ W. long.;

32°30′ N. lat., 117°53′30′′ W. long.;

32°30′ N. lat., 118°02′ W. long.;

and connecting back to 32°42′ N. lat., 

118°02′ W. long.

(d) Yelloweye Rockfish Conservation 

Area (YRCA). The YRCA is an C-shaped 

area off the northern Washington coast 

that is bound by straight lines 

connecting all of the following points in 

the order listed:

48°18′ N. lat.; 125°18′ W. long.;

48°18′ N. lat.; 124°59′ W. long.;

48°11′ N. lat.; 125°11′ W. long.;

48°11′ N. lat.; 124°59′ W. long.;

48°04′ N. lat.; 125°11′ W. long.;

48°04′ N. lat.; 124°59′ W. long.;

48°00′ N. lat.; 125°18′ W. long.;

48°00′ N. lat.; 124°59′ W. long.;

and connecting back to 48°18′ N. lat.; 

125°18′ W. long.

(e) International boundaries. (1) Any 

person fishing subject to this subpart is 

bound by the international boundaries 

described in this section, 

notwithstanding any dispute or 

negotiation between the United States 

and any neighboring country regarding 

their respective jurisdictions, until such 

time as new boundaries are established 

or recognized by the United States.

(2) The inner boundary of the fishery 

management area is a line coterminous 

with the seaward boundaries of the 

States of Washington, Oregon, and 

California (the ‘‘3-mile limit’’).

(3) The outer boundary of the fishery 

management area is a line drawn in 

such a manner that each point on it is 

200 nm from the baseline from which 

the territorial sea is measured, or is a 

provisional or permanent international 

boundary between the United States and 

Canada or Mexico.

4. In § 660.322, paragraphs (b)(5) and 

(b)(6) are revised to read as follows:

§ 660.322 Gear restrictions.

* * * * *

(b) Trawl gear. * * *

(5) Large and small footrope trawl 

gear. Large footrope trawl gear is bottom 

trawl gear, as specified at § 660.302, 

with a footrope diameter larger than 8 

inches (20 cm) (including rollers, 

bobbins or other material encircling or 

tied along the length of the footrope). 

Small footrope trawl gear is bottom 

trawl gear, as specified at § 660.302 and 

660.322(b), with a footrope diameter 8 

inches (20 cm) or smaller (including 

rollers, bobbins or other material 

encircling or tied along the length of the 

footrope). Chafing gear may be used 

only on the last 50 meshes of a small 

footrope trawl, measured from the 

terminal (closed) end of the codend. 

Other lines or ropes that run parallel to 

the footrope may not be augmented or 

modified to violate footrope size 

restrictions. For enforcement purposes, 

the footrope will be measured in a 

straight line from the outside edge to the 

opposite outside edge at the widest part 

on any individual part, including any 

individual disk, roller, bobbin, or any 

other device.

(6) Pelagic or ‘‘midwater’’ trawls. 

Pelagic trawl nets must have 

unprotected footropes at the trawl 

mouth, and must not have rollers, 

bobbins, tires, wheels, rubber discs, or 

any similar device anywhere in the net. 

The footrope of pelagic gear may not be 

enlarged by encircling it with chains or 

by any other means. Ropes or lines 

running parallel to the footrope of 

pelagic trawl gear must be bare and may 

not be suspended with chains or any 

other materials. Sweeplines, including 

the bottom leg of the bridle, must be

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 989

bare. For at least 20 ft (6.15 m) 

immediately behind the footrope or 

headrope, bare ropes or mesh of 16–inch 

(40.6–cm) minimum mesh size must 

completely encircle the net. A band of 

mesh (a ‘‘skirt’’) may encircle the net 

under transfer cables, lifting or splitting 

straps (chokers), but must be: Over 

riblines and restraining straps; the same 

mesh size and coincide knot-to-knot 

with the net to which it is attached; and 

no wider than 16 meshes.

* * * * *

5. In § 660.323, paragraph (b) is 

revised to read as follows:

§ 660.323 Catch restrictions.

* * * * *

(b) Routine management measures. In 

addition to the catch restrictions in this 

section, other catch restrictions that are 

likely to be adjusted on an annual or 

more frequent basis may be imposed 

and announced by a single notification 

in the Federal Register if they have been 

designated as routine through the twomeeting process described in PCGFMP. 

The following catch restrictions have 

been designated as routine:

(1) Commercial limited entry and 

open access fisheries —(i) Trip landing 

and frequency limits, size limits, all 

gear. Trip landing and frequency limits 

have been designated as routine for the 

following species or species groups: 

widow rockfish, canary rockfish, 

yellowtail rockfish, Pacific ocean perch, 

yelloweye rockfish, splitnose rockfish, 

bocaccio, cowcod, minor nearshore 

rockfish or shallow and deeper minor 

nearshore rockfish, shelf or minor shelf 

rockfish, and minor slope rockfish; 

Dover sole, sablefish, shortspine 

thornyheads, longspine thornyheads, 

and the ‘‘DTS complex,’’ which is 

composed of those species; petrale sole, 

rex sole, arrowtooth flounder, Pacific 

sanddabs, and the flatfish complex, 

which is composed of those species plus 

any other flatfish species listed at 

§ 660.302; Pacific whiting; lingcod; and 

‘‘other fish’’ as a complex consisting of 

all groundfish species listed at § 660.302 

and not otherwise listed as a distinct 

species or species group. Size limits 

have been designated as routine for 

sablefish and lingcod. Trip landing and 

frequency limits and size limits for 

species with those limits designated as 

routine may be imposed or adjusted on 

an annual or more frequent basis for the 

purpose of keeping landings within the 

harvest levels announced by NMFS, and 

for the other purposes given in 

paragraph (b)(1)(i)(A) and (B) of this 

section.

