Federal Register / Vol. 60, No. 42 / Friday, March 3, 1995 / Proposed Rules 11947

action is contained in the Rules Docket.

A copy of it may be obtained by

contacting the Rules Docket at the

location provided under the caption

ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation

safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the

authority delegated to me by the

Administrator, the Federal Aviation

Administration proposes to amend part

39 of the Federal Aviation Regulations

(14 CFR part 39) as follows:

PART 39—AIRWORTHINESS

DIRECTIVES

1. The authority citation for part 39

continues to read as follows:

Authority: 49 U.S.C. App. 1354(a), 1421

and 1423; 49 U.S.C. 106(g); and 14 CFR

11.89.

§ 39.13 [Amended]

2. Section 39.13 is amended by

adding the following new airworthiness

directive:

Fokker: Docket 95–NM–05–AD.

Applicability: Model F28 Mark 0100 series

airplanes, serial numbers 11244 through

11261 inclusive, 11263, and 11268 through

11283 inclusive, certificated in any category.

Note 1: This AD applies to each airplane

identified in the preceding applicability

provision, regardless of whether it has been

modified, altered, or repaired in the area

subject to the requirements of this AD. For

airplanes that have been modified, altered, or

repaired so that the performance of the

requirements of this AD is affected, the

owner/operator must use the authority

provided in paragraph (c) to request approval

from the FAA. This approval may address

either no action, if the current configuration

eliminates the unsafe condition; or different

actions necessary to address the unsafe

condition described in this AD. Such a

request should include an assessment of the

effect of the changed configuration on the

unsafe condition addressed by this AD. In no

case does the presence of any modification,

alteration, or repair remove any airplane from

the applicability of this AD.

Compliance: Required as indicated, unless

accomplished previously.

To ensure proper operation of the normal

maximum detent for reverse thrust control,

accomplish the following:

(a) For airplanes on which Fokker Service

Bulletin SBF100–76–008, dated May 8, 1991,

has been accomplished: Within 1,500 flight

cycles after the effective date of this AD,

perform an inspection to determine the

adequacy of clearance between the normal

maximum (second) detent for the reverse

thrust control and the surrounding moving

parts and to detect chafing or damage of the

normal maximum detent, in accordance with

Part 1 of the Accomplishment Instructions of

Fokker Service Bulletin SBF100–76–010,

dated October 31, 1993.

(1) If any chafing or damage is found

(regardless of clearance), prior to further

flight, replace the normal maximum detent

with an improved normal maximum detent,

in accordance with Part 2 of the

Accomplishment Instructions of the service

bulletin

(2) If the clearance is found to be

inadequate, but no chafing or damage is

found, within 250 flight cycles following the

inspection required by paragraph (a) of this

AD, replace the normal maximum detent

with an improved normal maximum detent,

in accordance with Part 2 of the

Accomplishment Instructions of the service

bulletin.

(3) If the clearance is found to be adequate

and no damage or chafing is found, within

3,000 flight cycles following the inspection

required by pararaph (a) of this AD, replace

the detent with an improved normal

maximum detent, in accordance with Part 2

of the Accomplishment Instructions of the

service bulletin.

(b) For airplanes on which Fokker Service

Bulletin SBF100–76–008, dated May 8, 1991,

has not been accomplished: Within the next

500 flight cycles after the effective date of

this AD, replace the normal maximum detent

for reverse thrust control with an improved

normal maximum detent, in accordance with

Part 2 of the Accomplishment Instructions of

Fokker Service Bulletin SBF100–76–010,

October 31, 1993.

(c) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager,

Standardization Branch, ANM–113, FAA,

Transport Airplane Directorate. Operators

shall submit their requests through an

appropriate FAA Principal Maintenance

Inspector, who may add comments and then

send it to the Manager, Standardization

Branch, ANM–113.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Standardization Branch,

ANM–113.

(d) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the airplane to

a location where the requirements of this AD

can be accomplished.

