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Code · REGISTER · 2007-12-21 · SECURITIES AND EXCHANGE COMMISSION · Notices

Notices. Notice of Order to Show Cause (Order 2007-12-11), Docket DOT-OST-2006-25577

63,185 words·~287 min read·/register/2007/12/21/07-6153

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BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56974; File No. SR-Amex-2007-132] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing of Proposed Rule Change as Modified by Amendment No. 1 Thereto To Include Volume Executed by Remote Quoting Towards the Earning of Remote Quoting Rights 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 30, 2007, the American Stock Exchange LLC (“Amex” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange.
On December 13, 2007, Amex filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange, proposes to include the volume executed by specialists and registered options traders (“ROTs”) as a result of remote quoting towards the earning of remote quoting rights in the Exchange's remote registered options trader (“RROT”) program (the “RROT Program”).
The text of the proposed rule change is available at *http://www.amex.com,* at the Exchange's principal office, and at the Commission's Public Reference Room. 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 The Exchange is proposing to include the volume executed by specialists and ROTs as a result of remote quoting, towards the earning of remote quoting rights in the Exchange's RROT Program. The Exchange's RROT Program currently allows members or member organizations designated by the Exchange to be awarded remote quoting rights to enter bids and offers electronically from locations other than the trading crowd where the applicable options class is traded on the Exchange's physical trading floor. 3 ROTs and specialists are currently awarded remote quoting rights based on quantitative criteria set forth in Amex Rule 994-ANTE.
Specifically, specialists are awarded remote quoting rights based on Exchange floor volume executed, and their percentage of industry market share in the options which they specialize. ROTs are awarded remote quoting rights based solely on floor volume executed. 3 *See* Securities Exchange Act Release No. 53652 (April 13, 2006), 71 FR 20422 (April 20, 2006) (approving the Exchange's RROT Program). Currently, volume executed as a result of quoting remotely is not included in the calculation of remote quoting rights in Rule 994-ANTE.
However, since the implementation of the RROT Program in May of 2006, volume is increasingly executed as a result of remote quotes entered by ROTs and specialists. The Exchange believes it is appropriate to reward those ROTs and specialists for the volume they execute as a result of quoting remotely, by including such volume towards the earning of additional remote quoting rights. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with section 6(b) of the Act, 4 in general, and section 6(b)(5) of the Act, 5 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. 4 15 U.S.C. 78f(b). 5 15 U.S.C. 78f(b)(5).
B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange 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 purpose of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has neither solicited nor received written comments on 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 Amex 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 disproved. 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. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-Amex-2007-132 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-Amex-2007-132. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). 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, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal offices of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Amex-2007-132 and should be submitted on or before January 11, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 6 6 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-24801 Filed 12-20-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56971; File No. SR-CBOE-2007-106] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of Proposed Rule Change as Modified by Amendment No. 1 Relating to CBOE Rules Governing Doing Business With the Public December 14, 2007. I. Introduction Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”), 1 and Rule 19b-4 thereunder, 2 on September 5, 2007, Chicago Board Options Exchange, Incorporated (“CBOE” or the “Exchange”), filed with the Securities and Exchange Commission (the “Commission”) a proposed rule change relating to the Exchange's rules governing doing business with the public. On September 21, 2007, the Commission issued a release noticing the proposed rule change, which was published for comment in the **Federal Register** on September 27, 2007. 3 The comment period expired on October 18, 2007. The Commission received one comment letter in response to the proposed rule change. 4 On November 13, 2007, CBOE filed Amendment No. 1 to amend the proposed rule change and respond to the comment letter. 5 This order provides notice of the proposed rule change, as modified by Amendment No. 1, and approves the proposed rule change as amended on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 56492 (Sept. 21, 2007), 72 FR 54952 (Sept. 27, 2007). 4 *See* Letter to Nancy Morris, Secretary, Commission, from Melissa MacGregor, Vice President and Assistant General Counsel, Securities Industry and Financial Markets Association (Oct. 16, 2007) (“SIFMA Letter”). 5 Amendment No. 1 proposes revisions to CBOE Rule 9.2.02 to clarify the review of the acceptance of an options discretionary account must be performed by a Series 4 Registered Options Principal (“ROP”) and to CBOE Rule 9.21 to replace references to a Compliance Registered Options Principal (“CROP”) with references to a ROP. In addition, Amendment No. 1 responds to the SIFMA Letter. II. Description of the CBOE Proposal The Exchange proposes to amend certain rules that govern an Exchange member's conduct in doing business with the public. Specifically, the proposed rule change would require member organizations to integrate the responsibility for supervision of a member organization's public customer options business into its overall supervisory and compliance program. In addition, the Exchange proposes to amend certain rules to strengthen member organizations' supervisory procedures and internal controls as they relate to a member's public customer options business. A. Integration of Options Supervision The purpose of the proposed rule change is to create a supervisory structure for options that is similar to that required by New York Stock Exchange (“NYSE”) and National Association of Securities Dealers (“NASD”) rules. 6 The proposed rule change would eliminate the requirement that member organizations qualified to do a public customer business in options must designate a single person to act as Senior Registered Options Principal (“SROP”) for the member organization and that each such member organization designate a specific individual as a CROP. Instead, member organizations would be required to integrate the SROP and CROP functions into their overall supervisory and compliance programs. 6 *See* NYSE Rule 342 and NASD Rule 3010. On July 26, 2007, the Commission approved a proposed rule change filed by NASD to amend NASD's Certificate of Incorporation to reflect its name change to Financial Industry Regulatory Authority Inc., or FINRA, in connection with the consolidation of the member firm regulatory functions of NASD and NYSE Regulation, Inc. *See* Securities Exchange Act Release No. 56146 (July 26, 2007). The FINRA rulebook currently consists of both NASD Rules and certain NYSE Rules that FINRA has incorporated. *See* FINRA Rules, *http://www.finra.org/RulesRegulation/FINRARules/index.htm* (last visited Dec. 10, 2007). The SROP concept was first introduced by CBOE during the early years of the development of the listed options market. Previously, under CBOE rules, member organizations were required to designate one or more persons qualified as ROPs having supervisory responsibilities in respect to the member organization's options business. As the number of ROPs at larger member organizations began to increase, CBOE imposed an additional requirement that member organizations designate one of their ROPs as the SROP. This was intended to eliminate confusion as to where the compliance and supervisory responsibilities lay by centralizing in a single supervisory officer overall responsibility for the supervision of a member organization's options activities. 7 Subsequently, following the recommendation of the Commission's Options Study, CBOE and other options exchanges required member organizations to designate a CROP to be responsible for the member organization's overall compliance program in respect to its options activities. 8 The CROP may be the same person who is designated as SROP. 7 Report of the Special Study of the Options Market (“Options Study”), p. 316, n. 11 (December 22, 1978). 8 *Id* . at p. 335. Since the SROP and CROP requirements were first imposed, the supervisory function in respect to the options activities of most securities firms has been integrated into the matrix of supervisory and compliance functions in respect to the firms' other securities activities. According to CBOE, this not only reflects the maturity of the options market, but also recognizes the ways in which the uses of options themselves have become more integrated with other securities in the implementation of particular strategies. Thus, the current requirement for a separately designated senior supervisor in respect to all aspects of a member organization's options activities, rather than clarifying the allocation of supervisory responsibilities within the member organization, may have just the opposite effect by failing to take into account the way in which these responsibilities are actually assigned. In addition, according to CBOE, by permitting supervision of a member organization's options activities to be handled in the same manner as the supervision of its other securities activities as well as its futures activities, the proposed rule change ensures that supervisory responsibility over each segment of the member organization's business is assigned to the best qualified persons in the member organization, thereby enhancing the overall quality of supervision. The same holds true for the compliance function. For example, most member organizations have designated one person to have supervisory responsibility over the application of margin requirements and other matters pertaining to the extension of credit. The proposed rule change would enable a member organization to include within the scope of such a person's duties the supervision over the proper margining of options accounts, thereby assuring that the most qualified person is charged with this responsibility and at the same time eliminating any uncertainty that might now exist as to whether this responsibility lies with the senior credit supervisor or with the SROP. Similarly, the proposed rule change would allow a member organization to specifically designate one or more individuals as being responsible for approving a ROP's acceptance of discretionary accounts 9 and exceptions to a member organization's suitability standards for trading uncovered short options. 10 The proposed rule change would allow member organizations the flexibility to assign such responsibilities, which formerly rested with the SROP and/or CROP, to more than one ROP-qualified individual where the member organization believes it advantageous to do so to enhance its supervisory or compliance structure. Typically, a member organization may wish to divide these functions on the basis of geographic region or functional considerations. The proposed amendment to Rule 9.2 would clarify the qualification requirements for individuals designated as ROPs. 11 The proposed amendment to Rule 9.3 would specify the registration requirements for individuals who accept orders from non-broker-dealer customers. 12 9 *See* proposed Rule 9.10(a). 10 *See* proposed Rule 9.7(f)(3). 11 *See* proposed Rules 9.2.01 and 9.2.02. 12 *See* proposed Rule 9.3.01. The proposed rule change would require options discretionary accounts, the acceptance of which must be approved by a ROP-qualified individual (other than the ROP who accepted the account), to be supervised in the same manner as the supervision of other securities accounts that are handled on a discretionary basis. The proposed rule change would eliminate the requirement that discretionary options orders be approved on the day of entry by a ROP (with one exception, as described below). According to CBOE, this requirement predates the Options Study and is not consistent with the use of supervisory tools in computerized format or exception reports generated after the close of a trading day. No similar requirement exists for supervision of other securities accounts that are handled on a discretionary basis. 13 Discretionary orders must be reviewed in accordance with a member organization's written supervisory procedures. According to CBOE, the proposed rule change would ensure that supervisory responsibilities are assigned to specific ROP-qualified individuals, thereby enhancing the quality of supervision. 13 *See, e.g.* , NYSE Rule 408. The proposed rule change would revise Exchange Rule 9.10 by adding, as Interpretation and Policy .01, a requirement that any member organization that does not utilize computerized surveillance tools for the frequent and appropriate review of discretionary account activity must establish and implement procedures to require ROP-qualified individuals who have been designated to review discretionary accounts to approve and initial each discretionary order on the day entered. The Exchange believes that any member organization that does not utilize computerized surveillance tools to monitor discretionary account activity should continue to be required to perform the daily manual review of discretionary orders. Under the proposed rule change, options discretionary accounts would continue to receive frequent appropriate supervisory review by designated ROP-qualified individuals. Additionally, member organizations would continue to be required to designate ROP-qualified individuals to review and approve the acceptance of options discretionary accounts in order to determine whether the ROP accepting the account had a reasonable basis for believing that the customer was able to understand and bear the risks of the proposed strategies or transactions. According to CBOE, this requirement would provide an additional level of supervisory audit over options discretionary accounts that does not exist for other securities discretionary accounts. In addition, the proposed rule change would require that each member organization submit to the Exchange a written report by April 1 of each year that details the member organization's supervision and compliance effort, including its options compliance program, during the preceding year and reports on the adequacy of the member organization's ongoing compliance processes and procedures. 14 14 *See* proposed Rule 9.8(g), which is modeled after NYSE Rule 342.30. Proposed Rule 9.8(h) would require that each member organization submit, by April 1 of each year, a copy of the Rule 9.8(g) annual report to one or more of its control persons or, if the member organization has no control person, to the audit committee of its board of directors or its equivalent committee or group. 15 15 Proposed Rule 9.8(h) is modeled after NYSE Rule 354. Proposed Rule 9.8(g) would provide that a member organization that specifically includes its options compliance program in a report that complies with substantially similar requirements of NYSE and NASD rules will be deemed to have satisfied the requirements of Rules 9.8(g) and 9.8(h). Additionally, where appropriate, the proposed rule change would delete references to SROP and CROP in Exchange Rules 3.6A and 26.10. 16 16 For example, the proposed rule change, as amended, replaces references to CROP in Rule 9.21 with references to ROP. Although the proposed rule change would eliminate entirely the positions and titles of the SROP and CROP, member organizations would still be required to designate a single general partner or executive officer to assume overall authority and responsibility for internal supervision, control of the member organization and compliance with securities laws and regulations. 17 Member organizations would also be required to designate specific qualified individuals as having supervisory or compliance responsibilities over each aspect of the member organization's options activities and to set forth the names and titles of these individuals in their written supervisory procedures. 18 This is consistent with the integration of options supervision into the overall supervisory and compliance structure of a member organization. In connection with the approval of the proposed rule change, the Exchange intends to review member organizations' written supervisory and compliance procedures in the course of the Exchange's routine examination of member organizations to ensure that supervisory and compliance responsibilities are adequately defined. 17 *See* proposed Rule 9.8(a). 18 *See* proposed Rule 9.8.01. The Exchange believes that the proposed rule change recognizes that options are no longer in their infancy, have become more integrated with other securities in the implementation of particular strategies, and thus should not continue to be regulated as though they are a new and experimental product. The Exchange believes that the proposed rule change is appropriate and does not materially alter the supervisory operations of member organizations. The Exchange believes the supervisory and compliance structure in place for non-options products at most member organizations is not materially different from the structure in place for options. B. Supervisory Procedures and Internal Controls The Exchange also proposes to amend certain rules to strengthen member and member organizations' supervisory procedures and internal controls as they relate to a member's public customer options business. The proposed rule changes described below are modeled after NYSE and NASD rules approved by the Commission in 2004. 19 The Exchange believes the following proposal to strengthen member supervisory procedures and internal controls is appropriate and consistent with the preceding proposal to integrate options and non-options sales practice supervision and compliance functions. 19 *See* Securities Exchange Act Release No. 49882 (June 17, 2004), 69 FR 35108 (June 23, 2004) (SR-NYSE-2002-36) (Approval Order), and Securities Exchange Act Release No. 49883 (June 17, 2004), 69 FR 35092 (June 23, 2004) (SR-NASD-2002-162) (Approval Order). The proposed revisions to Exchange Rule 9.8(a)(3) require the development and implementation of written policies and procedures reasonably designed to supervise sales managers and other supervisory personnel who service customer options accounts (i.e., who act in the capacity of a registered representative). 20 This requirement applies to branch office managers, sales managers, regional/district sales managers, or any person performing a similar supervisory function. Such policies and procedures are expected to encompass all options sales-related activities. Proposed Rule 9.8(a)(3)(i) would require that supervisory reviews of producing sales managers be conducted by a qualified ROP who is either senior to, or otherwise “independent of,” the producing manager under review. 21 This provision is intended to ensure that all options sales activity of a producing manager is monitored for compliance with applicable regulatory requirements by persons who do not have a personal interest in such activity. 20 Proposed Rule 9.8(a)(3) is modeled after NYSE Rule 342.19. 