(A) Trip landing and frequency limits. 

To extend the fishing season; to 

minimize disruption of traditional 

fishing and marketing patterns; to 

reduce discards; to discourage target 

fishing while allowing small incidental 

catches to be landed; to protect 

overfished species; to allow small 

fisheries to operate outside the normal 

season; and, for the open access fishery 

only, to maintain landings at the 

historical proportions during the 1984–

88 window period.

(B) Size limits. To protect juvenile 

fish; to extend the fishing season.

(ii) Differential trip landing and 

frequency limits based on gear type, 

closed seasons. Trip landing and 

frequency limits that differ by gear type 

and closed seasons may be imposed or 

adjusted on an annual or more frequent 

basis for the purpose of rebuilding and 

protecting overfished or depleted stocks.

(2) Recreational fisheries all gear 

types. Routine management measures 

for all groundfish species, separately or 

in any combination, include bag limits, 

size limits, time/area closures, boat 

limits, hook limits, and dressing 

requirements. All routine management 

measures on recreational fisheries are 

intended to keep landings within the 

harvest levels announced by NMFS, to 

rebuild and protect overfished or 

depleted species, and to maintain 

consistency with State regulations, and 

for the other purposes set forth in this 

section.

(i) Bag limits. To spread the available 

catch over a large number of anglers; to 

protect and rebuild overfished species; 

to avoid waste.

(ii) Size limits. To protect juvenile 

fish; to protect and rebuild overfished 

species; to enhance the quality of the 

recreational fishing experience.

(iii) Season duration restrictions. To 

spread the available catch over a large 

number of anglers; to protect and 

rebuild overfished species; to avoid 

waste; to enhance the quality of the 

recreational fishing experience.

(3) All fisheries, all gear types depthbased management measures. Depthbased management measures, 

particularly the setting of closed areas 

known as Groundfish Conservation 

Areas may be imposed on any sector of 

the groundfish fleet using specific 

boundary lines that approximate depth 

contours with latitude/longitude 

waypoints. Depth-based management 

measures and the setting of closed areas 

may be used to protect and rebuild 

overfished stocks.

* * * * *

[FR Doc. 02–32756 Filed 12–31–02; 1:23 pm]

BILLING CODE 3510–22–S

Tuesday,

January 7, 2003

Part IV

Department of Labor

Pension and Welfare Benefits 

Administration 

29 CFR Part 2550

Fiduciary Responsibility Under the 

Employee Retirement Income Security Act 

of 1974; Automatic Rollovers; Proposed 

Rule

992 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

1Code sections 411(a)(11) and 417(e).

2 ‘‘IRA’’ means an individual retirement account 

under section 408(a) of the Code and an individual 

retirement annuity under section 408(b) of the 

Code. 3Code section 402(f).

4Rev. Rul. 2000–36, 2000–2 C.B. 140.

5See the Department’s information letter to Diana 

Orantes Ceresi (Feb. 19, 1998) regarding the factors 

a plan fiduciary should consider in selecting a 

service provider. Among other things, a responsible 

plan fiduciary must engage in an objective process 

designed to elicit information necessary to assess 

the qualifications of the service provider, the 

quality of the services offered and the 

reasonableness of the fees charged in light of the 

services provided. Such process should also be 

designed to avoid self-dealing, conflicts of interest 

or other improper influence.

6Section 401(a)(31)(B)(i) of the Code requires the 

transfer to be made to an ‘‘individual retirement 

plan,’’ which section 7701(a)(37) of the Code 

defines to mean an individual retirement account 

described in section 408(a) and an individual 

retirement annuity described in section 408(b), i.e.

‘‘IRA’.

DEPARTMENT OF LABOR

Pension and Welfare Benefits 

Administration 

29 CFR Part 2550 

RIN 1210–AA92 

Fiduciary Responsibility Under the 

Employee Retirement Income Security 

Act of 1974; Automatic Rollovers

AGENCY: Pension and Welfare Benefits 

Administration, Labor.

ACTION: Request for information.

SUMMARY: Section 657(c) of the 

Economic Growth and Tax Relief 

Reconciliation Act of 2001 directs the 

Department of Labor (Department) to 

develop, through regulations, safe 

harbors relating to the automatic 

rollovers of certain mandatory taxqualified plan distributions to 

individual retirement plans. Under 

these safe harbors, the designation of an 

institution and the investment of funds 

by a plan administrator to receive 

automatic rollovers in accordance with 

section 401(a)(31)(B) of the Internal 

Revenue Code (Code) would be deemed 

to satisfy the fiduciary requirements of 

section 404(a) of the Employee 

Retirement Income Security Act 

(ERISA). The purpose of this document 

is to request information from the public 

on issues relating to the development of 

these safe harbors and to assist in 

drafting regulations. The Department 

also seeks information on low-cost 

individual retirement plans for purposes 

of transfers under section 401(a)(31)(B) 

of the Code and for other uses that 

promote the preservation of assets for 

retirement income.