Issued in Renton, Washington, on February

27, 1995.

Darrell M. Pederson,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 95–5242 Filed 3–2–95; 8:45 am]

BILLING CODE 4910–13–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 905

[Docket No. 950104002–5002–01; I.D.

061394C]

RIN 0648–AE40

Use in Enforcement Proceedings of

Information Collected by Voluntary

Fishery Data Collectors

AGENCY: National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule.

SUMMARY: The Secretary of Commerce

(Secretary), through NOAA, is

publishing proposed regulations that

would restrict the use of information

collected by voluntary fishery data

collectors (VFDC). These regulations

would limit the extent to which such

information could be used in civil and

criminal enforcement proceedings

conducted pursuant to the Magnuson

Fishery Conservation and Management

Act (Magnuson Act), the Endangered

Species Act (ESA), and the Marine

Mammal Protection Act (MMPA). In

promulgating these regulations, NOAA

seeks to encourage the use of VFDCs by

the fishing industry, while protecting

the necessary use of observer

information by law enforcement

personnel.

DATES: Comments must be submitted by

May 2, 1995.

ADDRESSES: Comments may be mailed to

the National Oceanic and Atmospheric

Administration, Office of General

Counsel, Enforcement and Litigation

Section, 8484 Georgia Avenue, 4th

Floor, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Joel

La Bissonniere, (301) 427–2202.

SUPPLEMENTARY INFORMATION:

Background

The Magnuson Act, 16 U.S.C. 1801, et

seq. and the MMPA, 16 U.S.C. 1361 et

seq. specifically authorize the stationing

of observers aboard fishing vessels.

Observers serve two separate and

essential purposes. First, observers

collect scientific information essential

to the effective management and

protection by the National Marine

Fisheries Service (NMFS) of ocean

fisheries and protected species. Second,

observers monitor compliance with

existing Federal laws. Information

collected by an observer that establishes

a violation of the Magnuson Act, the

MMPA or the ESA, 16 U.S.C. 1531 et
11948 Federal Register / Vol. 60, No. 42 / Friday, March 3, 1995 / Proposed Rules

seq. may be used to prosecute the owner

or operator of that vessel in a

subsequent civil or criminal

enforcement proceeding.

Most observer programs are

mandatory in nature. For example,

under the Magnuson Act, domestic

vessels participating in the groundfish

fishery of the Gulf of Alaska are

required to carry an observer if ordered

to do so. (See 50 CFR 672.27). Under the

MMPA, U.S. commercial vessels in the

eastern tropical Pacific yellowfin tuna

purse seine fishery must carry an

observer, (See 16 U.S.C.

1374(h)(2)(B)(viii)), as must any vessel

selected by NMFS while operating

pursuant to a special exemption permit

in a Category I fishery. (See 16 U.S.C.

1383a(b)(3)(B)). Under the ESA, NMFS

occasionally requires observers as a

condition of a section 7 incidental take

statement. (See 16 U.S.C. 1536(b)).

Pursuant to all three acts, however,

voluntary observer programs also have

been utilized. For example, under the

MMPA’s interim exemption program for

commercial fisheries, NMFS may, with

the consent of a vessel owner, station an

observer aboard a vessel that is not

fishing in a Category I fishery. (See 16

U.S.C. 1383a(e)(3)). Under this and

other programs, fishermen who are

under no legal obligation to do so, may

voluntarily agree to carry observers

selected by NMFS. Although most

observer programs implemented by

NMFS are mandatory in nature,

voluntary programs are widely used to

gather scientific information along the

northeastern and southeastern coasts of

the United States.

Concerns have arisen within the

fishing industry and NMFS as to

whether information collected by

voluntary observers should be used in

subsequent enforcement proceedings.

Many fear that fishermen will be

reluctant to carry voluntary observers if

the information collected by the

observer can be used to prosecute them.