21 An “otherwise independent” person is defined in proposed Rule 9.8(a)(3)(i) as one who: may not report either directly or indirectly to the producing manager under review; must be situated in an office other than the office of the producing manager; must not otherwise have supervisory responsibility over the activity being reviewed; and must alternate such review responsibility with another qualified person every two years or less. Further, if a person designated to review a producing manager receives an override or other income derived from that producing manager's customer activity that represents more than 10% of the designated person's gross income derived from the member organization over the course of a rolling twelve-month period, the member organization must establish alternative senior or otherwise independent supervision of that producing manager to be conducted by a qualified ROP other than the designated person receiving the income. Proposed Rule 9.8(a)(3)(ii) would provide a limited exception for members so limited in size and resources that there is no qualified person senior to, or otherwise independent of, the producing manager to conduct the review. In this case, the reviews may be conducted by a qualified ROP to the extent practicable. Under proposed Rule 9.8(a)(3)(iii), a member relying on the limited size and resources exception would be required to document the factors used to determine that compliance with each of the “senior” or “otherwise independent” standards of Rule 9.8(a)(3)(i) is not possible, and that the required supervisory systems and procedures in place with respect to any producing manager comply with the provisions of Rule 9.8(a)(3)(i) to the extent practicable. Proposed paragraph (a)(3)(iv) of Rule 9.8 would provide that a member organization that complies with requirements of NYSE or NASD rules that are substantially similar to the requirements in Rules 9.8(a)(3)(i), (a)(3)(ii) and (a)(3)(iii) will be deemed to have met such requirements. Proposed Rule 9.8(c)(i) would require member organizations to develop and maintain adequate controls over each of their business activities. The proposed rule further would require that such controls include the establishment of procedures to independently verify and test the supervisory systems and procedures for those business activities. Member organizations are required to include in the annual report prepared pursuant to Rule 9.8(g) a review of the member organization's efforts in this regard, including a summary of the tests conducted and significant exceptions identified. The Exchange believes proposed Rule 9.8(c)(i) would enhance the quality of member organizations' supervision. 22 Proposed paragraph (c)(ii) of Rule 9.8 would provide that a member organization that complies with requirements of NYSE or NASD rules that are substantially similar to the requirements in Rule 9.8(c)(i) will be deemed to have met such requirements. 22 Proposed Rule 9.8(c)(i) is modeled after NYSE Rule 342.23. Proposed Rule 9.8(d) would establish requirements for branch office inspections similar to the requirements of NYSE Rule 342.24. Specifically, proposed Rule 9.8(d) would require a member organization to inspect each supervisory branch office at least annually and each non-supervisory branch office at least once every three years. 23 The proposed rule further would require that persons who conduct a member organization's annual branch office inspection must be independent of the direct supervision or control of the branch office (i.e., not the branch office manager, or any person who directly or indirectly reports to such manager, or any person to whom such manager directly reports). The Exchange believes that requiring branch office inspections be conducted by someone who has no significant financial interest in the success of a branch office should lead to more objective and vigorous inspections. 23 Proposed Rules 9.8(d)(1)(i) and
(ii)would provide members with two exceptions from the annual branch office inspection requirement: a member may demonstrate to the satisfaction of the Exchange that other arrangements may satisfy the Rule's requirements for a particular branch office, or based upon a member organization's written policies and procedures providing for a systematic risk-based surveillance system, the member organization submits a proposal to the Exchange and receives, in writing, an exemption from this requirement pursuant to Rule 9.8(e). Under proposed Rule 9.8(e), any member organization seeking an exemption, pursuant to Rule 9.8(d)(1)(ii), from the annual branch office inspection requirement would be required to submit to the Exchange written policies and procedures for systematic risk-based surveillance of its branch offices, as defined in Rule 9.8(e). Proposed Rule 9.8(f) would require that annual branch office inspection programs include, at a minimum, testing and verification of specified internal controls. 24 Proposed paragraph (d)(3) of Rule 9.8 would provide that a member organization that complies with requirements of NYSE or NASD rules that are substantially similar to the requirements in Rules 9.8(d),
(e)and
(f)will be deemed to have met such requirements. 24 Proposed Rules 9.8(e) and
(f)are modeled after NYSE Rules 342.25 and 342.26. In conjunction with the proposed changes to Rules 9.8(d),
(e)and (f), the Exchange proposes to amend Rule 9.6 to define “branch office” in a way that is substantially similar to the definition of branch office in NYSE Rule 342.10. Proposed Rule 9.8(g)(4) would require a member organization to designate a Chief Compliance Officer (“CCO”). 25 Proposed Rule 9.8(g)(5) would require each member organization's chief executive officer (“CEO”), or equivalent, to certify annually that the member organization has in place processes to:
(1)Establish and maintain policies and procedures reasonably designed to achieve compliance with applicable Exchange rules and federal securities laws and regulations;
(2)modify such policies and procedures as business, regulatory, and legislative changes and events dictate; and
(3)test the effectiveness of such policies and procedures on a periodic basis, the timing of which is reasonably designed to ensure continuing compliance with Exchange rules and federal securities laws and regulations. 25 The proposed rule change would revise Rule 3.6A(b) to add Chief Compliance Officer as a new associated person status under Chapter 9 of Exchange Rules. Proposed Rule 9.8(g)(5) further would require the CEO to attest that the CEO has conducted one or more meetings with the CCO in the preceding 12 months to discuss the compliance processes in proposed Rule 9.8(g)(5)(i), that the CEO has consulted with the CCO and other officers to the extent necessary to attest to the statements in the certification, and the compliance processes are evidenced in a report, reviewed by the CEO, CCO, and such other officers as the member organization deems necessary to make the certification, that is provided to the member organization's board of directors and audit committee (if such committee exists). 26 26 Proposed Rule 9.8(g)(5) is modeled after NASD Rule 3013 and NYSE Rule 342.30(e). Under proposed Rule 9.8(b)(2), a member, upon a customer's written instructions, may hold mail for a customer who will not be at his or her usual address for no longer than two months if the customer is on vacation or traveling, or three months if the customer is going abroad. This provision helps ensure that members that hold mail for customers who are away from their usual addresses, do so only pursuant to the customer's written instructions and for a specified, relatively short period of time. 27 27 Proposed Rule 9.8(b)(2) is modeled after NASD Rule 3110(i). Proposed Rule 9.8(b)(3) would require that, before a customer options order is executed, the account name or designation must be placed upon the memorandum for each transaction. In addition, only a qualified ROP may approve any changes in account names or designations. The ROP also must document the essential facts relied upon in approving the changes and maintain the record in a central location. A member is required to preserve any account designation change documentation for a period of not less than three years, with the documentation preserved for the first two years in an easily accessible place, as the term “easily accessible place” is used in SEC Rule 17a-4. The Exchange believes the proposed rule would help to protect account name and designation information from possible fraudulent activity. 28 28 Proposed Rule 9.8(b)(3) is modeled after NASD Rule 3110(j). Rule 9.10(d) allows member organizations to exercise time and price discretion on orders for the purchase or sale of a definite number of options contracts in a specified security. The Exchange proposes to amend Rule 9.10(d) to limit the duration of this discretionary authority to the day it is granted, absent written authorization to the contrary. In addition, the proposed rule would require any exercise of time and price discretion to be reflected on the customer order ticket. The proposed one-day limitation would not apply to time and price discretion exercised for orders effected with or for an institutional account 29 pursuant to valid Good-Till-Cancelled instructions issued on a “not held” basis. The Exchange believes that investors will receive greater protection by clarifying the time such discretionary orders remain pending. 30 29 “Institutional account” is defined in proposed Rule 9.10(d) as “the account of:
(i)a bank, savings and loan association, insurance company, or registered investment company;
(ii)an investment adviser registered either with the Securities and Exchange Commission under Section 203 of the Investment Advisers Act of 1940 or with a state securities commission (or any agency or office performing like functions); or
(iii)any other entity (whether a natural person, corporation, partnership, trust or otherwise) with total assets of at least $50 million.” 30 Proposed Rule 9.10(d) is modeled after NASD Rule 2510(d)(1). III. Summary of Comment Received and CBOE Response The Commission received one comment on the proposal which generally supported the proposed rule change while raising issues with respect to certain aspects of the proposed rule change. First, the commenter requested that CBOE clarify how the proposed rule change would affect compliance with CBOE Rule 9.21, which requires CROP approval for options-related communications with the public. 31 Second, the commenter suggested that CBOE allow a Branch Office Manager with a Series 8 or Series 9/10 license to approve discretionary options accounts, instead of requiring approval by a Series 4 Registered Options Principal. 32 Third, the commenter urged NYSE, American Stock Exchange and FINRA to adopt changes similar to those included in the CBOE proposal and questioned the compatibility of the proposed changes with other self-regulatory organizations' rules unless similar changes are adopted. 33 31 *See* SIFMA Letter. 32 *See id.* 33 *See id.* In Amendment No. 1, CBOE responded to the issues raised by the commenter. 34 With respect to the first issue regarding CROP approval under CBOE Rule 9.21, CBOE proposed to amend the rule to permit a ROP designated by the member or member organization's written supervisory procedures to perform such functions. With respect to the second issue regarding discretionary options accounts, CBOE proposed to amend proposed Rule 9.2.02 to clarify that the review of the acceptance of a options discretionary account must be performed by a Series 4 qualified ROP. However, members would be free to assign the function of accepting options discretionary accounts to individuals who are Series 9/10 qualified ROPs. With respect to the third issue dealing with rules of other self-regulatory organizations, CBOE stated that comments concerning changes to rules administered by other self-regulatory organizations were outside the scope of the proposed rule change. 34 The text of Amendment No. 1 is available at CBOE, the Commission's Public Reference Room and *http://www.cboe.org/legal.* IV. Discussion and Commission Findings After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder. 35 In particular, the Commission finds the proposed rule change, as amended, would integrate the supervision and compliance functions relating to member organizations' public customer options activities into the overall supervisory structure of a member organization, thereby eliminating any uncertainty over where supervisory responsibility lies. In addition, the proposed rule change would foster the strengthening of members' and member organizations' internal controls and supervisory systems. As such, the Commission finds the proposal to be consistent with and further the objectives of section 6(b)(5) of the Act, 36 in that it is designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts and practices, and in general, to protect investors and the public interest. 35 In approving this rule change, as amended, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 36 15 U.S.C. 78f(b)(5). The Commission also finds good cause for approving Amendment No. 1 to the proposed rule change prior to the 30th day after its publication in the **Federal Register** . Amendment No. 1 clarifies the operation of the proposed rule change in response to a comment. Amendment No. 1 does not contain major modifications and these modifications would not appreciably affect the protection to investors provided by the proposed rule change as published in the **Federal Register** . The Commission finds that it is in the public interest to approve the proposed rule change as soon as possible to expedite its implementation. Accordingly, the Commission believes good cause exists, consistent with sections 6(b)(5) and 19(b) of the Act to approve Amendment No. 1 to the proposed rule change on an accelerated basis. V. Solicitation of Comments Concerning Amendment No. 1 Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 1, including whether Amendment No. 1 is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-CBOE-2007-106 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-CBOE-2007-106. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). 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, 100 F Street, NE., Washington, DC 20549 on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CBOE-2007-106 and should be submitted on or before January 11, 2008. VI. Conclusion *It is therefore ordered* , pursuant to section 19(b)(2) of the Act, 37 that the proposed rule change (SR-CBOE-2007-106), as amended by Amendment No. 1, be, and hereby is, approved on an accelerated basis. 37 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 38 38 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-24790 Filed 12-20-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56973; File No. SR-ISE-2007-109] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to Rule 2213, Market Maker Trading Licenses December 17, 2007. 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 14, 2007, the International Securities Exchange, LLC (“ISE” or “Exchange”) 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 substantially prepared by the ISE. On December 13, 2007, the Exchange filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The ISE is proposing to amend its Rule 2213, “Market Maker Trading Licenses,” to eliminate the limitation that a foreign exchange options primary market maker (“FXPMM”) in the Exchange's foreign currency options (“FX options”) cannot make a market in more than four
(4)currency pairs. The text of the proposed rule change is available on the Exchange's Web site ( *http://www.iseoptions.com* ), at the Exchange, and at the Commission's Public Reference Room. 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 ISE 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 ISE 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 ISE proposes to amend its Rule 2213, “Market Maker Trading Licenses,” to eliminate the limitation that an FXPMM in the Exchange's FX options cannot make a market in more than four currency pairs. 3 Under the Exchange's current rules, FXPMMs are limited to making a market in no more than four currency pairs. 4 All four of the FX options currently listed by the Exchange are served by the same FXPMM. As a result of the limitation in ISE Rule 2213, that FXPMM is prevented from serving as a primary market maker in additional currency pairs. The Exchange intends to launch additional currency pairs in the near future. In order for the Exchange to allow the current FXPMM to participate in the auction for those additional currency pairs, ISE proposes to eliminate the limitation in Rule 2213 that a FXPMM cannot act as a primary market maker in more than four currency pairs. The Exchange believes that removing this limitation from its rules will
(1)allow the Exchange to launch additional currency pairs,
(2)permit the current FXPMM to participate in the auction for the additional currency pairs the Exchange intends to launch, and
(3)provide market participants with an opportunity to trade those additional currency pairs as a means to diversify their portfolio. 3 The Exchange began trading FX options on the euro, the British pound, the Japanese yen and the Canadian dollar on April 17, 2007. *See* Securities Exchange Act Release No. 55575 (April 3, 2007), 72 FR 17963 (April 10, 2007) (SR-ISE-2006-59). 4 FXPMMs are permitted to quote and trade in FX options only. 2. Statutory Basis The basis under the Act for this proposed rule change is found in Section 6(b)(5), 5 in that the proposed change is designed to promote just and equitable principles of trade, will serve to remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, by permitting members to become market makers in a greater number of the Exchange's FX options. 5 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties. 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. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-ISE-2007-109 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-ISE-2007-109. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). 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, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ISE-2007-109 and should be submitted on or before January 11, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 6 6 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-24800 Filed 12-20-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56952; File No. SR-NASDAQ-2007-097] Self-Regulatory Organizations; the NASDAQ Stock Market LLC; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Trade the Shares of 45 Funds of the Rydex ETF Trust Based on Numerous Domestic Securities Indexes Pursuant to Unlisted Trading Privileges December 12, 2007. 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 6, 2007, The NASDAQ Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. This order provides notice of the proposed rule change and approves it on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Nasdaq proposes to trade, pursuant to unlisted trading privileges (“UTP”), shares (“Shares”) of 45 funds of the Rydex ETF Trust (“Trust”). The text of the proposed rule change is available from the Exchange's Web site ( *http://nasdaq.complinet.com* ), at the principal office of the Exchange, and at the Commission's Public Reference Room. 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 III 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 Nasdaq proposes to trade pursuant to UTP the Shares of the 45 new funds of the Trust that are designated as Rydex Leveraged Funds (the “Leveraged Funds”), Rydex Inverse Funds (the “Inverse Funds”), and Rydex Leveraged Inverse Funds (the “Leveraged Inverse Funds”). Each of the Funds has a distinct investment objective. Each Fund attempts, on a daily basis, to achieve its investment objective by corresponding to a specified multiple of the performance, or the inverse performance, of a particular equity securities index (individually referred to as the “Underlying Index” and collectively referred to as the “Underlying Indexes”). The American Stock Exchange LLC (“Amex”) filed a proposal with the Commission to list and trade the Shares, which was approved by the Commission on October 29, 2007 (the “Amex Proposal”). 3 3 *See* Securities Exchange Act Release No. 56713 (October 29, 2007), 72 FR 61915 (November 1, 2007) (SR-Amex-2007-74). The Funds are based on the following benchmark indexes:
(1)The S&P 500 Index (the “S&P 500”);
(2)the S&P MidCap 400 Index;
(3)the S&P Small Cap 600 Index;
(4)the Russell 1000 Index;
(5)the Russell 2000 Index;
(6)the Russell 3000 Index;
(7)the S&P 500 Consumer Discretionary Index;
(8)the S&P 500 Consumer Staples Index;
(9)the S&P 500 Energy Index;
(10)the S&P 500 Financials Index;
(11)the S&P 500 Healthcare Index;
(12)the S&P 500 Industrials Index;
(13)the S&P 500 Information Technology Index;
(14)the S&P 500 Materials Index; and