DATES: Written or electronic responses 

should be submitted to the Department 

of Labor on or before March 10, 2003.

RESPONSES: Written responses 

(preferably, at least three copies) should 

be addressed to the Office of 

Regulations and Interpretations, Pension 

and Welfare Benefits Administration, 

Room N–5669, U.S. Department of 

Labor, Washington, DC 20210, 

Attention: Automatic Rollovers RFI. All 

responses will be available for public 

inspection at the Public Disclosure 

Room, Pension and Welfare Benefits 

Administration, Room N–1513, U.S. 

Department of Labor, Washington, DC 

20210. Electronic responses should 

contain ‘‘Automatic Rollovers RFI’’ in 

the subject line and be addressed to eORI@pwba.dol.gov.

FOR FURTHER INFORMATION CONTACT:

Stacey A. Gillis or Katherine D. Lewis, 

Office of Regulations and 

Interpretations, Pension and Welfare 

Benefits Administration, Room N–5669, 

U.S. Department of Labor, Washington, 

DC 20210, telephone (202) 693–8510. 

This is not a toll-free number.

SUPPLEMENTARY INFORMATION: 

A. Background 

Tax-qualified retirement plans are 

permitted to make an immediate 

distribution to a separating participant 

without the participant’s consent if the 

present value of the participant’s vested 

accrued benefit does not exceed 

$5,000.1 Recipients may choose to roll 

the plan distribution (cash-out) into an 

IRA 2 or another qualified plan, or they 

may retain the cash-out as a taxable 

distribution. Prior to making a 

distribution, plan administrators are 

required to provide the participant with 

a written explanation of the Code 

provisions under which the participant 

may elect to have the distribution 

transferred directly to an IRA or another 

qualified plan, the provision requiring 

tax withholding if the distribution is not 

directly transferred and the provisions 

under which the distribution will not be 

taxed if the participant transfers the 

distribution to an IRA or another 

qualified plan within 60 days of 

receipt.3 In recent years, both plan 

sponsors and participants have 

indicated an interest in establishing 

rollover accounts as the default form of 

distribution option to encourage 

preservation of the amount distributed 

for retirement purposes and to mitigate 

the tax consequences to the participant 

with respect to the amount distributed.

In July 2000, the Internal Revenue 

Service (Service) issued Revenue Ruling 

2000–36 4 approving a plan amendment 

which permitted a direct rollover to an 

IRA as the default distribution option 

for an involuntary cash-out of a 

qualified plan distribution of an amount 

greater than $1,000 but less than or 

equal to $5,000, whenever a separating 

employee failed to make an affirmative 

election to either choose a direct 

rollover or take a taxable cash payment. 

The Service held that the plan 

amendment requiring the direct rollover 

to an IRA in these circumstances did not 

cause the plan to fail to satisfy the 

requirements of sections 401(a)(31) and 

411(d)(6) of the Code. The plan 

amendment also provided that in the 

case of a default direct rollover, the plan 

administrator would select an IRA 

trustee, custodian, or issuer that is 

unrelated to the employer, establish the 

IRA with that trustee, custodian, or 

issuer on behalf of any separating 

employee, and make the initial 

investment choices for the account.

In this ruling, the Department advised 

the Treasury and the Service that, under 

Title I of the ERISA, in the context of 

a default direct rollover described in the 

ruling, the participant will cease to be 

a participant covered under the plan 

within the meaning of 29 CFR 2510.3–

3(d)(2)(ii)(B), where the distribution 

constitutes the entire benefit rights of a 

participant, and the distributed assets 

will cease to be plan assets within the 

meaning of 29 CFR 2510.3–101. 

However, the Department also noted 

that the selection of an IRA trustee, 

custodian or issuer and IRA investment 

for purposes of a default direct rollover 

would constitute a fiduciary act subject 

to the general fiduciary standards and 

prohibited transaction provisions of 

ERISA.5 In addition, the Department 

stated that plan provisions governing 

the default direct rollover of 

distributions, including the participant’s 

ability to affirmatively opt out of the 

arrangement, must be described in the 

plan’s summary plan description 

furnished to participants and 

beneficiaries.

Subsequent to the issuance of 

Revenue Ruling 2000–36, section 657 of 

the Economic Growth and Tax Relief 

Reconciliation Act of 2001 (EGTRRA), 

Public Law 107–16, amended section 

401(a)(31) of the Code to require that, 

absent an affirmative election by the 

participant, certain mandatory 

distributions from a qualified retirement 

plan must be directly transferred to an 

individual retirement plan 6 of a 

designated trustee or issuer. 

Specifically, section 657(a) of EGTRRA 

added a new section 401(a)(31)(B)(i) to 

the Code to provide that, in the case of 

a trust that is part of an eligible plan, the 

trust will not constitute a qualified trust 

unless the plan of which the trust is a 

Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 993

7Conforming amendments to Code sections 

401(a)(31) and 402(f)(1) were also made by section 

657 of EGTRRA.