Without the cooperation of the fishing

industry, the voluntary observer

program might deteriorate, depriving

NMFS of information that is essential to

living marine resource management and

protection. Conversely, others worry

that unduly restricting the use of such

information will undermine the ability

to effectively prosecute violations of

each statute.

In response to these concerns,

Congress enacted 16 U.S.C. 1853(f) of

the Magnuson Act. This amendment,

codified at section 303(f) of the

Magnuson Act, requires the issuance of

regulations that restrict, in civil and

criminal enforcement proceedings

conducted under the Magnuson Act,

MMPA, and ESA, the use of information

collected by VFDCs while aboard a

vessel for conservation and management

purposes.

These proposed regulations have been

prepared to satisfy this statutory

directive. They do so in a manner that

balances the competing concerns

associated with the use of information

collected by voluntary observers.

Specifically, the regulations would

encourage industry participation in

voluntary observer programs by limiting

the risk of civil or criminal prosecution

under the Magnuson Act, MMPA, and

ESA, based upon information collected

by a VFDC. At the same time, the

regulations would protect essential

enforcement activities by permitting the

use of such information in limited

circumstances.

Scope

These proposed regulations would

add a new part to title 15 of the Code

of Federal Regulations, and would apply

to the use of information collected by

VFDCs. Section 905.5 would define a

VFDC as an observer or sea sampler

whose presence aboard a vessel is not

required pursuant to any provision of

the Magnuson Act, MMPA, ESA or

supporting regulations. By definition,

these proposed regulations would only

apply when an observer is aboard a

vessel at the sole discretion of the owner

or operator.

These regulations would not

categorically prohibit the use of

information collected by VFDCs in

enforcement proceedings. Rather, the

regulations would restrict the use of

such information. Restricting the use of

information collected by a VFDC is

consistent with the plain language of the

statute, and strikes a balance between

separate and sometimes conflicting

goals of the Magnuson Act, MMPA, and

ESA: the management and protection of

species through the acquisition of

scientific information and through the

effective prosecution of prohibited

conduct.

These regulations would apply to any

enforcement proceeding initiated

pursuant to the Magnuson Act, MMPA,

or ESA. The term ‘‘enforcement

proceeding’’ is broadly defined to

encompass any judicial or

administrative action that is initiated for

the purpose of imposing any civil or

criminal penalty that is authorized by

the Magnuson Act, MMPA, or ESA.

These regulations would apply even if

the information collected relates to the

violation of a statute subject to this

proposed rule that is different from the

one giving rise to the VFDC’s presence

onboard a vessel. For example, assume

that a VFDC is stationed aboard a

fishing vessel pursuant to a voluntary

program authorized by the Magnuson

Act. These regulations would restrict

the use of information collected by the

VFDC in an enforcement proceeding

arising from a violation of the Magnuson

Act. The regulations, however, also

would restrict the use of information

collected by this same VFDC in an

enforcement proceeding arising from a

violation of the MMPA or ESA.

Information

Part 905 would restrict the use of

information collected by a VFDC in

enforcement proceedings conducted

under the Magnuson Act, MMPA, and

ESA. The term ‘‘information’’ would be

defined in § 905.2 to include all

observations, data, statistics,

photographs, film, or recordings

collected by a VFDC. Under this broad

definition, information may take the

form of recorded data or activities seen

or heard by the observer. This definition

is intended to encompass any type of

information, regardless of form.

The restrictions, however, would not

apply to independent evidence that is

derived from information collected by a

VFDC. In practice, evidence initially

collected by enforcement personnel

frequently leads to the discovery of

additional evidence. These regulations

would not restrict the use of additional

evidence acquired in this manner.

Absent this exception, prosecutors

might be denied use of relevant

evidence, wholly unrelated to the

purposes of part 905, simply because it

was acquired through information

collected by a VFDC.

For example, assume a VFDC

observed a fishing vessel land fish in

excess of the vessel’s authorized limit.