(15)the S&P 500 Utilities Index. Certain Funds seek daily investment results, before fees and expenses, that correspond to twice (200%) the daily performance of the Underlying Indexes (the “Leveraged Funds”). Such a Fund, if successful in meeting its objective, should gain, on a percentage basis, approximately twice as much as the Fund's Underlying Index when the prices of the securities in such Index increase on a given day, and should lose approximately twice as much when such prices decline on a given day. In addition, Nasdaq proposes to trade pursuant to UTP shares of the Funds that seek daily investment results, before fees and expenses, that correspond to the inverse or opposite of the daily performance (−100%) of the Underlying Indexes (the “Inverse Funds”). If such a Fund is successful in meeting its objective, the net asset value (the “NAV”) of shares of the Fund should increase approximately as much, on a percentage basis, as the respective Underlying Index loses when the prices of the securities in the Index decline on a given day, or should decrease approximately as much as the respective Index gains when the prices of the securities in the index rise on a given day. Finally, Nasdaq proposes to trade pursuant to UTP shares of the Funds that seeks daily investment results, before fees and expenses that correspond to twice the inverse (−200%) of the daily performance of the Underlying Indexes (the “Leveraged Inverse Funds”). If such a Fund is successful in meeting its objective, the NAV of shares of the Fund should increase approximately twice as much, on a percentage basis, as the respective Underlying Index loses when the prices of the securities in the Index decline on a given day, or should decrease approximately twice as much as the respective Underlying Index gains when the prices of the securities in the index rise on a given day. The Underlying Indexes and the operation of the Funds are described further in the Amex Proposal. The Trust's Web site ( *http://www.rydexinvestments.com* ), which is and will be publicly accessible at no charge, will contain the following information for each Fund's Shares:
(1)The prior business day's closing NAV, the reported closing price, and a calculation of the premium or discount of such price in relation to the closing NAV;
(2)data for a period covering at least the four previous calendar quarters (or the life of a Fund, if shorter) indicating how frequently each Fund's Shares traded at a premium or discount to NAV based on the daily closing price and the closing NAV, and the magnitude of such premiums and discounts;
(3)its prospectus and/or product description; and
(4)other quantitative information such as daily trading volume. The prospectus and/or product description for each Fund will inform investors that the Trust's Web site has information about the premiums and discounts at which the Fund's Shares have traded. According to the Amex Proposal, Amex will disseminate for each Fund on a daily basis by means of Consolidated Tape Association (“CTA”) and CQ High Speed Lines information with respect to an Indicative Intra-Day Value (“IIV”) (as defined and discussed below), the recent NAV, the number of shares outstanding, the estimated cash amount, and the total cash amount per Creation Unit (as defined in the Amex Proposal). Amex will make available on its Web site daily trading volume, the closing price, the NAV, and the final dividend amounts to be paid for each Fund. Amex represented in the Amex Proposal that it will obtain a representation from the Trust (for each Fund), prior to listing, that the NAV per share for each Fund will be calculated daily and made available to all market participants at the same time. 4 4 If Amex halts trading in the Shares of the Funds because the NAV is not being disseminated to all market participants at the same time, then Nasdaq would do so as well. According to the Amex Proposal, each Fund's total portfolio composition is disclosed on the Web site of the Trust or another relevant Web site as determined by the Trust and/or Amex. The Trust expects that Web site disclosure of portfolio holdings will be made daily and will include, as applicable, the names and number of shares held of each specific types of financial instruments and characteristics of such instruments, cash equivalents, and the amount of cash held in the portfolio of each Fund. This public Web site disclosure of the portfolio composition of each Fund will coincide with the disclosure by Rydex Investments (“Advisor”) of the “IIV File” and the “PCF File” provided to an “Authorized Participant,” a broker-dealer or other participant in the continuous net settlement system of the National Securities Clearing Corporation (“NSCC”) or a Depositary Trust Company participant, which has entered into a participant agreement with the distributor, Rydex Distributors, Inc. 5 The format of the public Web site disclosure and the IIV File and PCF File will differ because the public Web site will list all portfolio holdings while the IIV File and PCF File will similarly provide the portfolio holdings but in a format appropriate for Authorized Participants, *i.e.* , the exact components of a Creation Unit. 6 Accordingly, each investor will have access to the current portfolio composition of each Fund through the Trust's Web site, at *http://www.rydexinvestments.com* , and/or at the Amex's Web site at *http://www.amex.com* . 5 According to the Amex Proposal, at the end of each business day, the Trust will create a portfolio composition file (“PCF”) for each Fund, which it will transmit to NSCC before the open of business the next business day. The information in the PCF will be available to all participants in the NSCC system. Because the NSCC's system for the receipt and dissemination to its participants of the PCF is not currently capable of processing information with respect to financial instruments, the Advisor has developed an “IIV File,” which it will use to disclose the Funds' holdings of financial instruments. The IIV File will contain, for each Leveraged Fund (to the extent it holds financial investments) and Inverse and Leveraged Inverse Fund, information sufficient by itself or in connection with the PCF File and other available information for market participants to calculate a Fund's IIV and effectively arbitrage the Fund. The Trust or the Advisor will post the IIV File to a password-protected Web site before the opening of business on each business day, and all Authorized Participants and Amex will have access to a password and the Web site containing the IIV File. 6 The composition will be used to calculate the NAV later that day. Beneficial owners of Shares will receive all of the statements, notices, and reports required under the Investment Company Act of 1940 7 and other applicable laws. They will receive, for example, annual and semiannual fund reports, written statements accompanying dividend payments, proxy statements, annual notifications detailing the tax status of fund distributions, and Form 1099-DIVs. Some of these documents will be provided to beneficial owners by their brokers, while others will be provided by the Fund through the brokers. 7 15 U.S.C. 80a. The daily closing index value and the percentage change in the daily closing index value for each Underlying Index is publicly available on various Web sites, *e.g.* , *http://www.bloomberg.com* . Data regarding each Underlying Index is also available from the respective index provider to subscribers. Several independent data vendors also package and disseminate index data in various value-added formats (including vendors displaying both securities and index levels and vendors displaying index levels only). The value of each Underlying Index is updated intra-day as its individual component securities change in price. These intra-day values of each Underlying Index are disseminated at least every 15 seconds though the trading day by Amex or another organization authorized by the relevant Underlying Index provider. According to the Amex Proposal, to provide updated information relating to each Fund for use by investors, professionals, and persons wishing to create or redeem Shares, Amex will disseminate though the facilities of the CTA:
(1)Continuously throughout the trading day, the market value of a Share; and
(2)at least every 15 seconds throughout the trading day, a calculation of the Indicative Intra-Day Value or “IIV” as calculated by Amex (the “IIV Calculator”). Comparing these two figures helps an investor to determine whether, and to what extent, the Shares may be selling at a premium or a discount to NAV. The IIV Calculator
(Amex)calculates an IIV for each Fund in the manner discussed in the Amex Proposal. The IIV is designed to provide investors with a reference value that can be used in connection with other related market information. The IIV does not necessarily reflect the precise composition of the current portfolio held by each Fund at a particular point in time. Therefore, the IIV on a per-Share basis disseminated during Amex trading hours should not be viewed as a real-time update of the NAV of a particular Fund, which is calculated only once a day. While the IIV that will be disseminated by Amex is expected to be close to the most recently calculated Fund NAV on a per-Share basis, it is possible that the value of the portfolio held by a Fund may diverge from the IIV during any trading day. In such case, the IIV will not precisely reflect the value of the Fund portfolio. Nasdaq will halt trading in the Shares of the Fund under the conditions specified in Nasdaq Rules 4120 and 4121. The conditions for a halt include a regulatory halt by the listing market. UTP trading in the Shares will also be governed by provisions of Nasdaq Rule 4120(b) relating to temporary interruptions in the calculation or wide dissemination of the IIV or the value of the underlying index. Additionally, Nasdaq may cease trading the Shares if other unusual conditions or circumstances exist which, in the opinion of Nasdaq, make further dealings on Nasdaq detrimental to the maintenance of a fair and orderly market. Nasdaq will also follow any procedures with respect to trading halts as set forth in Nasdaq Rule 4120(c). Finally, Nasdaq will stop trading the Shares if the listing market delists them. Nasdaq deems the Shares to be equity securities, thus rendering trading in the Shares subject to Nasdaq's existing rules governing the trading of equity securities. Nasdaq will allow trading in the Shares only from 9:30 a.m. until 4:15 p.m. until the Commission acts on Nasdaq's proposal to generally allow trading in ETFs on Nasdaq during the Pre-Market and Post-Market Sessions, which would permit trading in the Shares from 7 a.m. until 8 p.m. 8 8 *See* SR-NASDAQ-2007-098 (filed on December 7, 2007). Nasdaq believes that its surveillance procedures are adequate to address any concerns about the trading of the Shares on Nasdaq. Trading of the Shares through Nasdaq facilities is currently subject to FINRA'S surveillance procedures for equity securities in general and ETFs in particular. 9 9 FINRA surveils trading pursuant to a regulatory services agreement. Nasdaq is responsible for FINRA'S performance under this regulatory services agreement. Nasdaq will be able to obtain information regarding trading in the Shares through its members in connection with the proprietary or customer trades that such members effect on any relevant market. In addition, Nasdaq may obtain trading information via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members or affiliates of the ISG. 10 In addition, Nasdaq also has a general policy prohibiting the distribution of material, non-public information by its employees. 10 For a list of the current members and affiliate members of ISG, see *http://www.isgportal.com.* Prior to the commencement of trading, Nasdaq will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following:
(1)The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable);
(2)Nasdaq Rule 2310, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers;
(3)the risks involved in trading the Shares during the Pre-Market and Post-Market Sessions when an updated IIV will not be calculated or publicly disseminated;
(4)how information regarding the IIV is disseminated;
(5)the requirement that Nasdaq members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and
(6)trading information. In addition, the Information Circular will reference that the Fund is subject to various fees and expenses described in the registration statement for the Fund. The Information Circular will also discuss any exemptive, no-action and interpretive relief granted by the Commission from section 11(d)(1) of the Act 11 and certain rules under the Act, including Rule 10b-10, Rule 14e-5, Rule 10b-17, Rule 11d1-2, Rules 15cl-5 and 15cl-6, and Rules 101 and 102 of Regulation M. The Information Circular will also disclose that the NAV for the Shares will be calculated after 4 p.m. Eastern Time each trading day. 11 15 U.S.C. 78k(d)(1). 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange. Specifically, Nasdaq believes that the proposed rule change is consistent with the section 6(b)(5) 12 requirements that an exchange have rules designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. In addition, Nasdaq believes that the proposal is consistent with Rule 12f-5 under the Act 13 because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 12 15 U.S.C. 78f(b)(5). 13 17 CFR 240.12f-5. 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 that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange neither solicited nor received comments on the proposal. 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. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NASDAQ-2007-097 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NASDAQ-2007-097. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). 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, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASDAQ-2007-097 and should be submitted on or before January 11, 2008. IV. Commission's Findings and Order Granting Accelerated Approval of the Proposed Rule Change After careful review, the Commission 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 exchange. 14 In particular, the Commission finds that the proposed rule change is consistent with section 6(b)(5) of the Act, 15 which requires that an exchange have rules designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. The Commission believes that this proposal should benefit investors by increasing competition among markets that trade the Shares. 14 In approving this rule change, the Commission notes that it has considered the proposal's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 15 15 U.S.C. 78f(b)(5). In addition, the Commission finds that the proposal is consistent with section 12(f) of the Act, 16 which permits an exchange to trade, pursuant to UTP, a security that is listed and registered on another exchange. 17 The Commission notes that it previously approved the listing and trading of the Shares on Amex. 18 The Commission also finds that the proposal is consistent with Rule 12f-5 under the Act, 19 which provides that an exchange shall not extend UTP to a security unless the exchange has in effect a rule or rules providing for transactions in the class or type of security to which the exchange extends UTP. The Exchange has represented that it meets this requirement because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 16 15 U.S.C. 78 *l* (f). 17 Section 12(a) of the Act, 15 U.S.C. 78 *l* (a), generally prohibits a broker-dealer from trading a security on a national securities exchange unless the security is registered on that exchange pursuant to Section 12 of the Act. Section 12(f) of the Act excludes from this restriction trading in any security to which an exchange “extends UTP.” When an exchange extends UTP to a security, it allows its members to trade the security as if it were listed and registered on the exchange even though it is not so listed and registered. 18 *See supra* note 3. 19 17 CFR 240.12f-5. The Commission further believes that the proposal is consistent with section 11A(a)(1)(C)(iii) of the Act, 20 which sets forth Congress's finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Quotations for and last-sale information regarding the Shares are disseminated through the facilities of the CTA and the Consolidated Quotation System. In addition, Amex will calculate and disseminate the IIV per Share for each Fund through the facilities of the Consolidated Tape Association at least every 15 seconds throughout the trading hours for the Shares. The value of each Underlying Index will also be updated intra-day on a real-time basis as its individual component securities change in price and will be disseminated at least every 15 seconds throughout the trading hours for the Shares. Finally, the Trust's Web site provides various information for each Fund's Shares. 20 15 U.S.C. 78k-1(a)(1)(C)(iii). The Commission also believes that the proposal appears reasonably designed to preclude trading of the Shares when transparency is impaired. Trading in the Shares will be subject to Nasdaq Rule 4120(b), which provides that, if the listing market halts trading when the IIV or value of the underlying index is not being calculated or disseminated, the Exchange also would halt trading. In support of this proposal, the Exchange has made the following additional representations: 1. The Exchange's surveillance procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules. 2. Prior to the commencement of trading, the Exchange would inform its members in an Information Bulletin of the special characteristics and risks associated with trading the Shares. 3. The Information Bulletin also would discuss the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction. This approval order is based on the Exchange's representations. The Commission notes that, if the Shares should be delisted by the listing exchange, the Exchange would no longer have authority to trade the Shares pursuant to this order. The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the **Federal Register** . As noted above, the Commission previously found that the listing and trading of the Shares on Amex is consistent with the Act. The Commission presently is not aware of any regulatory issue that should cause it to revisit that finding or would preclude the trading of the Shares on the Exchange pursuant to UTP. Therefore, accelerating approval of this proposal should benefit investors by creating, without undue delay, additional competition in the market for the Shares. V. Conclusion *It is therefore ordered,* pursuant to section 19(b)(2) of the Act, 21 that the proposed rule change (SR-NASDAQ-2007-097) be, and it hereby is, approved on an accelerated basis. 21 15 U.S.C. 78s(b)(2). 22 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 22 Florence E. Harmon, Deputy Secretary. [FR Doc. E7-24789 Filed 12-20-07; 8:45 am] BILLING CODE 8011-01-P DEPARTMENT OF TRANSPORTATION Office of the Secretary Application of Taga Air Charter Service, Inc. for Commuter Air Carrier Authorization AGENCY: Department of Transportation. ACTION: Notice of Order to Show Cause (Order 2007-12-11), Docket DOT-OST-2006-25577. SUMMARY: The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding that Taga Air Charter Service, Inc., is not a U.S. citizen, as defined in 49 U.S.C. 40102(a)(15), and that its application for Commuter Air Carrier Authorization under section 41738 of the Statute is denied. In addition, we propose to cancel its existing air taxi registration pursuant to 49 U.S.C. 40109(f) and 14 CFR part 298. DATES: Persons wishing to file objections should do so no later than January 22, 2008. ADDRESSES: Objections and answers to objections should be filed in Docket DOT-OST-2006-25577, and addressed to U.S. Department of Transportation, Docket Operations, West Building Ground Floor, (M-30, Room W12-140) 1200 New Jersey Avenue, SE., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order. FOR FURTHER INFORMATION CONTACT: Ronâle Taylor, Air Carrier Fitness Division (X-56, West Building, 8th Floor), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590,
(202)366-9721. Dated: December 17, 2007. Andrew B. Steinberg, Assistant Secretary for Aviation and International Affairs. [FR Doc. E7-24868 Filed 12-20-07; 8:45 am] BILLING CODE 4910-62-P DEPARTMENT OF TRANSPORTATION Federal Transit Administration Alternatives Analysis/Environmental Impact Statement for Rapid Transit in Utah County, UT AGENCY: Federal Transit Administration (FTA), U.S. Department of Transportation (DOT). ACTION: Notice of Intent To Prepare an Alternatives Analysis/Environmental Impact Statement. SUMMARY: The Federal Transit Administration (FTA), Utah Transit Authority (UTA), and Mountainland Association of Governments
(MAG)intend to prepare an Alternatives Analysis/Environmental Impact Statement (AA/EIS) for potential high-capacity fixed-guideway transit improvements and roadway infrastructure improvements in Utah County, Utah. The project's purposes are to serve transit markets along the corridor including two universities (Brigham Young University and Utah Valley State College), existing and planned student housing, retail malls, several employment centers, historic downtown Provo, and two major regional intermodal centers; provide circulation and distribution for future transit projects including commuter rail; and to accommodate future travel demand while maintaining efficient traffic flow. The project termini are the planned Orem intermodal center near Utah Valley State College