8For example, with respect to individual 

retirement accounts, 26 CFR 1.408–2(b)(2)(i) states 

that the trustee of an individual retirement account 

must be a bank (as defined in § 408(n) of the Code 

and regulations thereunder) or another person who 

demonstrates, in the manner described in paragraph 

(e) of the regulation, to the satisfaction of the 

Service, that the manner in which the trust will be 

administered will be consistent with § 408(e) of the 

Code and with the regulation. With respect to 

individual retirement annuities, 29 CFR § 1.408–3 

describes, among other things, requirements that 

must be met in order to maintain the tax-qualified 

status of such annuity arrangements.

part provides that if a mandatory 

distribution of more than $1,000 is 

made and the distributee (generally the 

participant) does not elect to have such 

distribution paid directly to an eligible 

retirement plan or receive the 

distribution directly, the plan 

administrator must transfer such 

distribution to an IRA of a designated 

trustee or issuer. Section 657(a)(1)(B)(ii) 

of EGTRRA defines an ‘‘eligible plan’’ as 

a plan which provides for an immediate 

distribution to a participant of any 

‘‘nonforfeitable accrued benefit for 

which the present value (as determined 

under section 411(a)(11) of the Code) 

does not exceed $5,000’’.

Additionally, section 657(a) of 

EGTRRA added a notice requirement in 

section 401(a)(31)(B)(i) of the Code 

requiring the plan administrator to 

notify the distributee in writing, either 

separately or as part of the notice 

required under section 402(f) of the 

Code, that the participant may transfer 

the distribution to another IRA.7

As part of these new EGTRRA 

provisions, section 657(c)(2)(A) directs 

the Department to issue final regulations 

providing safe harbors under which the 

plan administrator’s designation of an 

institution to receive the automatic 

rollover and the initial investment 

choice for the rolled-over funds would 

be deemed to satisfy the fiduciary 

requirements of section 404(a) of ERISA. 

Moreover, the provisions requiring all 

tax-qualified retirement plans to make 

automatic rollovers to IRAs the default 

option for involuntary distributions of 

certain defined amounts will not 

become effective until the Department 

issues the safe harbor regulations. 

Section 657(c)(2)(B) of EGTRRA also 

states that the Secretaries of Labor and 

Treasury may provide, and shall give 

consideration to providing, special relief 

with respect to the use of low-cost 

individual retirement plans for purposes 

of Code section 401(a)(31)(B) transfers 

and for other uses that promote the 

preservation of assets for retirement 

income. 

B. Issues Under Consideration 

Automatic Rollover Safe Harbors 

The Department is interested in 

comments regarding appropriate 

standards for the development of safe 

harbors under which the designation of 

an institution providing an IRA to 

receive the automatic rollover of funds 

and the initial investment choice for the 

rolled-over funds would be deemed to 

satisfy the fiduciary requirements of 

section 404(a) of ERISA. A list of some 

of the issues with respect to which 

comments are requested is included 

below. Responses on other issues 

pertinent to the Department’s 

consideration are also invited. 

As a framework for these comments, 

the Department notes that existing 

Treasury regulations describe 

fundamental requirements that must be 

satisfied in order for IRAs to maintain 

their tax classification under the

Code.8 Any standards made part of a 

safe harbor would supplement such 

requirements.

Request for Information 

1. Standards for Safe Harbor Entity:

What criteria should apply to the 

Department’s determination that an IRA 

custodian, trustee or issuer (IRA 

provider) qualifies as a safe harbor 

entity? Should the standards differ 

depending on whether the IRA is an 

account or an annuity? Should IRA 

providers who are existing plan service 

providers receive any special 

consideration if plan investments can be 

rolled directly in-kind without 

transaction fees for liquidating plan 

investments and purchasing IRA 

investments?

2. Standards for Safe Harbor Initial 

Investment: What criteria should apply 

to the Department’s determination that 

an initial investment qualifies as a safe 

harbor investment? Should 

consideration be given to including or 

excluding specific investment vehicles 

in the safe harbor? If mutual funds are 

included, should they be limited to 

passively invested mutual funds such as 

index funds or include all publicly 

traded mutual funds? Should the 

criteria include specific asset allocation 

standards? 

3. Establishment Costs: What is the 

range of establishment costs that IRA 

providers charge for the establishment 

or set-up of IRAs of the typical size of 

an automatic rollover and how do they 

vary? What factors should be considered 

in determining the reasonableness of 

these costs imposed by an IRA provider 

under the safe harbor? Should 

regulations clarify that establishment 

costs are either an expense of the 

distributing plan or a charge to the IRA 

funds of the account-holder? 

4. Termination Costs: What is the 

range of termination costs that IRA 

providers charge for the termination or 

closure of IRAs of the typical size of an 

automatic rollover and how do they 

vary? What factors should be considered 

in determining the reasonableness of 

these costs imposed by an IRA provider 

under the safe harbor? 

5. Maintenance Fees: What is the 

range of maintenance and 

administrative fees that IRA providers 

charge for maintaining and 

administering IRAs of the typical size of 

an automatic rollover and how do they 

vary? What factors should be considered 

in determining the reasonableness of 

these fees imposed by an IRA provider 

under the safe harbor? 