Under these proposed regulations, the

government could not rely upon the

VFDC’s observations in any subsequent

prosecution. Aware of these

observations, however, enforcement

personnel could obtain additional

evidence, such as landing slips, that

independently establish the violation.

These proposed regulations would not

restrict the use of the landing slips in

any subsequent prosecution.

Access to Information

Part 905 would restrict the use of

information collected by a VFDC in an

enforcement proceeding conducted

pursuant to the Magnuson Act, MMPA

or ESA. It would not restrict access to

this same information by any party to an

enforcement proceeding. Instead, access

to such information remains subject to

existing Federal statutes and rules. For

example, access to information collected
Federal Register / Vol. 60, No. 42 / Friday, March 3, 1995 / Proposed Rules 11949

by Federal agencies is subject to the

Freedom of Information Act and the

Privacy Act. Information collected by

NMFS pursuant to the Magnuson Act

and the MMPA may only be disclosed

consistent with the confidentiality

provisions of both statutes. Within

enforcement proceedings, access to

information is governed by discovery

provisions set forth in the Federal rules

of civil and criminal procedure, and

agency regulations that control

discovery. (See 15 CFR 904.240).

Use of Information

Under proposed § 905.4(a),

information collected by a VFDC may

not initially be introduced by the

government as evidence against any

consenting owner that is a party to an

enforcement proceeding. A ‘‘consenting

owner’’ is defined as the owner,

operator or crewmember of a vessel

carrying a VFDC.

This restriction, however, would not

apply to other parties. Under proposed

§ 905.4(b)(1), any other party to an

enforcement proceeding may introduce

such information. This exception

recognizes the fact that, in certain cases,

information collected by a VFDC may

establish a party’s innocence. Denying a

party the right to use such information

in a criminal proceeding might run

counter to a party’s right to compulsory

process under the Sixth Amendment of

the U.S. Constitution. While VFDCcollected information will ordinarily be

introduced to establish innocence, such

information may be introduced for any

reason by any party other than the

government, regardless of their status as

a plaintiff or defendant.

Once information collected by a

VFDC has been introduced, any party,

including the government, may

introduce any information collected by

a VFDC. (See § 905.4(b)(2)). In most

instances, parties will offer additional

information when necessary to clarify,

explain, or contradict information

previously introduced. Pursuant to

proposed § 905.4(b)(2), however, any

other information may be introduced

against any party for any purpose,

within the sound discretion of the court

or tribunal.

Exceptions

While the restrictions proposed in

part 905 are intended to apply to the

vast majority of enforcement

proceedings conducted under the

Magnuson Act, MMPA, and ESA,

exception is made for a few limited

categories of actions. Pursuant to

proposed § 905.5, the provisions of part

905 would not apply to enforcement

proceedings based upon: (1) The assault,

intimidation, or harassment of any

person; or (2) the impairment or

interference with the duties of a VFDC.

These regulations are intended to

promote voluntary observer programs by

reducing the risk of prosecution for

fishing-related violations, not improper

conduct directed against a VFDC.

Extending the restrictions of part 905 to

conduct of this nature would jeopardize

the safety of VFDCs and undermine the

quality of any data collected.

Classification

The Assistant General Counsel for

Legislation and Regulations of the

Department of Commerce has certified

to the Chief Counsel for Advocacy of the

Small Business Administration that this

proposed rule, if adopted, would not

have a significant economic effect on a

substantial number of small businesses.

This proposed rule is procedural in

nature, limiting the use of specific

information in enforcement

proceedings. As a result, a regulatory

flexibility analysis has not been

prepared.

This action has been determined to be

not significant for the purposes of E.O.

12866.

List of Subjects in 15 CFR Part 905

Fisheries, Statistics

Dated: February 21, 1995.

Terry D. Garcia,

General Counsel, National Oceanic and

Atmospheric Administration.

For the reasons set out in the

preamble, 15 CFR part 905 is proposed

to be added to read as follows:

PART 905—USE IN ENFORCEMENT

PROCEEDINGS OF INFORMATION

COLLECTED BY VOLUNTARY

FISHERY DATA COLLECTORS

Sec.