(UVSC)on the north and a location near the Provo Towne Center Mall and East Bay Business Complex (Novell Campus) on the south. The general location of the corridor is on or near University Parkway and University Avenue in Utah County and length of the project is approximately 9 miles. The timeframe for the environmental review process is from January 2008 to January 2010. The AA/EIS will be prepared in accordance with section 102(2)c of the National Environmental Policy Act of 1969
(NEPA)and pursuant to the Council on the Environmental Quality's regulations (40 CFR parts 1500-1508), FTA/FHWA joint regulations (23 CFR 771) as well as provisions of the Safe, Accountable, Flexible Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The purpose of this notice is to alert interested parties regarding the intent to prepare the AA/EIS, to provide information on the nature of the proposed project and possible alternatives, to invite public participation in the NEPA process (including providing comments on the scope of the AA/EIS), and to announce that a public scoping meeting will be conducted. The AA/EIS will examine and evaluate a number of transit alternatives in the corridor. Any additional alternatives generated by the scoping process as well as the proposed station locations for the Build alternatives will also be considered. The alternatives will be compared to a No-Action Alternative for evaluation purposes. Scoping for the AA/EIS will be accomplished through a public meeting; e-mail and hard copy correspondence with interested individuals and organizations, Federal, State, and local agencies, and Native American Tribes; and through a meeting with cooperating and participating public agencies. Interested parties may comment by:
(1)E-mailing *provo-oremrapidtransit@hwlochner.com* ;
(2)visiting the project Web site at *http://www.provo-oremrapidtransit.info* ;
(3)mailing written comments to the address below, or
(4)attending the public scoping meeting, described below under *Meeting Dates* . A scoping information packet will be posted on the project Web site at *http://www.provo-oremrapidtransit.info* and hard copies of the packet will be distributed on request. Meeting Dates *Public Scoping Meeting:* A public scoping meeting will be held Thursday, January 24, 2008 from 5 p.m. to 7 p.m. at the Provo City Library (550 N University Ave, Provo). The project's purpose and need, and the initial set of alternatives proposed for study will be presented at this meeting. Comments may be given verbally or in writing at the scoping meeting. Every reasonable effort will be made to meet special needs. The meeting location will be accessible to persons with disabilities. Individuals who require special accommodations, such as sign language interpreter, to participate in the meeting should contact Ms. Sherry L. Repscher, ADA Compliance Officer, Utah Transit Authority, 3600 South 700 West, Salt Lake City, UT 84119-0810 or by telephone at
(801)262-5626 or TDD at
(801)287-4657. *Agency Scoping Meeting:* An agency scoping meeting will be held on Wednesday, January 23, 2008, from 9:15 a.m. to 12 p.m. at the Provo City Library (Bullock Room 309), 550 North University Ave, Provo, Utah. The purpose of the meeting is to provide an overview of the project, to allow agencies to determine their level of interest in the project, and to allow agencies to help identify the proposed project's level of impact on environmental, social, and economic resources. The scoping meeting will include a bus tour of the project study area. The bus tour will depart at 9:30 a.m. from the Provo City Library parking lot. ADDRESSES: Written comments should be sent to the following address by February 28, 2008: Laynee Jones, HW Lochner, 310 East 4500 South, Murray, Utah 84107 or *provo-oremrapidtransit@hwlochner.com* . The location of the public scoping meeting is given above under *Meeting Dates* . FOR FURTHER INFORMATION CONTACT: Charmaine Knighton, Deputy Regional Administrator, Region VIII, Federal Transit Administration, 12300 West Dakota Avenue, Suite 310, Denver, CO 80228. Telephone: 720-963-3327. SUPPLEMENTARY INFORMATION: I. Scoping The FTA, UTA, and MAG invite all interested individuals and organizations, public agencies, and Native American Tribes to comment on the scope of the AA/EIS including the project's purpose and need, alternatives, impacts to be evaluated, and evaluation methods to be used. Comments should focus on refining the purpose and need statement, developing alternatives to meet the purpose and need, and on identifying specific social, economic, or environmental impacts to be evaluated. The scoping period will end February 28, 2008. A scoping information packet will be posted on the project Web site at *http://www.provo-oremrapidtransit.info* and hard copies of the packet will be distributed on request. II. Description of Project Study Area and Its Purpose and Need Known as the Provo-Orem Rapid Transit AA/EIS, this project consists of increasing transit opportunities and maintaining efficient traffic flow in an area that contains two universities, retail malls, employment centers, a historic downtown, and two major regional intermodal centers. The proposed project originated from the Inter-Regional Corridor Alternatives Analysis (IRCAA) completed in 2002 and the Provo/Orem Rapid Transit Corridor Feasibility Study (Feasibility Study) completed in 2005. The Feasibility Study selected Bus Rapid Transit
(BRT)as the solution for the increasing transportation demand in Utah County. The BRT project is included in the Mountainland Association of Government's fiscally constrained Long Range Transportation Plan. *Preliminary statement of purpose of and need for the proposed project:* The purpose of the project is to serve transit markets along the corridor; provide circulation and distribution for future transit projects including commuter rail; and to accommodate future travel demand while maintaining efficient traffic flow. The needs identified in the previous studies include: enhancing community character, accommodating the ultimate cross-section of the road, meeting traffic demand on the travel lanes, encouraging economic development, and providing a system that is safe, easy, and convenient to use. The public and participating and cooperating agencies are invited to consider and comment on this preliminary statement of the purpose and need for the proposed project. *Projected Ridership.* According to preliminary estimates in the Feasibility Study, the project is anticipated to serve 17,000 boardings per day. Brigham Young University is located near the center of the study area and has an enrollment of over 35,000. Most of its students live within 3.5 miles of campus and the feasibility study indicates that 67 percent of students walk to campus. The project area has a strong local ridership base; an on-board survey of UTA bus routes serving Utah County concluded that approximately 52 percent of riders live in Provo and 19 percent live in Orem. Approximately 35 percent of riders were students. *Local Land Use and Economic Development.* Provo and Orem are the two largest cities in Utah County. Based on a comparison of Census data from 1990 to 2000, Provo was shown to be the fourth fastest-growing metropolitan area for job creation and the tenth fastest-growing for population. By 2030, Provo is expected to grow to a population of almost 137,000 and Orem is expected to grow to a population of over 107,000. Although the entire study area is growing, population and employment growth are dispersed in different densities along the project corridor. Employment density is projected to increase in particular along University Avenue. *Environmental Process:* In accordance with NEPA, SAFETEA-LU section 6002 and FTA's section 5309 New Starts requirements, the project's environmental process has been divided into three general phases:
(1)Scoping;
(2)Alternatives Analysis/ EIS, selection of the Locally Preferred Alternative (LPA); selection of the Preferred Alternative and
(3)Final EIS. III. Alternatives The Feasibility Study conducted in 2005 recommended Bus Rapid Transit
(BRT)along University Parkway and University Avenue with a detour off University Avenue to serve Brigham Young University (BYU). Because population and employment densities have changed in the study area since 2005, the AA/EIS will evaluate a wide range of fixed guideway alternatives including light rail and Bus Rapid Transit. Bus Rapid Transit includes exclusive transit lanes (either center-running or side-running) and queue jump lanes. The preliminary alternatives will be narrowed to a locally preferred alternative based on updated ridership forecasts. The locally preferred alternative and a No-Action alternative will be evaluated in detail in the EIS resulting in the selection of a Preferred Alternative. IV. Probable Effects NEPA requires FTA and UTA to evaluate the significant impacts of the alternatives selected for study in the AA/EIS. Primary issues identified thus far include additional right-of-way takes, business impacts, potential impacts to historic properties, and traffic and accessibility impacts. The impacts will be evaluated for both the construction period and for the long-term period of operation. Measures to mitigate adverse impacts will be developed. V. FTA Procedures The regulation implementing NEPA, as well as provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), call for public involvement in the NEPA process. Section 6002 of SAFETEA-LU requires that the lead agencies (FTA, UTA, and MAG) do the following:
(1)Extend an invitation to other Federal and non-Federal agencies and Native American tribes that may have an interest in the proposed project to become “participating agencies;”
(2)provide an opportunity for involvement by participating agencies and the public to help define the purpose and need for a proposed project, as well as the range of alternatives for consideration in the EIS; and
(3)establish a plan for coordinating public and agency participation in, and comment on, the environmental review process. An invitation to become a participating or cooperating agency, with scoping materials appended, will be extended to other Federal and non-Federal agencies and Native American tribes that may have an interest in the proposed project. It is possible that the lead agencies will not be able to identify all Federal and non-Federal agencies and Native American tribes that may have such an interest. Any Federal or non-Federal agency or Native American tribe interested in the proposed project that does not receive an invitation to become a participating agency should notify Pat Rothacher, Utah Transit Authority, at 3600 South 700 West, Salt Lake City, UT 84119 or *prothacher@rideuta.com.* UTA is seeking federal assistance from the FTA to fund the proposed project under 49 United States Code 5309 and will, therefore, be subject to regulations (49 Code of Federal Regulations
(CFR)Part 611) related to New Starts projects. The AA/EIS will be prepared in accordance with NEPA and its implementing regulation issued by the Council on Environmental Quality (40 CFR Parts 1500-1508) and with the FTA/Federal Highway Administration regulations “Environmental Impact and Related Procedures” (23 CFR part 771). In accordance with 23 CFR 771.105(a) and 771.133, FTA will comply with all Federal environmental laws, regulations, and executive orders applicable to the proposed project during the environmental review process. These requirements include, but are not limited to, the environmental and public hearing provisions of Federal transit laws (49 U.S.C. 5301 (e), 5323 (b), and 5324); the project-level air quality conformity regulation of the U.S. Environmental Protection Agency
(EPA)(40 CFR Part 93); The section 404 (b)(1) guidelines of EPA (40 CFR Part 230); the regulation implementing section 106 of the National Historic Preservation Act (36 CFR Part 800); the regulation implementing section 7 of the Endangered Species Act (50 CFR Part 402); section 4(f) of the Department of Transportation Act (23 CFR 771.135); and Executive Orders 12898 on environmental justice, 11988 on floodplain management, and 11990 on wetlands. Issued on: December 14, 2007. Charmaine Knighton, Deputy Regional Administrator, Region VIII. [FR Doc. E7-24861 Filed 12-20-07; 8:45 am] BILLING CODE 4910-57-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration [Docket No. PHMSA-2006-24058] Pipeline Safety: Grant of Special Permit; TransCanada Pipelines Limited AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT. ACTION: Notice; Grant of Special Permit. SUMMARY: The Pipeline and Hazardous Materials Safety Administration (PHMSA) is granting TransCanada Pipelines Limited (TransCanada) a special permit waiving compliance from the Federal pipeline safety regulation in 49 CFR 192.611 for two pipeline segments in the Portland Natural Gas Transmission System, described below under “Pipeline System Affected.” The regulation requires natural gas pipeline operators to confirm or revise the maximum allowable operating pressure of a pipeline after a change in class location. FOR FURTHER INFORMATION CONTACT: Alan Mayberry at
(202)366-5124, or by e-mail at *Alan.Mayberry @dot.gov;* or Wayne Lemoi at
(404)832-1160 or by e-mail at *Wayne.Lemoi@dot.gov.* SUPPLEMENTARY INFORMATION: Special Permit Request *Pipeline Operator:* TransCanada petitioned PHMSA on April 8, 2005, for a special permit to waive compliance from the Federal pipeline safety regulation in 49 CFR § 192.611 for two pipeline segments of the Portland Natural Gas Transmission System (PNGTS) 24-inch mainline operated by TransCanada and described below under “Pipeline System Affected.” The regulation requires natural gas pipeline operators to confirm or revise the maximum allowable operating pressure
(MAOP)of a pipeline after a change in class location. *Pipeline System Affected:* This special permit request covers two segments of a single 24-inch pipeline known as the PNGTS pipeline in and near the town of North Windham, Maine. *Special permit segment* 1 includes 615 feet that changed from a Class 1 location to a Class 3 location on March 1, 2004, and an additional 2,298 feet that TransCanada anticipates will change from a Class 1 location to a Class 3 location for a total of 2,913 feet. *Special permit segment* 2 is just upstream of *special permit segment* 1 and includes 4,766 feet anticipated by TransCanada to change from a Class 1 location to a Class 3 location. Anticipated class location change for both *special permit segments* is due to residential and commercial development anticipated by TransCanada. The two “ *special permit segments* ” are defined as follows: • *Special Permit Segment* 1: 2,913 feet, mile post
(MP)132.20 to MP 132.75 • *Special Permit Segment* 2: 4,766 feet, MP 130.88 to MP 131.78 A *special permit inspection area* is defined as the area within 220 yards of each side of a pipeline centerline along the entire length of the *special permit segment* and along the pipeline up to 25 miles upstream and downstream of the *special permit segment.* The “ *special permit inspection area* ” for this special permit consists of the area within 220 yards of each side of the PNGTS pipeline centerline along the entire length of the pipeline from 25 miles upstream of *special permit segment* 2 to approximately 10 miles downstream of *special permit segment* 1 and is inclusive of both special permit segments. Public Notice On September 7, 2006, PHMSA published a notice of the TransCanada request in the **Federal Register** (71 FR 52871) inviting interested persons to comment on the request. On February 8, 2007, PHMSA posted another notice in the **Federal Register** (72 FR 6042) informing the public that we have changed the name granting a waiver to a special permit. We did not receive any public comments for or against this special permit request. We also requested and received supplemental information from TransCanada. The special permit petition, **Federal Register** notice, supplemental information from TransCanada and all other documents pertinent to this special permit request are available for review by the public in Docket Number PHMSA-2006-24058 in the Federal Docket Management System
(FDMS)located on the internet at *www.Regulations.gov.* Special Permit Analysis *Background:* On June 29, 2004, PHMSA published in the **Federal Register** (69 FR 38948) the criteria it uses for the consideration of class location change special permits. First, certain threshold requirements must be met for a pipeline section to be further evaluated for a class location change special permit. Second, the age and manufacturing process of the pipe; system design and construction; environmental, operating and maintenance histories; and integrity management program
(IMP)elements are evaluated as significant criteria. These significant criteria are presented in matrix form and can be reviewed in the FDMS, Docket Number PHMSA-RSPA-2004-17401. Third, such special permits will only then be granted when pipe conditions and active integrity management provides a level of safety greater than or equal to a pipe replacement or pressure reduction. *Threshold Requirements:* Each of the threshold requirements published by PHMSA in the June 29, 2004 FR notice is discussed below for the TransCanada special permit petition.
(1)No pipeline segments in a class location changing to Class 4 location will be considered. This special permit request is for two pipeline segments in class locations that have changed or are anticipated to change from Class 1 to Class 3. This requirement has been met for both PNGTS *special permit segments.*
(2)No bare pipe will be considered. Both *special permit segments* of the PNGTS pipeline are coated with Fusion Bond Epoxy (FBE), meeting this requirement.
(3)No pipe containing wrinkle bends will be considered. There are no wrinkle bends in the *special permit segments.* This requirement has been met for both PNGTS *special permit segments.*
(4)No pipe segments operating above 72 percent of the specified minimum yield strength
(SMYS)will be considered for a Class 3 special permit. The PNGTS pipeline operates at or below 72 percent SMYS. This requirement has been met for both PNGTS *special permit segments.*
(5)Records must be produced that show a hydrostatic test to at least 1.25 × MAOP. The PNGTS pipeline has been hydrostatically tested to 1,846 pounds per square inch gauge (psig), 1.28 × MAOP. This requirement has been met for both PNGTS *special permit segments.*
(6)In-line inspection
(ILI)must have been performed with no significant anomalies identified that indicate systemic problems. The PNGTS pipeline has been ILI inspected with no significant anomalies in the *special permit segments,* thus meeting this requirement.
(7)The *special permit inspection* area must be inspected according to the operator's IMP and periodically inspected with an in-line inspection technique. This special permit will include conditions requiring TransCanada to perform additional inspections in the *special permit inspection area* on a frequency consistent with the integrity management regulations contained in 49 CFR Part 192, Subpart O. The special permit conditions will also require TransCanada to incorporate both *special permit segments* in its written IMP as “covered segments” in a “high consequence area (HCA)” per 49 CFR 192.903. *Criteria Matrix:* The original and supplemental data submitted by TransCanada for the *special permit segments* have been compared to the class location change special permit criteria matrix. The data falls within the “ *probable acceptance* ” column of the criteria matrix for all criteria except for a change, from a Class 1 location to a Class 3 location, which falls within the “ *possible acceptance* ” column of the criteria matrix, and the ILI Time Frame Requirement which falls within the “possible acceptance” column of the criteria matrix.
(1)Pipe design and construction, including pipe manufacture, material, design stress and weld radiography: the pipe of both *special permit segments* was manufactured in 1998-1999 of American Petroleum Institute Specification 5L, *Specification for Line Pipe* (API 5L), X-70 steel, using a 72 percent SMYS design factor per § 192.111, with documented 100 percent circumferential field weld radiographic inspection. The pipe coating is mill-applied FBE with field-applied FBE on circumferential welds. All of these factors fall within the “ *probable acceptance* ” column of the criteria matrix.