6. Investment Fees: What types of fees 

would be associated with the initial 

investment of the IRA? What types of 

fees would be associated with the 

ongoing investment vehicle of the IRA? 

What factors should be considered in 

determining the reasonableness of these 

fees imposed by an IRA provider under 

the safe harbor? Should the IRA 

principal be guaranteed with all 

investment fees, maintenance fees and 

establishment costs being charged to 

investment earnings? 

7. Surrender Charges: What is the 

range of surrender charges that 

investment vehicles for IRAs of the 

typical size of an automatic rollover are 

subject to upon surrender or 

redemption, how do they vary and what 

circumstances trigger their imposition? 

What factors should be considered in 

determining the reasonableness of these 

charges imposed by an IRA provider 

under the safe harbor? 

8. Transfers within One Year: Do IRA 

providers refund or waive in whole or 

part establishment costs, termination 

costs, maintenance fees or surrender 

charges for IRAs that are withdrawn or 

directly rolled over within one year of 

establishment by the account-holder? 

Should the Department consider refund 

or waiver features in determining 

whether an IRA provider or initial 

investment qualifies for safe harbor 

treatment? 

9. Prohibited Transaction Relief: Is 

there a need for prohibited transaction 

relief that would enable a plan sponsor, 

as the plan administrator, to select itself 

or an affiliate as the IRA provider, or to 

choose an initial investment in which it 

may have an interest? If relief is needed, 

what safeguards should be imposed 

with respect to such relief? 

10. Legal Impediments: What legal 

impediments are plan administrators

994 Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / Proposed Rules 

likely to encounter in establishing IRAs 

for automatic rollovers on behalf of 

separating employees? What legal 

impediments are financial institutions 

likely to encounter in designing and 

marketing IRAs for automatic rollovers? 

11. Disclosure: Should the regulation 

impose any additional disclosure 

requirements on safe harbor IRA 

providers? 

12. Low-Cost IRAs: Is there a need for 

special consideration of IRA providers 

who provide low-cost IRAs for 

automatic rollovers? What criteria 

should be used to demonstrate low-cost 

or the promotion of the preservation of 

assets for retirement income by IRA 

providers? What kinds of low-cost IRA 

products are available? 

13. Current Practices: How many 

qualified retirement plans currently 

have mandatory distribution provisions? 

Typically, what are those provisions? 

How many mandatory distributions 

occur annually and what is the form of 

distribution? What are the associated 

costs? 

14. EGTRRA Provisions: What 

additional administrative costs will 

compliance with the EGTRRA automatic 

rollover requirements impose on 

qualified retirement plans and the assets 

of plan participants? 

Impact on Small Entities 

In responding to the questions above, 

please address the anticipated annual 

impact of any proposals on small 

business and small plans (plans with 

fewer than 100 participants). 

All submitted responses will be made 

a part of the record of the proceeding 

referred to herein and will be available 

for public disclosure.

Signed at Washington, DC, this 2nd day of 

January 2003. 

Ann L. Combs, 

Assistant Secretary, Pension and Welfare 

Benefits Administration, Department of 

Labor.

[FR Doc. 03–281 Filed 1–6–03; 8:45 am] 

BILLING CODE 4510–29–P

i

Reader Aids Federal Register 

Vol. 68, No 4

Tuesday, January 7, 2003

CUSTOMER SERVICE AND INFORMATION 

Federal Register/Code of Federal Regulations 

General Information, indexes and other finding 

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202–741–6000

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FEDERAL REGISTER PAGES AND DATE, JANUARY 

1–254..................................... 2

255–458................................. 3

459–662................................. 6

663–994................................. 7

CFR PARTS AFFECTED DURING JANUARY 

At the end of each month, the Office of the Federal Register 

publishes separately a List of CFR Sections Affected (LSA), which 

lists parts and sections affected by documents published since 

the revision date of each title. 

3 CFR 

Executive orders: 

12543 (See Notice of 

January 2, 2003)..............661

12544 (See Notice of 

January 2, 2003)..............661

Administrative orders: 

Notices: 

Notice of January 2, 

2003 .................................661

5 CFR 

532...............................459, 460

7 CFR 

Proposed Rules: 

300.........................................69

8 CFR 

Proposed Rules: 

217.......................................292

231.......................................292

251.......................................292

9 CFR 

317.......................................460

381.......................................460

10 CFR 

72.........................................463

11 CFR 

100...............................404, 421

102.......................................421

104...............................404, 611

105.......................................404

108.......................................404

109...............................404, 421

110.......................................421

114.......................................421

14 CFR 

23.........................................1, 3

25.........................................255

39.......5, 10, 14, 16, 18, 23, 25, 

27, 28, 31, 35, 257, 471, 

473, 476, 479, 481, 483, 

485, 486, 488

61...........................................39

71...43, 44, 259, 260, 261, 262, 

263, 490

97.................................264, 491

Proposed Rules: 

39 .........71, 302, 305, 308, 311, 

315, 317, 320, 322, 324, 

516, 518

71.........................................328

15 CFR 

902.......................................204

17 CFR 

230.......................................188

240.......................................188

420.......................................402

Proposed Rules: 