905.1 Scope.

905.2 Definitions.

905.3 Access to information.

905.4 Use of information.

905.5 Exceptions.

Authority: 16 U.S.C. 1853(f).

§ 905.1 Scope.

This part applies to the use, in

enforcement proceedings conducted

pursuant to the Magnuson Act, the

MMPA, and the ESA, of information

collected by voluntary fishery data

collectors.

§ 905.2 Definitions.

When used in this part:

Consenting owner means the owner,

operator, or crewmember of a vessel

carrying a voluntary fishery data

collector.

Enforcement proceeding means any

judicial or administrative trial or

hearing, initiated for the purpose of

imposing any civil or criminal penalty

authorized under the Magnuson Act,

MMPA, or ESA, including but not

limited to, any proceeding initiated to:

impose a monetary penalty; modify,

sanction, suspend or revoke a lease,

license or permit; secure forfeiture of

seized property; or incarcerate an

individual.

ESA means the Endangered Species

Act, as amended, 16 U.S.C. 1531 et seq.,

and implementing regulations.

Information means all observations,

data, statistics, photographs, film, or

recordings collected by a voluntary

fishery data collector for conservation

and management purposes, as defined

by the Magnuson Act, MMPA, or ESA,

while onboard the vessel of a consenting

owner.

Magnuson Act means the Magnuson

Fishery Conservation and Management

Act, as amended, 16 U.S.C. 1801 et seq.,

and implementing regulations.

MMPA means the Marine Mammal

Protection Act, as amended, 16 U.S.C.

1361 et seq., and implementing

regulations.

Secretary means the Secretary of

Commerce, the Secretary of the Interior,

their chosen designees, or any other

Federal agency authorized to enforce the

provisions of the Magnuson Act,

MMPA, or ESA.

Vessel means any vessel as defined at

16 U.S.C. 1802(31).

Voluntary fishery data collector

means:

(1) Any person, including an observer

or a sea sampler;

(2) Placed aboard a vessel by the

Secretary;

(3) For the purpose of collecting

information; and

(4) Whose presence aboard that vessel

is not required by the Secretary

pursuant to provisions of the Magnuson

Act, MMPA, or ESA, or their

implementing regulations.

§ 905.3 Access to information.

Information collected by a voluntary

fishery data collector:

(a) Is subject to disclosure to both the

Secretary and the public, to the extent

required or authorized by law; and

(b) Is subject to discovery by any party

to an enforcement proceeding, to the

extent required or authorized by law.

§ 905.4 Use of information.

(a) Except as provided for in

paragraph (b) of this section,

information collected by a voluntary

fishery data collector may not be

introduced by the Secretary as evidence
11950 Federal Register / Vol. 60, No. 42 / Friday, March 3, 1995 / Proposed Rules

against any consenting owner that is a

party to an enforcement proceeding.

(b) Provided that all applicable

evidentiary requirements are satisfied:

(1) Information collected by a

voluntary fishery data collector may be

introduced in an enforcement

proceeding by any party except the

Secretary;

(2) If information is introduced

pursuant to paragraph (b)(1) of this

section, all information collected by a

voluntary fishery data collector may be

introduced by any other party,

including the Secretary.

(c) Independent evidence derived

from information collected by a

voluntary fishery data collector may be

introduced by any party, including the

Secretary, in an enforcement

proceeding.

§ 905.5 Exceptions.

The provisions of this part shall not

apply in any enforcement proceeding

against a consenting owner that alleges

the actual or attempted:

(a) Assault, intimidation, or

harassment (including sexual

harassment) of any person; or

(b) Impairment or interference with

the duties of a voluntary fishery data

collector.

[FR Doc. 95–5221 Filed 3–2–95; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[IA–57–94]

RIN 1545–AT06

Cash Reporting by Court Clerks;

Hearing Cancellation

AGENCY: Internal Revenue Service (IRS),

Treasury.