(2)Pressure testing: both *special permit segments* were pressure tested in 1998 to 1,846 psig corresponding to 128 percent MAOP and 92 percent SMYS. No test failures occurred. These factors fall within the “ *probable acceptance* ” column of the criteria matrix.
(3)Environmental considerations: the depth of cover is given as 48 inches for both *special permit segments* , exceeding the requirements of § 192.327(a). Both *special permit segments* are located in stable terrain that does not contain any major slopes. These factors fall within the “ *probable acceptance* ” column of the criteria matrix.
(4)Operational considerations: according to TransCanada, there were no leaks or failures in the two *special permit segments* of the pipeline. The pipeline transports only dry gas with light pressure fluctuations. Cathodic protection
(CP)was operational in the fall of 1999 on both pipeline * special permit segments * , which was within 9 months of the in-service date of the pipeline. A baseline close interval survey
(CIS)of the entire PNGTS pipeline was performed during the summer of 2000. No low potentials or CP anomalies were identified in the *special permit segments* . No safety related condition reports
(SRCR)have been issued for the *special permit segments* . These factors fall within the “ *probable acceptance* ” column of the criteria matrix.
(5)Integrity management program: *special permit segment* 1 is currently within an HCA, while *special permit segment* 2 is anticipated by TransCanada to become an HCA in its entirety due to anticipated development. The entire PNGTS pipeline (including both *special permit segments* ) transports odorized gas. Leakage surveys using leak detection equipment are performed annually on the entire pipeline including the *special permit segments* . PNGTS performed an ILI on November 1, 2002, which was more than two years but less than five years prior to the special permit application date, placing this criterion in the “ *possible acceptance* ” column of the criteria matrix. Two minor (less than 4 percent) anomalies identified in the 2002 ILI were excavated in 2005; no active corrosion was found. A high resolution magnetic flux leakage
(MFL)ILI is scheduled for 2009 on the pipeline sections including the *special permit segments* . A baseline CIS was performed in 2002 on the entire PNGTS pipeline system. TransCanada annually performs a CIS of 15-20 percent of the system and proposes to perform a CIS on the *special permit segments* annually. TransCanada has not identified any coating or corrosion issues. TransCanada proposes to perform a direct current voltage gradient
(DCVG)survey on both *special permit segments* and 1,000 feet upstream and downstream of the *special permit segments* . TransCanada also proposes to perform weekly aerial patrols and quarterly ground road crossing patrols, including leakage surveys, using leak detection equipment in the proposed *special permit segments* . TransCanada additionally proposes to install buried excavation warning tape over the pipeline comprising the *special permit segments* . All of these factors, with the exception of the ILI time frame criterion, fall within the “ *probable acceptance* ” column. The ILI time frame falls within the “ *possible acceptance* ” column because it was several months outside the two year requirement prior to the special permit application. Special Permit Findings PHMSA finds that granting this special permit is not inconsistent with pipeline safety and will provide a level of safety equal to or greater than pipe replacement or pressure reduction. We do so because the special permit analysis shows the following:
(1)The *special permit segments* meet six of the seven threshold requirements. The seventh threshold requirement, that the *special permit inspection area* be inspected according to the operator's IMP and periodically inspected with an in-line inspection technique, will be addressed in the special permit conditions. The special permit conditions will also include annual inspection requirements of the *special permit inspection area* and both *special permit segments* on a frequency consistent with 49 CFR 192, Subpart O; the Integrity Management regulations.
(2)The *special permit segments* fall in the “ *probable acceptance* ” column of the criteria matrix for all criteria except for class location change and ILI time frame. The class location change for both *special permit segments* is from a Class 1 location to a Class 3 location, which places this parameter in the “ *possible acceptance* ” column. The last ILI that was performed on the entire PNGTS pipeline containing the *special permit segments* was on November 1, 2002, which is longer than two but less than five years preceding the special permit petition. This places the ILI time frame parameter in the “ *possible acceptance* ” column.
(3)The special permit conditions will require TransCanada to implement enhanced IMP actions for the entire *special permit inspection area* . Special Permit Grant PHMSA grants a special permit of compliance from 49 CFR 192.611 to TransCanada Pipelines Limited for two pipeline segments defined below in or near North Windham, Maine in the Portland Natural Gas Transmission System. The *special permit segments* are where the class locations along the pipeline have changed or are anticipated to change in the future from a Class 1 location to a Class 3 location. As of July 1, 2007, only 615 feet of *special permit segment* 1 has actually changed to Class 3 location. PHMSA is nevertheless granting this special permit for both the actual and the anticipated class location change along both *special permit segments* because the additional integrity management program actions required by this special permit for the entire *special permit inspection area* will enhance the safety of operation of the PNGTS pipeline. This special permit applies to the pipeline *special permit segments* defined as follows: • *Special permit segment* 1: 2,913 feet, mile post
(MP)132.20 to MP 132.75 • *Special permit segment* 2: 4,766 feet, MP 130.88 to MP 131.78 A *special permit inspection area* is defined as the area within 220 yards of each side of a pipeline centerline along the entire length of the special permit segment and along the pipeline up to 25 miles upstream and downstream of the *special permit segment* . The “ *special permit inspection area* ” for this special permit consists of the area within 220 yards of each side of the PNGTS pipeline centerline along the entire length of the pipeline from 25 miles upstream of *special permit segment* 2 to approximately 10 miles downstream of *special permit segment* 1 and inclusive of both special permit segments. Special Permit Conditions This special permit is granted with the following conditions:
(1)TransCanada must continue to operate the *special permit segments* at or below the existing MAOP.
(2)TransCanada must incorporate both *special permit segment* 1 and *special permit segment* 2 into its written IMP as “covered segments” in an HCA as defined in 49 CFR Subpart O, § 192.903, except for the reporting requirements contained in 49 CFR 192.945. The *special permit segments* included in this special permit need not be included in TransCanada's IMP baseline assessment plan.
(3)TransCanada must perform a CIS of the entire length of the *special permit inspection area* not later than one year after the grant of special permit and remediate any areas of inadequate cathodic protection. A CIS and remediation need not be performed on the *special permit inspection area* if a CIS and remediation have been performed within 6 years of the grant of special permit. If factors beyond TransCanada's control prevent the completion of the CIS and remediation within one year, a CIS and remediation must be completed as soon as practicable and a letter justifying the delay and providing the anticipated date of completion must be submitted to the Director, PHMSA Eastern Region not later than one year of the grant of special permit.
(4)TransCanada must perform ongoing CIS of both *special permit segment* 1 and *special permit segment* 2 at the applicable reassessment interval(s) for a “covered segment” determined in accordance with 49 CFR 192.939.
(5)TransCanada must perform a Direct Current Voltage Gradient
(DCVG)survey of both *special permit segment* 1 and *special permit segment* 2 not later than one year after the grant of special permit to verify the pipeline coating conditions and to remediate any integrity issues in the *special permit segments* . If factors beyond TransCanada's control prevent the completion of the DCVG and remediation within one year, a DCVG and remediation must be performed as soon as practicable and a letter justifying the delay and providing the anticipated date of completion must be submitted to the Director, PHMSA Eastern Region not later than one year of the grant of special permit.
(6)TransCanada must evaluate the potential for stress corrosion cracking (SCC), according to 49 CFR 192.929 within one year after the grant of special permit. If the potential for SCC is identified, TransCanada must perform a stress corrosion cracking direct assessment (SCCDA) of the *special permit inspection area* in accordance with 49 CFR 192.929.
(7)TransCanada must submit the CIS, DCVG and SCCDA findings including remediation actions in a written report to the Director, PHMSA Eastern Region not later than two years after the grant of special permit.
(8)TransCanada must amend applicable sections of its operations and maintenance (O&M) manual(s) to incorporate the inspection and reassessment intervals by ILI along the entire length of the *special permit inspection area* at a frequency consistent with 49 CFR § 192, Subpart O.
(9)TransCanada must amend applicable sections of its O&M manual(s) to incorporate the inspection and reassessment intervals by CIS of both *special permit segment* 1 and *special permit segment* 2 at a frequency consistent with 49 CFR Part 192, Subpart O.
(10)The assessments of the *special permit segments* and the *special permit inspection area* using ILI must conform to the required maximum reassessment intervals specified in 49 CFR 192.939.
(11)TransCanada must schedule future reassessment dates for the *special permit inspection area* according to 49 CFR § 192.939 by adding the required time interval to the previous assessment date.
(12)TransCanada must ensure their damage prevention program incorporates the applicable best practices of the Common Ground Alliance
(CGA)within the *special permit inspection area* .
(13)TransCanada must give sufficient notice to the Director, PHMSA Eastern Region to enable observation of any or all special permit related activities in the *special permit inspection area* .
(14)TransCanada must determine and provide certification that all inspections and activities associated with this special permit will not impact or defer any of the operator's assessments for HCAs under 49 CFR part § 192, subpart O, particularly those associated with the most significant 50 percent.
(15)Within three months following approval of this special permit and annually thereafter, TransCanada must report the following to the Director, PHMSA Eastern Region:
(a)The economic benefits of the special permit to TransCanada. This should address both the costs avoided from not replacing the pipe and the added costs of the inspection program (required for the initial report only).
(b)In the first annual report, fully describe how the public benefits from energy availability. This should address the benefits of avoided disruptions as a consequence of pipe replacement and the benefits of maintaining system capacity. Subsequent reports must indicate any changes to this initial assessment.
(c)The number of new residences, other structures intended for human occupancy and public gathering areas built within the *special permit inspection area* .
(d)Any new integrity threats identified during the previous year and the results of any in-line inspections or direct assessments performed during the previous year in the *special permit inspection area* .
(e)Any reportable incident, any leak normally indicated on the DOT Annual Report and all repairs on the pipeline that occurred during the previous year in the *special permit inspection area* .
(f)On-going damage prevention initiatives affecting the *special permit inspection area* and a discussion on the success of the initiatives.
(g)Any mergers, acquisitions, transfer of assets, or other events affecting the regulatory responsibility of the company operating the pipeline.
(16)At least one CP pipe-to-soil test station must be located within each HCA with a maximum spacing between test stations of one-half mile within an HCA. In cases where obstructions or restricted areas prevent test station placement, the test station must be placed in the closest practical location. This requirement applies to any HCA within the *special permit inspection area* .
(17)If any annual test station readings within the *special permit inspection area* fall below 49 CFR part 192, subpart I requirements, remediation must occur within six months and include a CIS on each side of the affected test station to the next test station and identified corrosion system modifications to ensure corrosion control. If factors beyond TransCanada's control prevent the completion of remediation within six months, remediation must be completed as soon as practicable and a letter justifying the delay and providing the anticipated date of completion must be submitted to the Director, PHMSA Eastern Region not later than one year after the grant of special permit.
(18)Anomaly Evaluation and Repair:
(a)*General:* TransCanada shall account for ILI tool tolerance and corrosion growth rates in scheduled response times and repairs.
(b)*Dents:* TransCanada shall repair dents in the *special permit segments* and *special permit inspection area* in accordance with 49 CFR § 192.933.
(c)*Repair Criteria:* Repair criteria applies to anomalies located within the *special permit inspection area* when they have been excavated and investigated in accordance with 49 CFR 192.485 and 192.933 as follows: *(i) Special permit segments* —repair any anomaly with a failure pressure ratio
(FPR)less than or equal to 1.39 for pipe operating at a stress level up to 72 percent of SMYS and any anomaly greater than 50 percent of pipe wall thickness. *(ii) Special permit inspection area* —the response time must be in accordance with 49 CFR § 192, subpart O, the applicable edition of the American Society of Mechanical Engineers Standard B31.8S, *Managing System Integrity of Gas Pipelines* (ASME B31.8S) and TransCanada's IMP.
(d)*Response Time for ILI Results:* The following guidelines provide the required timing for excavation and investigation of anomalies based on ILI results. Reassessment by ILI will “reset” the timing for anomalies not already investigated and/or repaired. TransCanada must evaluate ILI data by using either the ASME Standard B31G, *Manual for Determining the Remaining Strength of Corroded Pipelines* (ASME B31G), or the Modified B31G (0.85dL) for calculating the predicted failure pressure ratio to determine anomaly responses. *(i) Special permit segment:* — *Immediate response:* FPR equal to or less than 1.1 or anomalies equal to and greater than 80 percent of pipe wall thickness; — *1-year response:* pipe operating at a stress level up to 72 percent of SMYS—FPR equal to or less than 1.39 and anomalies equal to or greater than 60 percent of pipe wall thickness; — *Scheduled reponse:* pipe operating at a stress level up to 72 percent of SMYS—FPR greater than 1.39 and anomalies less than 60 percent of pipe wall thickness. *(ii) Special permit inspection area:* The response time must be in accordance with 49 CFR § 192, subpart O, ASME B31.8S (applicable edition) and TransCanada's IMP.
(19)PHMSA may extend either or both of the original *special permit segments* to include contiguous segments of pipeline up to the limits of the *special permit inspection area* pursuant to the following conditions. TransCanada must:
(a)Provide at least 90 days advance written notice to the Director, PHMSA Eastern Region and PHMSA Headquarters of a requested extension of either or both of *special permit segment* 1 and *special permit segment* 2 based on an actual class location change and include a schedule of inspections and of any anticipated remedial actions. If PHMSA Headquarters makes a written objection before the effective date of the requested special permit segment (90 days from receipt of the above notice), the requested special permit segment extension does not become effective.
(b)Complete all inspections and remediation of the proposed special permit segment extension to the extent required of the original special permit segment.