210.......................................160

239.......................................160

249.......................................160

270.......................................160

274.......................................160

18 CFR 

Ch. 1 ......................................45

260.......................................266

357.......................................266

385.......................................266

24 CFR 

Proposed Rules: 

92.........................................648

570.......................................648

572.......................................648

574.......................................648

576.......................................648

582.......................................648

583.......................................648

585.......................................648

29 CFR 

Proposed Rules: 

2550.....................................992

30 CFR 

250.........................................45

Proposed Rules: 

938.......................................721

944.......................................521

31 CFR 

103.......................................493

33 CFR 

Proposed Rules: 

151.......................................523

39 CFR 

3001.......................................46

Proposed Rules: 

111.......................................530

40 CFR 

9...........................................848

50.........................................614

52.........................................663

62 ........................48, 50, 52, 53

82.........................................238

180 ......................269, 274, 283

710.......................................848

723.......................................848

Proposed Rules: 

52.........................................723

62.....................................76, 77

63 ............................77, 78, 329

261.......................................531

ii Federal Register / Vol. 68, No 4 / Tuesday, January 7, 2003 / Reader Aids 

281.......................................329

41 CFR 

Ch. 301................................196

301-10..................................493

43 CFR 

1860.....................................494

47 CFR 

73 ........................503, 504, 670

76.........................................670

Proposed Rules: 

Ch. 1............................723, 730

73.................................532, 533

48 CFR 

904.........................................55

952.........................................55

970.........................................55

49 CFR 

192.........................................56

195.........................................56

219.........................................57

571.......................................504

50 CFR 

635.......................................711

648 ..........................57, 60, 533

660.......................................908

679.......................................715

Proposed Rules: 

17.........................................331

660.......................................936

Federal Register / Vol. 68, No 4 / Tuesday, January 7, 2003 / Reader Aids iii

REMINDERS 

The items in this list were 

editorially compiled as an aid 

to Federal Register users. 

Inclusion or exclusion from 

this list has no legal 

significance.

RULES GOING INTO 

EFFECT JANUARY 7, 

2003

AGRICULTURE 

DEPARTMENT 

Animal and Plant Health 

Inspection Service 

Exportation and importation of 

animals and animal 

products: 

Canadian border ports; 

Blaine and Lyden, WA; 

removal as ports of entry; 

published 11-8-02

Exportation and importation of 

animals and animal 

byproducts: 

Canadian border ports; 

Blaine and Lynden, WA; 

removal as ports of entry; 

published 12-24-02

ENERGY DEPARTMENT 

Federal Energy Regulatory 

Commission 

Practice and procedure: 

Electronic registration 

(eRegistration); published 

8-12-02

ENVIRONMENTAL 

PROTECTION AGENCY 

Air pollution control; new 

motor vehicles and engines: 

Nonroad large spark ignition 

engines and recreational 

engines (marine and landbased); emissions control; 

published 11-8-02

Correction; published 12-

6-02

POSTAL RATE COMMISSION 

Practice and procedure: 

Electronic filing of 

documents over Internet; 

published 1-2-03

TRANSPORTATION 

DEPARTMENT 

Coast Guard 

Drawbridge operations: 

Iowa and Illinois; published 

12-31-02

TRANSPORTATION 

DEPARTMENT 

Federal Aviation 

Administration 

Airworthiness directives: 

Boeing; published 12-3-02

Cameron Balloons Ltd.; 

published 11-20-02

COMMENTS DUE NEXT 

WEEK 

AGRICULTURE 

DEPARTMENT 

Agricultural Marketing 

Service 

Perishable agricultural 

commodities: 

Fresh and frozen fruits and 

vegetables, coated or 

battered; comments due 

by 1-15-03; published 12-

16-02 [FR 02-31583] 

AMERICAN BATTLE 

MONUMENTS COMMISSION 

Freedom of Information Act; 

implementation; comments 

due by 1-14-03; published 

11-15-02 [FR 02-28900] 

COMMERCE DEPARTMENT 

National Oceanic and 

Atmospheric Administration 

Fishery conservation and 

management: 

Alaska; fisheries of 

Exclusive Economic 

Zone—

Gulf of Alaska groundfish; 

comments due by 1-13-

03; published 12-12-02 

[FR 02-31368] 

COMMERCE DEPARTMENT 

National Oceanic and 

Atmospheric Administration 

Fishery conservation and 

management: 

Caribbean, Gulf, and South 

Atlantic fisheries—

Gulf of Mexico and South 

Atlantic coastal 

migratory pelagic 

resources; comments 

due by 1-16-03; 

published 12-17-02 [FR 

02-31699] 

COMMODITY FUTURES 

TRADING COMMISSION 

Commodity pool operators and 

commodity trading advisors: 

Commodity pool operators; 

otherwise regulated 

persons excluded from 

term definition; comments 

due by 1-13-03; published 

12-18-02 [FR 02-31847] 

Requirement to register for 

CPOs of certain pools 

and CTAs advising such 

pools; exemption; 

comments due by 1-13-

03; published 11-13-02 

[FR 02-28820] 

DEFENSE DEPARTMENT 

Debts resulting from erroneous 

payments of pay and 

allowances; waiver; 

comments due by 1-13-03; 

published 11-14-02 [FR 02-

28728] 

Procedures; comments due 

by 1-13-03; published 11-

14-02 [FR 02-28735] 