ACTION: Cancellation of notice of public

hearing on proposed regulations.

SUMMARY: This document provides

notice of cancellation of a public

hearing on proposed regulations relating

to the information reporting

requirements of court clerks upon

receipt of more than $10,000 in cash as

bail for any individual charged with a

specified criminal offense.

DATES: The public hearing originally

scheduled for Monday, March 13, 1995,

beginning at 10 a.m. is cancelled.

FOR FURTHER INFORMATION CONTACT:

Carol Savage of the Regulations Unit,

Assistant Chief Counsel (Corporate),

(202) 622–8452 (not a toll-free number).

SUPPLEMENTARY INFORMATION: The

subject of the public hearing is proposed

regulations under section 6050I of the

Internal Revenue Code of 1986. A notice

of proposed rulemaking and public

hearing appearing in the Federal

Register for Thursday, December 15,

1994 (59 FR 64635), announced that the

public hearing on the proposed

regulations would be held on Monday,

March 13, 1995, beginning at 10 a.m., in

the Internal Revenue Service

Auditorium, Seventh Floor, 7400

Corridor, Internal Revenue Service

Building, 1111 Constitution Avenue,

N.W., Washington, D.C.

The public hearing scheduled for

Monday, March 13, 1995, is cancelled.

Cynthia E. Grigsby,

Chief, Regulations Unit, Assistant Chief

Counsel (Corporate).

[FR Doc. 95–5198 Filed 3–2–95; 8:45 am]

BILLING CODE 4830–01–P

26 CFR Part 1

[INTL–933–86]

RIN 1545–AL98

Computation of Foreign Taxes Deemed

Paid Under Section 902 Pursuant to a

Pooling Mechanism for Undistributed

Earnings and Foreign Taxes;

Correction

AGENCY: Internal Revenue Service (IRS),

Treasury.

ACTION: Correction to notice of proposed

rulemaking.

SUMMARY: This document contains

corrections to the notice of proposed

rulemaking [INTL–933–86] which was

published in the Federal Register for

Friday, January 6, 1995 (60 FR 2049).

The proposed regulations relate to the

computation of foreign taxes deemed

paid by a domestic corporate

shareholder owning at least 10 percent

of the voting stock of the foreign

corporation.

FOR FURTHER INFORMATION CONTACT:

Caren S. Shein (202) 622–3850, or

Kristine K. Schlaman (202) 622–3840

(not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

The proposed regulations that are the

subject of these corrections are under

section 902 of the Internal Revenue

Code.

Need for Correction

As published, the notice of proposed

rulemaking [INTL–933–86] contains

typographical errors that are in need of

correction.

Correction of Publication

Accordingly, the publication of the

notice of proposed rulemaking which is

the subject of FR Doc. 95–173, is

corrected as follows:

On pages 2056 and 2058, § 1.902–1 is

corrected by removing the formulas in

paragraphs (b)(2)(i), (b)(2)(ii) and

(d)(2)(i) and adding correctly revised

formulas at the end of paragraphs (b)(1),

(b)(2)(i), (b)(2)(ii) and (d)(2)(i) to read as

follows:

§ 1.902–1 Credit for domestic corporate

shareholder of a foreign corporation for

foreign income taxes paid by the foreign

corporation.

* * * * *

(b) * * * (1) * * *

Foreign income taxes deemed

paid by domestic shareholder

(or upper-tier corporation)

=

Post 1986 foreign income taxes

of first-tier corporation (or

lower-tier corporation)

×

Dividend paid to domestic shareholder (or upper-tier corporation) by first-tier corporation (or lower-tier corporation)

Post-1986 undistributed earnings of first-tier corporation (or

lower-tier corporation)

(2) * * * (i) * * *

Portion of dividend to a shareholder attributable to post-1986

undistributed earnings

= Post-1986 undistributed earnings ×

Dividend to shareholder

Total dividends paid to all shareholders

(ii) * * *