(c)Apply all the special permit conditions and limitations included herein to all future extensions. Special Permit Limitations PHMSA has the sole authority to make all determinations on whether TransCanada has complied with the specified conditions. Should TransCanada fail to comply with any conditions of this special permit, or should PHMSA determine this special permit is no longer appropriate or that this special permit is inconsistent with pipeline safety, PHMSA may revoke this special permit and require TransCanada to comply with the regulatory requirements of 49 CFR 192.611. Authority: 49 U.S.C. 60118 (c)(1) and 49 CFR 1.53. Issued in Washington, DC on December 17, 2007. Jeffrey D. Wiese, Associate Administrator for Pipeline Safety. [FR Doc. E7-24776 Filed 12-20-07; 8:45 am] BILLING CODE 4910-60-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 35087] Canadian National Railway Company and Grand Trunk Corporation—Control—EJ&E West Company AGENCY: Surface Transportation Board, DOT. ACTION: Notice of Intent To Prepare an Environmental Impact Statement (EIS); Notice of Initiation of the Scoping Process, Including Notice of Availability of Draft Scope of Study for Environmental Impact Statement; Request for Comments on Draft Scope; and Notice of Open-House Meetings. SUMMARY: On October 30, 2007, Canadian National Railway Corporation
(CNR)and Grand Trunk Corporation (GTC), a noncarrier holding company through which CNR controls its U.S. rail subsidiaries, filed an application with the Surface Transportation Board (Board) seeking the Board's approval of the acquisition of control of EJ&E West Company (EJ&EW), a wholly owned noncarrier subsidiary of Elgin, Joliet and Eastern Railway Company (EJ&E). In this document, the action before the Board will be referred to as the proposal or the proposed acquisition and CNR and GTC will be referred to collectively as CN or as Applicants. CN is one of Canada's two major railroads. It extends from Halifax, Nova Scotia, to Vancouver and Prince Rupert, British Columbia. EJ&E is a Class II railroad that currently operates over 198 miles of track in northeastern Illinois and northwestern Indiana, consisting primarily of an arc of roughly 190 miles around Chicago, IL, extending from Waukegan, IL, southwards to Joliet, IL, then eastward to Gary, IN, and then northwest to South Chicago along Lake Michigan. EJ&E provides rail service to approximately 100 customers, including steel mills, coal utilities, plastics and chemical producers, steel processors, distribution centers, and scrap processors. Applicants' proposed acquisition of the EJ&E would shift rail traffic currently moving over CN's rail lines inside the EJ&E arc in Chicago to the EJ&E, which traverses the suburbs generally to the west and south of Chicago. Rail traffic on CNR lines inside the EJ&E arc would generally decrease. The decreases in rail traffic would be offset by increases in the number of trains operating on the EJ&E rail line outside of Chicago (approximately 15-27 more trains would operate on various segments of the EJ&E). Applicants also proposed to construct six new rail connections and approximately 19 miles of new sidings/double tracking. Applicants give three primary reasons for seeking approval of the proposed acquisition: Improved rail operations in the Chicago area; availability to EJ&E's Kirk Yard in Gary, Indiana, and other smaller facilities in Joliet, Illinois, and Whiting, Indiana; and improved service to companies dealing in steel, chemicals, and petrochemicals, as well as Chicago area utilities. To thoroughly assess the potential environmental impacts that may result from the proposed acquisition, the Board, through its Section of Environmental Analysis (SEA), will prepare an Environmental Impact Statement (EIS). The purpose of this Notice is to give all interested persons the opportunity to actively participate in the forthcoming environmental review, the first step of which is “scoping.” Scoping is an open process for determining the range of issues that should be examined and assessed in the EIS. In addition to announcing that the Board will prepare an EIS for this proceeding, this Notice also announces the availability of a draft scope of study, requests comments on the draft scope of study, and presents the schedule of Open-House meetings to be held in the project area. DATES, TIMES, AND LOCATIONS: Scoping Open House meetings will be held at the dates and locations listed below. Each location will have an afternoon and an evening session at the following times: The afternoon Open House is scheduled from 1p.m. to 4 p.m. and the evening Open House is scheduled from 6 p.m. to 8 p.m. There is no need to attend more than one meeting, but all are welcome to attend as many meetings as desired. Date Location January 8, 2008 Crown Plaza, Salon A/C Room, 510 E. Route 83, Mundelein, IL 60060, 847-949-5100. January 9, 2008 Makray Memorial Golf Club, Grand Ballroom, 1010 S. NW., Highway, Barrington, IL 60010, 847-381-6500. January 10, 2008 Jacob Henry Mansion, Ballroom, 15 South Richards Street, Joliet, IL 60433, 815-722-2465. January 15, 2008 Holiday Inn, Willow Room, 500 Holiday Plaza Drive, Matteson, IL, 708-747-3500. January 16, 2008 Genesis Convention Center, Gary Lakes Room, One Genesis Center Plaza, Gary, IN 46402, 219-882-5505. January 17, 2008 St. Andrews Golf Club, St. Andrews Room, 3N441 Route 59, West Chicago, IL 60185, 630-231-3100. January 22, 2008 Crowne Plaza Chicago-Metro, Ballroom, 733 West Madison, Chicago, IL 60661, 312-602-2106. The public scoping meetings will be informal meetings in an open house format. Interested persons may ask questions about the proposal and the Board's environmental review process, and discuss the potential environmental effects of the proposal with SEA staff. In keeping with the open house format of the scoping meetings, there will be no formal presentations made by the agency. Rather, SEA staff members will be available to answer questions and receive comments individually. A court reporter will be available for those persons who wish to submit oral comments. Writing stations will be available to those who wish to submit written comments at the Open House. SEA staff will be available to listen and make notes of comments. Additional copies of the draft scope will be available at all Open House meetings. The meeting locations comply with the Americans with Disabilities Act. Persons who need special accommodations should telephone SEA's toll-free number for the project at 1-800-347-0689. Please leave a message and someone will return your call promptly. SEA will issue a final Scope of Study shortly after the close of the scoping comment period. Written comments on the draft scope are due February 1, 2008. Directions on how to submit comments of the draft scope are set forth below. *Summary of the Board's Review Processes for this Proceeding:* The Board will review the proposed transaction through two parallel but distinct processes:
(1)The economic process that examines the competitive, transportation, and economic implications of the acquisition on the national rail system, and
(2)the environmental process conducted by SEA that assesses the potential environmental effects of the proposed acquisition on the human and natural environment through preparation of an EIS. Interested persons may participate in either, or both, processes, but if interests are focused on potential impacts on communities, including grade crossing safety, air emissions, emergency vehicle access, noise, vibration, and other similar environmental issues, then the appropriate forum is SEA's environmental review process. *Environmental Review Process:* The National Environmental Policy Act
(NEPA)process is intended to assist the Board and the public in identifying and assessing the potential environmental consequences of a proposed action before a decision on that proposed action is made. SEA is responsible for ensuring that the Board complies with NEPA and related environmental statues. The first stage of the EIS process is scoping. Scoping is an open process for determining the scope of environmental issues to be addressed in the EIS and their potential for significance. SEA has developed a draft scope of study for the EIS for public review and comment, which incorporates the issues and concerns raised in the comment letters SEA has received thus far. SEA is soliciting written comments on this draft scope of study. After the close of the comment period on the draft scope of study, SEA will review all comments received and then issue a final scope of study (final scope) for the EIS. Following the issuance of the final scope, SEA will prepare a Draft EIS
(DEIS)for the project. The DEIS will address those environmental issues and concerns identified during the scoping process. It will also contain SEA's preliminary recommendations for environmental mitigation measures. Upon its completion, the DEIS will be made available for public and agency review and comment for 45 days. SEA will then prepare a Final EIS
(FEIS)that will address the comments on the DEIS from the public and agencies. Then, in reaching its decision in this case, the Board will take into account the DEIS, the FEIS, the public comments, and the environmental analysis and recommendations, including any environmental mitigation proposed by SEA. The Procedural Schedule set for this proceeding in Decision No. 2 establishes the date of April 25, 2008 for the Board's proposed final decision. This date will be extended if additional time is needed to complete the full EIS process. *Submitting Comments on the Draft Scope:* SEA encourages broad participation in the EIS process. All interested agencies, organizations, communities, and members of the public are invited to participate in the scoping process by reviewing and commenting on the draft scope of the EIS. Written comments on the draft scope of the EIS may be submitted to the Board within the comment period, as described below, no later than February 1, 2008. To file comments on the draft scope and participate in the environmental review process, it is not necessary to be a Party of Record (as detailed in Decision 2 1 ). If you wish to submit written comments regarding the attached proposed draft scope, please send your comments to: 1 Board Decision No. 2 was issued November 26, 2007. Surface Transportation Board, 395 E Street, SW., Washington, DC 20423, Attention: Phillis Johnson-Ball, Environmental Filing, STB Finance Docket No. 35087. Environmental comments may also be filed electronically on the Board's Web site, *http://www.stb.dot.gov,* by clicking on the “E_FILING” link. Please refer to STB Finance Docket No. 35087 in all correspondence, including E-filings, addressed to the Board. Following these directions will help ensure that your comments are considered in the environmental review process for this proposed acquisition. SEA will add your name to its mailing list for distribution of the final scope of the EIS, the DEIS, and Final EIS (FEIS). Interested persons who wish to receive individual copies of Board decisions, orders, and notices served in this proceeding but do not want to be a party of record are encouraged to contact the Board's copy contractor as soon as possible: Document Solutions, 9332 Annapolis Rd., Suite 103, Lanham, MD 20706, telephone number
(202)306-4004, or e-mail address: *asapdc@verizon.net* . All Board decisions, orders, and notices in this proceeding will also be available on the Board's Web site at *http://www.stb.dot.gov* under “E-Library,” and “Decisions & Notices” or “Filings.” FOR FURTHER INFORMATION CONTACT: Phillis Johnson-Ball, Section of Environmental Analysis, Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001, 1-800-347-0689 (project information line) . Assistance for the hearing impaired is available through the Federal Information Relay Service
(FIRS)at 1-800-877-8339. The Web site for the Surface Transportation Board is *http://www.stb.dot.gov* . By the Board, Victoria J. Rutson, Chief, Section of Environmental Analysis. Vernon A. Williams, Secretary. Appendix A Draft Scope of the EIS Proposed Action and Definition of Alternatives Applicants' proposed acquisition of the EJ&E would result in shifting of rail traffic from rail lines in Chicago to rail lines on the EJ&E. Rail traffic on CNR lines inside the EJ&E arc would generally decrease. These decreases in rail traffic would be offset by substantial increases in the number of trains operated on the EJ&EW line outside Chicago. The increase in train traffic on the EJ&E would vary from approximately 15 to 27 additional trains per day. Applicants state that the proposed transaction would not impair CNR's ability to handle commuter trains, passenger trains, or trackage/haulage trains currently operating on its lines. Finally, on the integrated CNR/EJ&EW system, four train pairs would be added to EJ&E terminals: Three inbound and three outbound switch trains at Kirk Yard, and one inbound and one outbound switch train at East Joliet Yard. Applicants' projections for the changes in rail operations as a result of the acquisition are set forth in the Application, available on the Board's Web site. The proposed transaction also includes construction of seven rail connections, siding extensions, and installation of second track (double-tracking). Reasonable or feasible alternatives that will be evaluated in the EIS are
(1)approval of the transaction as proposed;
(2)disapproval of the proposed transaction in whole (No-Action alternative); or
(3)approval of the proposed transaction with conditions, including environmental mitigation conditions. 2 2 The Board has broad authority to impose conditions in railroad control transactions under 49 U.S.C. 11324 (c). However, the Board's power to impose conditions is not limitless: there must be a sufficient nexus between the condition imposed and the transaction before the agency, and the condition imposed must be reasonable. *See United States* v. *Chesapeake & O. Ry.* , 426 U.S. 500, 514-15 (1976); *Consolidated Rail Corp.* v. *ICC,* 29 F.3d 706, 714 (D.C. Cir. 1994). If deemed necessary, alternative configurations of proposed connections may be considered. Proposed modifications to the proposed transaction as requested by other parties in their inconsistent or responsive applications will also be addressed in the EIS. Environmental Impact Analysis Analysis in the EIS will address proposed activities and their potential environmental impacts, as appropriate. Existing rail operations are the baseline from which the potential environmental impacts of the proposed transaction will be evaluated. SEA will evaluate only the potential environmental impacts of operational and physical changes that are directly related to the proposed transaction. SEA will not consider environmental impacts relating to existing rail operations and existing railroad facilities. 3 3 In proceedings similar to this proposed acquisition, the Board's practice consistently has been to mitigate only those environmental impacts that result directly from the transaction. The Board, like its predecessor, the Interstate Commerce Commission, has not imposed mitigation to remedy preexisting conditions such as those that might make the quality of life in a particular community better, but are not a direct result of the merger (i.e., congestion associated with the existing rail line traffic, or the traffic of other railroads). The scope of the analysis will include the following types of activities: 1. Anticipated changes in level of operations on rail lines (e.g., an increase in average trains per day) for those rail line segments that meet or exceed the Board's thresholds for environmental review in 49 CFR 1105.7. 2. Proposed changes in activity at rail yards to the extent such changes may exceed the Board's thresholds for environmental analysis in 49 CFR 1105.7. 3. Proposed physical construction of improved rail connections, siding extensions, and installation of second rail track (double-tracking). Environmental Impact Categories The EIS will address potential impacts on the environment that will include the areas of safety, transportation systems, land use, energy, air quality, noise, biological resources, water resources, socioeconomic effects related to physical changes in the environment, environmental justice, and cultural and historic resources, as described below. 1. Safety The EIS will: A. Consider at-grade rail crossing accident probability and safety factors. This will generally include grade crossings with average daily traffic levels of 2,500 or more trips. Accident probability analysis will address the potential for rail and vehicle accidents. B. Consider increased probability of train accidents and derailments due to increased traffic on a system-wide basis. C. Address potential effects of increased freight traffic on commuter and intercity passenger service operations. D. Discuss the potential environmental impacts of the proposed transaction on public health and safety with respect to the transportation of hazardous materials, including:
(1)Changes in the types of hazardous materials and quantities transported or re-routed;
(2)Nature of the hazardous materials being transported;
(3)Applicants' safety practices and protocols;
(4)Applicants' relevant safety data on derailments, accidents and hazardous materials spills;
(5)Contingency plans to address accidental spills;
(6)Probability of increased spills given railroad safety statistics and applicable Federal Railroad Administration requirements; and
(7)Location and types of hazardous substances at hazardous waste sites or hazardous materials spills on the right-of-way of any proposed connection or rail line abandonment site. E. Address local truck traffic increases attributable to increased intermodal activities. F. Address safety issues associated with the integration of differing rail operating systems and procedures. 2. Transportation Systems The EIS will: A. Describe system-wide and localized effects of the proposed operational changes, construction of improved connections, siding extensions, and installation of second track, and evaluate potential impacts on commuter rail service and intercity passenger (Amtrak) service. B. Evaluate those commuter rail line segments that would experience increased freight traffic as a result of the proposed transaction for the capability of the rail line segments to accommodate the reasonably foreseeable addition of commuter trains. C. Discuss potential effects on proposed passenger rail service where such future rail operation inception or expansion is reasonably foreseeable (i.e., where capital improvements are planned, approved, and funded). D. Discuss potential diversions of freight traffic from trucks to rail and from rail to trucks, as appropriate. E. Address vehicular delays at rail crossings and intermodal facilities due to increases in rail-related operations as a result of the proposed transaction. Estimates of typical delays at grade crossings will be made for crossings that have vehicle traffic levels of 2,500 ADT or more and that exceed train traffic increases of three trains per day for non-attainment areas or eight trains per day for attainment areas. F. Discuss potential effects of increased train traffic on railroad bridges that cross navigation channels to the extent that such bridges allow only one mode of transportation to pass at a time. 3. Land Use and Socioeconomics The EIS will: A. Describe whether the proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) are consistent with existing land use plans. B. Describe environmental impacts associated with the proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) as to acres of prime farmland potentially removed from production. C. Discuss consistency of proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) with applicable zoning requirements. D. Address socioeconomic issues related to changes in the physical environment as a result of the proposed transaction. E. Propose mitigative measures to minimize or eliminate potential project adverse impacts to social and economic resources, as appropriate. 4. Energy The EIS will: A. Describe the potential environmental impact of the proposed transaction on transportation of energy resources and recyclable commodities to the extent that such information is available. B. Evaluate potential changes in fuel use arising from the transaction. 5. Air Quality The EIS will: A. Evaluate air emissions increases where the proposed post-acquisition activity would exceed the Board's environmental thresholds in 49 CFR 1105.7(e)(5)(i), for air quality nonattainment areas as designated under the Clean Air Act. Thresholds are as follows since the Chicago Metropolitan area is a nonattainment area: 4 4 Nonattainment areas are areas that do not comply with one or more ambient air quality standards. Ozone non-attainment areas are further classified as Marginal, Moderate, Serious, Severe, or Extreme Areas. These classifications are based on the level, in parts per million (ppm), of ozone measured for each area. Moderate areas are defined as .092 to .107 ppm, Serious Areas are defined as containing 0.107 ppm to 0.120 ppm, and Severe Areas are defined as containing 0.120 to 0.187 ppm. The Chicago area is currently classified as moderate non-attainment for ozone and non-attainment for PM <sup>2.5</sup>
(1)A 50 percent increase in rail traffic (measured in gross-ton miles annually) or an increase of three trains a day on any segment of rail line affected by the proposal; or
(2)An increase in rail yard activity of at least 20 percent or more in carload activity (rail car switching and block swapping).