Personnel and general claims 

and advance decision 

requests; settling and 

processing; comments due 

by 1-13-03; published 11-

14-02 [FR 02-28726] 

Procedures; comments due 

by 1-13-03; published 11-

14-02 [FR 02-28727] 

ENERGY DEPARTMENT 

Floodplain and wetland 

environmental review 

requirements; compliance; 

comments due by 1-17-03; 

published 11-18-02 [FR 02-

29071] 

ENVIRONMENTAL 

PROTECTION AGENCY 

Air quality implementation 

plans; approval and 

promulgation; various 

States; air quality planning 

purposes; designation of 

areas: 

California; comments due by 

1-16-03; published 12-17-

02 [FR 02-31679] 

Air quality implementation 

plans; approval and 

promulgation; various 

States: 

Alabama; comments due by 

1-13-03; published 12-12-

02 [FR 02-31236] 

Kentucky; comments due by 

1-17-03; published 12-18-

02 [FR 02-31667] 

Virginia; comments due by 

1-15-03; published 12-16-

02 [FR 02-31469] 

ENVIRONMENTAL 

PROTECTION AGENCY 

Air quality implementation 

plans; approval and 

promulgation; various 

States: 

Virginia; comments due by 

1-15-03; published 12-16-

02 [FR 02-31470] 

ENVIRONMENTAL 

PROTECTION AGENCY 

Hazardous waste program 

authorizations: 

New Jersey; comments due 

by 1-15-03; published 12-

16-02 [FR 02-31014] 

ENVIRONMENTAL 

PROTECTION AGENCY 

Hazardous waste program 

authorizations: 

New Jersey; comments due 

by 1-15-03; published 12-

16-02 [FR 02-31015] 

ENVIRONMENTAL 

PROTECTION AGENCY 

Water supply: 

National primary drinking 

water regulations—

Chemical and 

microbiological 

contaminants; analytical 

method approval; 

Colitag method; 

additional information; 

comments due by 1-17-

03; published 12-31-02 

[FR 02-32886] 

FEDERAL 

COMMUNICATIONS 

COMMISSION 

Common carrier services: 

International Settlements 

Policy reform and 

international settlement 

rates; comments due by 

1-14-03; published 12-17-

02 [FR 02-31604] 

Radio and television 

broadcasting: 

Broadcast and cable EEO 

rules and policies—

Part-time employee 

classification; comments 

due by 1-16-03; 

published 12-24-02 [FR 

02-32474] 

FEDERAL RESERVE 

SYSTEM 

Transactions between banks 

and their affiliates 

(Regulation W): 

Credit extension; limitation 

of member bank’s ability 

to buy from affiliate under 

exemption to 100% of 

capital stock and surplus; 

comments due by 1-13-

03; published 12-12-02 

[FR 02-30635] 

HEALTH AND HUMAN 

SERVICES DEPARTMENT 

Centers for Medicare & 

Medicaid Services 

Medicare: 

Claims appeal procedures; 

changes; comments due 

by 1-14-03; published 11-

15-02 [FR 02-28296] 

HEALTH AND HUMAN 

SERVICES DEPARTMENT 

Grants: 

National Institutes of Health 

center grants; comments 

due by 1-13-03; published 

11-12-02 [FR 02-28292] 

INTERIOR DEPARTMENT 

Fish and Wildlife Service 

Endangered and threatened 

species: 

Critical habitat 

designations—

Achyranthes mutica, etc. 

(47 plant species from 

Hawaii, HI); comments 

due by 1-17-03; 

published 12-18-02 [FR 

02-31876] 

Marine mammals: 

Incidental take during 

specified activities—

iv Federal Register / Vol. 68, No 4 / Tuesday, January 7, 2003 / Reader Aids 

Florida manatees; 

watercraft and 

watercraft access 

facilities; comments due 

by 1-13-03; published 

11-14-02 [FR 02-28607] 

LABOR DEPARTMENT 

Mine Safety and Health 

Administration 

Coal mine safety and health, 

and education and training: 

Emergency evacuations; 

emergency temporary 

standard; comments due 

by 1-13-03; published 12-

12-02 [FR 02-31358] 

NATIONAL AERONAUTICS 

AND SPACE 

ADMINISTRATION 

Acquisition regulations: 

Government property; 

heritage assets; 

comments due by 1-13-

03; published 11-12-02 

[FR 02-28084] 

NATIONAL AERONAUTICS 

AND SPACE 

ADMINISTRATION 

Acquisition regulations: 

Trade Agreements Act; 

exception for U.S.-made 

end products; comments 

due by 1-13-03; published 

11-12-02 [FR 02-28542] 

NUCLEAR REGULATORY 

COMMISSION 

Production and utilization 

facilities; domestic licensing: 

Light water reactor electric 

generating plants; 

voluntary fire protection 

requirements; comments 

due by 1-15-03; published 

11-1-02 [FR 02-27701] 

Rulemaking petitions: 

Christian, Lawrence T., et 

al.; comments due by 1-

15-03; published 11-1-02 

[FR 02-27861] 

Correction; comments due 

by 1-15-03; published 

11-7-02 [FR 02-28360] 

Leyse, Robert H.; comments 

due by 1-16-03; published 

12-2-02 [FR 02-30417] 