(3)Increase in truck traffic greater than 10 percent of ADT or 50 trucks per day. B. Discuss the net increase in emissions from increased railroad operations associated with the proposed transaction. Net emissions changes will be calculated for counties with projected transaction-related emissions increases of: • 100 tons per year or more of any pollutant C. Discuss the following information regarding the anticipated transportation of ozone depleting materials (such as nitrogen oxide and freon):
(1)Materials and quantity;
(2)Applicants' safety practices;
(3)Applicants' safety record (to the extent available) on derailments, accidents, and spills;
(4)Contingency plans to address accidental spills; and
(5)Likelihood of an accidental release of ozone depleting materials in the event of a collision or derailment. D. Discuss potential air emissions increases from vehicle delays at rail crossings where the rail crossing is projected to experience an increase in rail traffic over the thresholds described above in Section 5(A) for attainment and maintenance areas, and in Section 5(B) for non-attainment areas, and which have an average daily vehicle traffic level above 2,500. Such increases will be factored into the net emissions estimates for the affected area. E. Examine local impacts from the transaction caused by increases or decreases in diesel particulate emissions. 6. Noise and Vibration The EIS will: A. Describe potential noise and vibration impacts of the proposed transaction for those areas that exceed the Board's environmental thresholds identified in Section 5A of the Air Quality discussion. B. Identify whether the proposed transaction-related increases in rail traffic will cause an increase to a noise level of 65 decibels L <sup>dn</sup> or greater. If so, an estimate of the number of sensitive receptors (e.g., schools and residences) within such areas will be made. C. Identify transaction-related activities that have the potential to result in an increase in noise level of 3 decibels L <sup>dn</sup> or more which occur in areas exposed to less than 65 dBA L <sup>dn</sup> . D. Assess potential vibration effects based on Federal Transit Administration
(FTA)vibration methodology in areas where it appears there may be vibration sensitive receptors within or immediately adjacent to the railroad right of way. 7. Biological Resources The EIS will: A. Discuss the potential environmental impacts of proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) on federal endangered or threatened species or designated critical habitats. B. Discuss the effects of proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) on wildlife sanctuaries or refuges, and national or state parks or forests. 8. Water Resources The EIS will: A. Discuss whether potential impacts from proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) may be inconsistent with applicable federal or state water quality standards. B. Discuss whether permits may be required under Sections 404 or 402 of the Clean Water Act (33 U.S.C. 1344) for any proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking), and whether any such projects have the potential to encroach upon any designated wetlands or 100-year floodplains. 9. Environmental Justice The EIS will: A. Report on the demographics in the immediate vicinity of any area where major activity such as construction of improved rail connections, siding extensions, and installation of second track (double-tracking) is proposed. B. Report on the demographics in the vicinity of rail lines with projected rail traffic increases above eight trains per day. C. Evaluate whether such activities potentially have a disproportionately high and adverse health effect or environmental impact on any minority or low-income group. 10. Cultural and Historic Resources The EIS will: A. Address potential impacts from proposed construction of improved rail connections, siding extensions, and installation of second track (double-tracking) on cultural and historic resources that are on, or immediately adjacent to, a railroad right-of-way. 11. Secondary and Cumulative Effects The EIS will: A. Address secondary and cumulative effects of environmental impacts that have regional or system-wide ramifications. This analysis will be done for environmental impacts that warrant such analysis given the context and scope of the proposed transaction. The environmental effects to be analyzed include air quality and energy. B. Evaluate secondary and cumulative effects, as appropriate, for other projects or activities that relate to the proposed transaction, where information is provided to the Board that describes
(1)those other projects or activities,
(2)their interrelationship with the proposed transaction,
(3)the type and severity of the potential environmental impacts; and SEA determines that there is the likelihood of significant environmental impacts. This information must be provided to the Board within sufficient time to allow for review and analysis within the schedule for the preparation of the EIS. C. Discuss the potential environmental impacts of construction or facility modification activities within railroad-owned property affected by the proposed merger, and additional environmental impacts related to the proposed transaction but not subject to Board approval, in order to identify secondary and cumulative impacts. [FR Doc. E7-24835 Filed 12-20-07; 8:45 am] BILLING CODE 4915-00-P 72 245 Friday, December 21, 2007 CORRECTIONS Doominique DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0214; Directorate Identifier 2007-NM-224-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model 717-200 Airplanes Correction In proposed rule, document E7-22727 beginning on page 65478 in the issue of Wednesday, November 21, 2007, make the following correction: § 39.13 [Corrected] On page 65480, in § 39.13, in the second column, in the third line, “appropriate” should read “appropriate action”. [FR Doc. Z7-22727 Filed 12-20-07; 8:45 am] BILLING CODE 1505-01-D 72 245 Friday, December 21, 2007 Notices Part II Department of State Department of Commerce National Oceanic and Atmospheric Administration New and Revised Conservation and Management Measures and Resolutions for Antarctic Marine Living Resources Under the Auspices of CCAMLR; Notice DEPARTMENT OF STATE DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE04 New and Revised Conservation and Management Measures and Resolutions for Antarctic Marine Living Resources Under the Auspices of CCAMLR AGENCIES: Office of Ocean Affairs, Department of State and National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice. SUMMARY: At its Twenty-Sixth Meeting in Hobart, Tasmania, from October 22 to November 2, 2007, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), of which the United States is a member, adopted conservation and management measures and resolutions, pending countries' approval, pertaining to fishing in the CCAMLR Convention Area. All the measures were agreed upon in accordance with Article IX of the Convention for the Conservation of Antarctic Marine Living Resources. Measures adopted restrict overall catches of certain species of finfish, squid, krill and crabs, restrict fishing in certain areas, restrict use of certain fishing gear, specify implementation and inspection obligations supporting the Catch Documentation Scheme of Contracting Parties, and promote compliance with CCAMLR measures by non-Contracting Party vessels. This notice includes the full text of the new and revised conservation measures adopted at the Twenty-Sixth meeting of CCAMLR. This notice also includes a listing of conservation measures that carry over from last year without change. The full text of these measures was published in the **Federal Register** on January 29, 2007. NMFS suggests that the public view these measures along with the measures contained in this Federal notice for a complete listing of all the measures adopted by CCAMLR at its recent meeting. The full text of all the measures adopted by CCAMLR can also be found on CCAMLR's Web site— *http://www.ccamlr.org* . This notice, therefore, together with the U.S. regulations referenced under the SUPPLEMENTARY INFORMATION , provides a comprehensive register of all current U.S. obligations under CCAMLR. DATES: Persons wishing to comment on the measures or desiring more information should submit written comments by January 22, 2008. FOR FURTHER INFORMATION CONTACT: Robert Gorrell, Office of Sustainable Fisheries, Room 13463, 1315 East-West Highway, SSMC3, NMFS, Silver Spring, MD 20910; tel: 301-713-2341; fax 301-713-1193; e-mail *Robert.Gorrell@noaa.gov.* SUPPLEMENTARY INFORMATION: Individuals interested in CCAMLR should also see 15 CFR Chapter III—International Fishing and Related Activities, Part 300—International Fishing Regulations, Subpart A—General; Subpart B—High Seas Fisheries; and Subpart G—Antarctic Marine Living Resources, for other regulatory measures related to conservation and management in the CCAMLR Convention area. Subpart B notes the requirements for high seas fishing vessel licensing. Subparts A and G describe the process for regulating U.S. fishing in the CCAMLR Convention area, which NMFS uses to implement CCAMLR Conservation Measures that are not expected to change from year to year. The regulations in Subpart G include sections on: Purpose and scope; Definitions; Relationship to other treaties, conventions, laws, and regulations; Procedure for according protection to CCAMLR Ecosystem Monitoring Program Sites; Scientific Research; Initiating a new fishery; Exploratory fisheries; Reporting and recordkeeping requirements; Vessel and gear identification; Gear disposal; Mesh size; Harvesting permits; Scientific observers; Dealer permits and preapproval; Appointment of a designated representative; Requirements for a vessel monitoring system; Prohibitions; Facilitation of enforcement and inspection; and Penalties. Review of existing conservation measures and resolutions (the date in parenthesis indicates the last year in which the measure was amended by CCAMLR): The Commission noted that the following conservation measures will lapse on 30 November 2007: 32-09 (2006), 33-02 (2006), 33-03 (2006), 41-01 (2006), 41-02 (2006), 41-04 (2006), 41-05 (2006), 41-06 (2006), 41-07 (2006), 41-08 (2006), 41-09 (2006), 41-10 (2006), 41-11 (2006), 42-02 (2006), 52-01 (2006), 52-02
(2006)and 61-01 (2006). Conservation Measure 42-01
(2006)will lapse on 14 November 2007. All of these conservation measures dealt with general fishery matters for the 2006/07 season and are replaced by new measures mentioned below. The Commission agreed that Conservation Measure 91-03
(2004)be rescinded to delete the Seal Islands as CCAMLR Ecosystem Monitoring Program Protected Sites. The following unchanged conservation measures and resolutions will remain in force in 2007/08: *Compliance:* 10-01 (1998), 10-03 (2005), 10-05 (2006), 10-06 (2006), 10-07
(2006)and 10-08 (2006). *General fishery matters:* 21-01 (2006), 21-02 (2006), 22-01 (1986), 22-02 (1984), 22-03 (1990), 22-04 (2006), 22-05 (2006), 23-01 (2005), 23-02 (1993), 23-03 (1991), 23-04 (2000), 23-05 (2000), 24-01 (2005), 24-02 (2005), 25-03 (2003), and 26-01 (2006). *Fishery regulations:* 31-01 (1986), 32-01 (2001), 32-02 (1998), 32-03 (1998), 32-04 (1986), 32-05 (1986), 32-06 (1985), 32-07 (1999), 32-08 (1997), 32-10 (2002), 32-11 (2002), 32-12 (1998), 32-13 (2003), 32-14 (2003), 32-15 (2003), 32-16 (2003), 32-17 (2003), 32-18 (2006), 33-01 (1995), 41-03 (2006), and 51-02 (2006). *Protected areas:* 91-01
(2004)and 91-02 (2004). *Resolutions:* 7/IX, 10/XII, 14/XIX, 15/XXII, 16/XIX, 17/XX, 18/XXI, 19/XXI, 20/XXV, 21/XXIII, 22/XXV, 23/XXIII, and 25/XXV. The full text of these unchanged conservation measures and resolutions were published in the January 29, 2007 **Federal Register** (72 FR 4068). The Commission revised the following conservation measures: *Compliance:* 10-02
(2006)and 10-04
(2006)were revised as— CM 10-02
(2007)1 2 3 Licensing and inspection obligations of Contracting Parties with regard to their flag vessels operating in the Convention Area CM 10-04
(2007)Automated satellite-linked Vessel Monitoring Systems
(VMS)*General fisheries matters:* 21-03 (2006), 23-06
(2005)and 25-02
(2005)were revised as— CM 21-03
(2007)Notifications of intent to participate in a fishery for *Euphausia superba* CM 23-06
(2007)Data Reporting System for *Euphausia superba* Fisheries CM 25-02
(2007)1 2 3 Minimisation of the incidental mortality of seabirds in the course of longline fishing or longline fishing research in the Convention Area *Fishery regulations:* 51-01
(2006)and 51-03
(2006)were revised as— Krill: CM 51-01
(2007)Precautionary catch limitations on *Euphausia superba* in Statistical Subareas 48.1, 48.2, 48.3 and 48.4 Krill: CM 51-03
(2007)Precautionary catch limitation on *Euphausia superba* in Statistical Division 58.4.2 In addition, the Commission adopted 20 new measures and one new resolution: *General fisheries matters:* Gear Regulations: CM 22-06
(2007)1 2 3 Bottom fishing in the Convention Area *Fishery regulations:* General Measures: CM 31-02
(2007)1 2 3 General measure for the closure of all fisheries Fishing Seasons, Closed Areas and Prohibition of Fishing: CM 32-09
(2007)Prohibition of directed fishing for *Dissostichus* spp. except in accordance with specific conservation measures in the 2007/08 season By-catch Limits: CM 33-02
(2007)Limitation of by-catch in Statistical Division 58.5.2 in the 2007/08 season By-catch Limits: CM 33-03
(2007)1 2 3 Limitation of by-catch in new and exploratory fisheries in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-01
(2007)1 2 3 General measures for exploratory fisheries for *Dissostichus* spp. in the Convention Area in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-02
(2007)Limits on the fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3 in the 2007/08 and 2008/09 seasons Finfish Fisheries—Toothfish: CM 41-04
(2007)Limits on the exploratory fishery for *Dissostichus* spp. in Statistical Subarea 48.6 in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-05
(2007)Limits on the exploratory fishery for *Dissostichus* spp. in Statistical Division 58.4.2 in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-06
(2007)Limits on the exploratory fishery for *Dissostichus* spp. on Elan Bank (Statistical Division 58.4.3a) outside areas of national jurisdiction in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-07
(2007)Limits on the exploratory fishery for *Dissostichus* spp. on BANZARE Bank (Statistical Division 58.4.3b) outside areas of national jurisdiction in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-08
(2007)Limits on the fishery for *Dissostichus eleginoides* in Statistical Division 58.5.2 in the 2007/08 and 2008/09 seasons Finfish Fisheries—Toothfish: CM 41-09
(2007)Limits on the exploratory fishery for *Dissostichus* spp. in Statistical Subarea 88.1 in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-10
(2007)Limits on the exploratory fishery for *Dissostichus* spp. in Statistical Subarea 88.2 in the 2007/08 season Finfish Fisheries—Toothfish: CM 41-11
(2007)Limits on the exploratory fishery for *Dissostichus* spp. in Statistical Division 58.4.1 in the 2007/08 season Finfish Fisheries—Icefish: CM 42-01
(2007)Limits on the fishery for *Champsocephalus gunnari* in Statistical Subarea 48.3 in the 2007/08 season Finfish Fisheries—Icefish: CM 42-02
(2007)Limits on the fishery for *Champsocephalus gunnari* in Statistical Division 58.5.2 in the 2007/08 season Crustacean Fisheries—Crab: CM 52-01
(2007)Limits on the fishery for crab in Statistical Subarea 48.3 in the 2007/08 season Crustacean Fisheries—Crab: CM 52-02
(2007)Experimental harvest regime for the crab fishery in Statistical Subarea 48.3 in the 2007/08 season Mollusc Fisheries—Squid: CM 61-01
(2007)Limits on the exploratory fishery for *Martialia hyadesi* in Statistical Subarea 48.3 in the 2007/08 season 1 Except for waters adjacent to the Kerguelen Islands 2 Except for waters adjacent to the Crozet Islands 3 Except for waters adjacent to the Prince Edward Islands. *Resolutions:* Resolution 26/XXVI (International Polar Year/Census of Antarctic Marine Life) For further information, see the CCAMLR Web site at *http://www.ccamlr.org* under Publications for the Schedule of Conservation Measures in Force (2007/2008), or contact the Commission at the CCAMLR Secretariat, P.O. Box 213, North Hobart, Tasmania 7002, Australia. Tel:
(61)3-6210-1111). Conservation Measures and Resolutions Adopted at CCAMLR-XXVI Conservation Measure 10-02
(2007)1 2 Licensing and inspection obligations of Contracting Parties with regard to their flag vessels operating in the Convention Area (Species: all; Area: all; Season: all; Gear: all) 1. Each Contracting Party shall prohibit fishing by its flag vessels in the Convention Area except pursuant to a licence 3 that the Contracting Party has issued setting forth the specific areas, species and time periods for which such fishing is authorised and all other specific conditions to which the fishing is subject to give effect to CCAMLR conservation measures and requirements under the Convention. 2. A Contracting Party may only issue such a licence to fish in the Convention Area to vessels flying its flag, if it is satisfied of its ability to exercise its responsibilities under the Convention and its conservation measures, by requiring from each vessel, *inter alia* , the following:
(i)Timely notification by the vessel to its Flag State of exit from and entry into any port;
(ii)Notification by the vessel to its Flag State of entry into the Convention Area and movement between areas, subareas/divisions;
(iii)Reporting by the vessel of catch data in accordance with CCAMLR requirements;
(iv)Reporting, where possible as set out in Annex 10-02/A by the vessel of sightings of fishing vessels 4 in the Convention Area;
(v)Operation of a VMS system on board the vessel in accordance with Conservation Measure 10-04;
(vi)Noting the International Management Code for the Safe Operation of Ships and for Pollution Prevention (International Safety Management Code), from 1 December 2009:
(a)Adequate communication equipment (including MF/HF radio and carriage of at least one 406MHz EPIRB) and trained operators on board. Wherever possible, vessels should be fitted with Global Maritime Distress and Safety System (GMDSS) equipment;
(b)Sufficient immersion survival suits for all on board;
(c)Adequate arrangements to handle medical emergencies that may arise in the course of the voyage;
(d)Reserves of food, fresh water, fuel and spare parts for critical equipment to provide for unforseen delays and besetment;
(e)An approved 5 Shipboard Oil Pollution Emergency Plan (SOPEP) outlining marine pollution mitigation arrangements (including insurance) in the event of a fuel or waste spill. 3. Each Contracting Party shall provide to the Secretariat within seven days of the issuance of each licence the following information about licences issued: • Name of the vessel • Time periods authorised for fishing (start and end dates) • Area(s), subareas or divisions of fishing • Species targeted • Gear used 4. Each Contracting Party shall provide to the Secretariat within seven days of the issuance of each licence the following information about licences issued:
(i)Name of fishing vessel (any previous names if known) 6 , registration number 7 , IMO number (if issued), external markings and port of registry;
(ii)The nature of the authorisation to fish granted by the Flag State, specifying time periods authorised for fishing (start and end dates), area(s) of fishing, species targeted and gear used;
(iii)Previous flag (if any); 6
(iv)International Radio Call Sign;