SECURITIES AND 

EXCHANGE COMMISSION 

Investment companies: 

Research and development 

companies; nonexclusive 

safe harbor from 

investment company 

definition; comments due 

by 1-15-03; published 12-

3-02 [FR 02-30663] 

Securities, etc.: 

Sarbarnes-Oxley Act of 

2002; implementation—

Auditor independence, 

requirements; comments 

due by 1-13-03; 

published 12-13-02 [FR 

02-30884] 

SOCIAL SECURITY 

ADMINISTRATION 

Organization and procedures: 

Federal claims collection; 

administrative wage 

garnishment; comments 

due by 1-14-03; published 

11-15-02 [FR 02-28856] 

Social security benefits and 

supplemental security 

income:: 

Claimant identification pilot 

projects; comments due 

by 1-14-03; published 11-

15-02 [FR 02-28957] 

STATE DEPARTMENT 

Exchange Visitor Program: 

Student and Exchange 

Visitor Information 

System; designated 

sponsors access to 

database; comments due 

by 1-13-03; published 12-

12-02 [FR 02-31367] 

TRANSPORTATION 

DEPARTMENT 

Coast Guard 

Anchorage regulations: 

Louisiana; comments due by 

1-13-03; published 11-12-

02 [FR 02-28680] 

Ports and waterways safety: 

Calvert Cliffs Nuclear Power 

Plant, MD; security zone; 

comments due by 1-16-

03; published 10-18-02 

[FR 02-26462] 

TRANSPORTATION 

DEPARTMENT 

Computer reservation systems, 

carrier-owned; comments 

due by 1-14-03; published 

11-15-02 [FR 02-28645] 

TRANSPORTATION 

DEPARTMENT 

Federal Aviation 

Administration 

Airports: 

Passenger facility charge 

rule; air carriers 

compensation; revisions; 

comments due by 1-13-

03; published 11-27-02 

[FR 02-30103] 

Airworthiness directives: 

de Havilland; comments due 

by 1-13-03; published 11-

8-02 [FR 02-28409] 

Aerospatiale; comments due 

by 1-13-03; published 12-

13-02 [FR 02-31471] 

Boeing; comments due by 

1-13-03; published 11-27-

02 [FR 02-30027] 

British Aerospace; 

comments due by 1-17-

03; published 12-10-02 

[FR 02-31129] 

de Havilland; comments due 

by 1-17-03; published 11-

12-02 [FR 02-28617] 

Eurocopter France; 

comments due by 1-17-

03; published 12-18-02 

[FR 02-31830] 

Piaggio Aero Industries 

S.p.A.; comments due by 

1-13-03; published 11-21-

02 [FR 02-29677] 

Pratt & Whitney; comments 

due by 1-14-03; published 

11-15-02 [FR 02-29002] 

Quality Aerospace, Inc.; 

comments due by 1-13-

03; published 11-8-02 [FR 

02-28407] 

Raytheon; comments due by 

1-16-03; published 12-2-

02 [FR 02-30346] 

Rolls-Royce plc; comments 

due by 1-14-03; published 

11-15-02 [FR 02-28954] 

TRANSPORTATION 

DEPARTMENT 

Federal Aviation 

Administration 

Airworthiness directives: 

Textron Lycoming; 

comments due by 1-13-

03; published 11-14-02 

[FR 02-29003] 

TRANSPORTATION 

DEPARTMENT 

Federal Aviation 

Administration 

Airworthiness standards: 

Special conditions—

Cessna Model 441 

airplanes; comments 

due by 1-17-03; 

published 12-18-02 [FR 

02-31882] 

TRANSPORTATION 

DEPARTMENT 

Federal Aviation 

Administration 

Class E airspace; comments 

due by 1-13-03; published 

11-29-02 [FR 02-29660] 

TRANSPORTATION 

DEPARTMENT 

Federal Motor Carrier Safety 

Administration 

Motor carrier safety standards: 

Intermodal container chassis 

and trailers; general 

inspection, repair, and 

maintenance 

requirements; negotiated 

rulemaking process; intent 

to consider; comments 

due by 1-13-03; published 

11-29-02 [FR 02-30102] 

TRANSPORTATION 

DEPARTMENT 

Research and Special 

Programs Administration 

Pipeline safety: 

Gas pipeline safety 

standards; regulatory 

review; comments due by 

1-13-03; published 11-13-

02 [FR 02-28240] 

TREASURY DEPARTMENT 

Alcohol, Tobacco and 

Firearms Bureau 

Firearms: 

Imported explosive materials 

and identification marking 

placement; comments due 

by 1-14-03; published 10-

16-02 [FR 02-26253] 

TREASURY DEPARTMENT 

Internal Revenue Service 

Income taxes: 

Redemptions taxable as 

dividends; comments due 

by 1-16-03; published 10-

18-02 [FR 02-26449]

LIST OF PUBLIC LAWS 

Note: The List of Public Laws 

for the second session of the 

107th Congress has been 

completed. It will resume 

when bills are enacted into 

public law during the next 

session of Congress. A 

cumulative List of Public Laws 

for the second session of the 

107th Congress will appear in 

the issue of January 31, 2003. 

Last List December 24, 2002

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