(v)Name and address of vessel's owner(s), and any beneficial owner(s) if known;
(vi)Name and address of licence owner (if different from vessel owner(s));
(vii)Type of vessel;
(viii)Where and when built;
(ix)Length (m);
(x)Colour photographs of the vessel which shall consist of: • One photograph not smaller than 12 x 7 cm showing the starboard side of the vessel displaying its full overall length and complete structural features; • One photograph not smaller than 12 x 7 cm showing the port side of the vessel displaying its full overall length and complete structural features; • One photograph not smaller than 12 x 7 cm showing the stern taken directly from astern;
(xi)Where applicable, in accordance with Conservation Measure 10-04, details of the implementation of the tamper-proof requirements of the satellite monitoring device installed on board. 5. Each Contracting Party shall, to the extent practicable, also provide to the Secretariat at the same time as submitting information in accordance with paragraph 4, the following additional information in respect to each fishing vessel licensed:
(i)Name and address of operator, if different from vessel owners;
(ii)Names and nationality of master and, where relevant, of fishing master;
(iii)Type of fishing method or methods;
(iv)Beam (m);
(v)Gross registered tonnage;
(vi)Vessel communication types and numbers (INMARSAT A, B and C numbers);
(vii)Normal crew complement;
(viii)Power of main engine or engines (kW);
(ix)Carrying capacity (tonnes), number of fish holds and their capacity (m 3 );
(x)Any other information in respect of each licensed vessel they consider appropriate (e.g. ice classification) for the purposes of the implementation of the conservation measures adopted by the Commission. 6. Contracting Parties shall communicate without delay to the Secretariat any change to any of the information submitted in accordance with paragraphs 3, 4 and 5. 7. The Executive Secretary shall place a list of licensed vessels on the public section of the CCAMLR Web site. 8. The licence or an authorised copy of the licence must be carried by the fishing vessel and must be available for inspection at any time by a designated CCAMLR inspector in the Convention Area. 9. Each Contracting Party shall verify, through inspections of all of its fishing vessels at the Party's departure and arrival ports, and where appropriate, in its Exclusive Economic Zone, their compliance with the conditions of the licence as described in paragraph 1 and with the CCAMLR conservation measures. In the event that there is evidence that the vessel has not fished in accordance with the conditions of its licence, the Contracting Party shall investigate the infringement and, if necessary, apply appropriate sanctions in accordance with its national legislation. 10. Each Contracting Party shall include in its annual report pursuant to paragraph 12 of the CCAMLR System of Inspection, steps it has taken to implement and apply this conservation measure; and may include additional measures it may have taken in relation to its flag vessels to promote the effectiveness of CCAMLR conservation measures. 1 Except for waters adjacent to the Kerguelen and Crozet Islands. 2 Except for waters adjacent to the Prince Edward Islands. 3 Includes permit and authorisation. 4 Including support vessels such as reefer vessels. 5 Shipboard Oil Pollution Emergency Plan to be approved by the Maritime Safety Authority of the Flag State. 6 In respect of any vessel reflagged within the previous 12 months, any information on the details of the process of (reasons for) previous deregistration of the vessel from other registries, if known. 7 National registry number. Annex 10-02/A Reporting of Vessel Sightings 1. In the event that the master of a licensed fishing vessel sights a fishing vessel 4 within the Convention Area, the master shall document as much information as possible on each such sighting, including:
(a)Name and description of the vessel;
(b)Vessel call sign;
(c)Registration number and the Lloyds/IMO number of the vessel;
(d)Flag State of the vessel;
(e)Photographs of the vessel to support the report;
(f)Any other relevant information regarding the observed activities of the sighted vessel. 2. The master shall forward a report containing the information referred to in paragraph 1 to their Flag State as soon as possible. The Flag State shall submit to the Secretariat any such reports that meet the criteria of paragraph 3 of Conservation Measure 10-06 or paragraph 8 of Conservation Measure 10-07. Conservation Measure 10-04
(2007)Automated Satellite-Linked Vessel Monitoring Systems
(VMS)(Species: all; Area: all; Season: all; Gear: all) The Commission, *Recognising* that in order to promote the objectives of the Convention and further improve compliance with the relevant conservation measures, *Convinced* that illegal, unreported and unregulated
(IUU)fishing compromises the objective of the Convention, *Recalling* that Contracting Parties are required to cooperate in taking appropriate action to deter any fishing activities which are not consistent with the objective of the Convention, *Mindful* of the rights and obligations of Flag States and Port States to promote the effectiveness of conservation measures, *Wanting* to reinforce the conservation measures already adopted by the Commission, *Recognising* the obligations and responsibilities of Contracting Parties under the Catch Documentation Scheme for *Dissostichus* spp. (CDS), *Recalling* provisions as made under Article XXIV of the Convention, *Committed* to take steps, consistent with international law, to identify the origins of *Dissostichus* spp. entering the markets of Contracting Parties and to determine whether *Dissostichus* spp. harvested in the Convention Area that is imported into their territories was caught in a manner consistent with CCAMLR conservation measures, hereby adopts the following conservation measure in accordance with Article IX of the Convention: 1. Each Contracting Party shall ensure that its fishing vessels, licensed 1 in accordance with Conservation Measure 10-02, are equipped with a satellite-linked vessel monitoring device allowing for the continuous reporting of their position in the Convention Area for the duration of the licence issued by the Flag State. The vessel monitoring device shall automatically communicate at least every four hours to a land-based fisheries monitoring centre
(FMC)of the Flag State of the vessel the following data:
(i)Fishing vessel identification;
(ii)The current geographical position (latitude and longitude) of the vessel, with a position error which shall be less than 500 m, with a confidence interval of 99%; and
(iii)The date and time (expressed in UTC) of the fixing of the said position of the vessel. 2. Each Contracting Party as a Flag State shall ensure that the vessel monitoring device(s) on board its vessels are tamper proof, i.e. are of a type and configuration that prevent the input or output of false positions, and that are not capable of being over-ridden, whether manually, electronically or otherwise. To this end, the on-board satellite monitoring device must:
(i)Be located within a sealed unit; and
(ii)Be protected by official seals (or mechanisms) of a type that indicate whether the unit has been accessed or tampered with. 3. In the event that a Contracting Party has information to suspect that an on-board vessel monitoring device does not meet the requirements of paragraph 2, or has been tampered with, it shall immediately notify the Secretariat and the vessel's Flag State. 4. Each Contracting Party shall ensure that its FMC receives Vessel Monitoring System
(VMS)reports and messages, and that the FMC is equipped with computer hardware and software enabling automatic data processing and electronic data transmission. Each Contracting Party shall provide for backup and recovery procedures in case of system failures. 5. Masters and owners/licensees of fishing vessels subject to VMS shall ensure that the vessel monitoring device on board their vessels within the Convention Area is at all times fully operational as per paragraph 1, and that the data are transmitted to the Flag State. Masters and owners/licensees shall in particular ensure that:
(i)VMS reports and messages are not altered in any way;
(ii)The antennae connected to the satellite monitoring device are not obstructed in any way;
(iii)The power supply of the satellite monitoring device is not interrupted in any way; and
(iv)The vessel monitoring device is not removed from the vessel. 6. A vessel monitoring device shall be active within the Convention Area. It may, however, be switched off when the fishing vessel is in port for a period of more than one week, subject to prior notification to the Flag State, and if the Flag State so desires also to the Secretariat, and providing that the first position report generated following the repowering (activating) shows that the fishing vessel has not changed position compared to the last report. 7. In the event of a technical failure or non-functioning of the vessel monitoring device on board the fishing vessel, the master or the owner of the vessel, or their representative, shall communicate to the Flag State every six hours, and if the Flag State so desires also to the Secretariat, starting at the time that the failure or the non-functioning was detected or notified in accordance with paragraph 11, the up-to-date geographical position of the vessel by electronic means (e-mail, facsimile, telex, telephone message, radio). 8. Vessels with a defective vessel monitoring device shall take immediate steps to have the device repaired or replaced as soon as possible and, in any event, within two months. If the vessel during that time returns to port, it shall not be allowed by the Flag State to commence a further fishing trip in the Convention Area without having the defective device repaired or replaced. 9. When the Flag State has not received for 12 hours data transmissions referred to in paragraphs 1 and 7, or has reasons to doubt the correctness of the data transmissions under paragraphs 1 and 7, it shall as soon as possible notify the master or the owner or the representative thereof. If this situation occurs more than two times within a period of one year in respect of a particular vessel, the Flag State of the vessel shall investigate the matter, including having an authorised official check the device in question, in order to establish whether the equipment has been tampered with. The outcome of this investigation shall be forwarded to the CCAMLR Secretariat within 30 days of its completion. 10. 2,3,4 Each Contracting Party shall forward VMS reports and messages received, pursuant to paragraph 1, to the CCAMLR Secretariat as soon as possible:
(i)But not later than four hours after receipt for those exploratory longline fisheries subject to conservation measures adopted at CCAMLR-XXIII; or
(ii)But not later than 10 working days following departure from the Convention Area for all other fisheries. 11. With regard to paragraphs 7 and 10(i), each Contracting Party shall, as soon as possible but no later than two working days following detection or notification of technical failure or non-functioning of the vessel monitoring device on board the fishing vessel, forward the geographical positions of the vessel to the Secretariat, or shall ensure that these positions are forwarded to the Secretariat by the master or the owner of the vessel, or their representative. 12. Each Flag State shall ensure that VMS reports and messages transmitted by the Contracting Party or its fishing vessels to the CCAMLR Secretariat, are in a computer-readable form in the data exchange format set out in Annex 10-04/A. 13. Each Flag State shall in addition separately notify by e-mail or other means the CCAMLR Secretariat within 24 hours of each entry to, exit from and movement between subareas and divisions of the Convention Area by each of its fishing vessels in the format outlined in Annex 10-04/A. When a vessel intends to enter a closed area, or an area for which it is not licensed to fish, the Flag State shall provide prior notification to the Secretariat of the vessel's intentions. The Flag State may permit or direct that such notifications be provided by the vessel directly to the Secretariat. 14. Without prejudice to its responsibilities as a Flag State, if the Contracting Party so desires, it shall ensure that each of its vessels communicates the reports referred to in paragraphs 10 and 13 in parallel to the CCAMLR Secretariat. 15. Each Flag State shall notify to the CCAMLR Secretariat any changes without delay to the name, address, e-mail, telephone and facsimile numbers, as well as the address of electronic communication of the relevant authorities of their FMC. 16. In the event that the CCAMLR Secretariat has not, for 48 consecutive hours, received the data transmissions referred to in paragraph 10(i), it shall promptly notify the Flag State of the vessel and require an explanation. The CCAMLR Secretariat shall promptly inform the Commission if the data transmissions at issue, or the Flag State explanation, are not received from the Contracting Party within a further five working days. 17. If VMS data received by the Secretariat indicate the presence of a vessel in an area or subarea for which no license details have been provided by the Flag State to the Secretariat as required by Conservation Measure 10-02, or in any area or subarea for which the Flag State or fishing vessel has not provided prior notification as required by paragraph 13, then the Secretariat shall notify the Flag State and require an explanation. The explanation shall be forwarded to the Secretariat for evaluation by the Commission at its next annual meeting. 18. The CCAMLR Secretariat and all Parties receiving data shall treat all VMS reports and messages received under paragraph 10 or paragraphs 19, 20, 21 or 22 in a confidential manner in accordance with the confidentiality rules established by the Commission as contained in Annex 10-04/B. Data from individual vessels shall be used for compliance purposes only, namely for:
(i)Active surveillance presence, and/or inspections by a Contracting Party in a specified CCAMLR subarea or division; or
(ii)The purposes of verifying the content of a *Dissostichus* Catch Document (DCD). 19. The CCAMLR Secretariat shall place a list of vessels submitting VMS reports and messages pursuant to this conservation measure on a password-protected section of the CCAMLR Web site. This list shall be divided into subareas and divisions, without indicating the exact positions of vessels, and be updated when a vessel changes subarea or division. The list shall be posted daily by the Secretariat, establishing an electronic archive. 20. VMS reports and messages (including vessel locations), for the purposes of paragraph 18(i) above, may be provided by the Secretariat to a Contracting Party other than the Flag State without the permission of the Flag State only during active surveillance, and/or inspection in accordance with the CCAMLR System of Inspection and subject to the time frames set out in paragraph 10. In this case, the Secretariat shall provide VMS reports and messages, including vessel locations over the previous 10 days, for vessels actually detected during surveillance, and/or inspection by a Contracting Party, and VMS reports and messages (including vessel locations) for all vessels within 100 n miles of that same location. The Flag State(s) concerned shall be provided by the Party conducting the active surveillance, and/or inspection, with a report including name of the vessel or aircraft on active surveillance, and/or inspection under the CCAMLR System of Inspection, and the full name(s) of the CCAMLR inspector(s) and their ID number(s). The Parties conducting the active surveillance, and/or inspection will make every reasonable effort to make this information available to the Flag State(s) as soon as possible. 21. A Party may contact the Secretariat prior to conducting active surveillance, and/or inspection in accordance with the CCAMLR System of Inspection, in a given area and request VMS reports and messages (including vessel locations), for vessels in that area. The Secretariat shall provide this information only with the permission of the Flag State for each of the vessels and according to the time frames set out in paragraph 10. On receipt of Flag State permission the Secretariat shall provide regular updates of positions to the Contracting Party for the duration of the active surveillance, and/or inspection in accordance with the CCAMLR System of Inspection. 22. A Contracting Party may request actual VMS reports and messages (including vessel locations) from the Secretariat for a vessel when verifying the claims on a DCD. In this case the Secretariat shall provide that data only with Flag State permission. 23. Notwithstanding the requirements of paragraphs 1 and 4, Contracting Parties may request VMS data for their own Flag vessels from the Secretariat. 24. The CCAMLR Secretariat shall annually, before 30 September, report on the implementation of and compliance with this conservation measure to the Commission. 1 Includes vessels licensed under French domestic law and vessels licensed under South African domestic law. 2 This paragraph does not apply to vessels licensed under French domestic law in the EEZs surrounding Kerguelen and Crozet Islands. 3 This paragraph does not apply to vessels licensed under South African domestic law in the EEZ surrounding Prince Edward Islands. 4 This paragraph and paragraphs thereafter do not apply to the krill fisheries, with the exception of paragraphs 15 and 24. Annex 10-04/A VMS Data Format ‘Position’, ‘Exit’, and ‘Entry’ Reports/Messages Data element Field code Mandatory/ optional Remarks Start record SR M System detail; indicates start of record. Address AD M Message detail; destination; ‘XCA’ for CCAMLR. Sequence number SQ M 1 Message detail; message serial number in current year. Type of message TM 2 M Message detail; message type, ‘POS’ as position report/message to be communicated by VMS or other means by vessels with a defective satellite tracking device. Radio call sign RC M Vessel registration detail; international radio call sign of the vessel. Trip number TN O Activity detail; fishing trip serial number in current year. Vessel name NA M Vessel registration detail; name of the vessel. Contracting Party internal reference number IR O Vessel registration detail. Unique Contracting Party vessel number as ISO-3 Flag State code followed by number. External registration number XR O Vessel registration detail; the side number of the vessel. Latitude LA M 3 Activity detail; position. Longitude LO M 3 Activity detail; position. Latitude (decimal) LT M 4 Activity detail; position. Longitude (decimal) LG M 4 Activity detail; position. Date DA M Message detail; position date. Time TI M Message detail; position time in UTC. End of record ER M System detail; indicates end of the record. 1 Optional in case of a VMS message. 2 Type of message shall be ‘ENT' for the first VMS message from the Convention Area as detected by the FMC of the Contracting Party, or as directly submitted by the vessel. Type of message shall be ‘EXI' for the first VMS message from outside the Convention Area as detected by the FMC of the Contracting Party or as directly submitted by the vessel, and the values for latitude and longitude are, in this type of message, optional. Type of message shall be ‘MAN' for reports communicated by vessels with a defective satellite tracking device. 3 Mandatory for manual messages. 4 Mandatory for VMS messages. Format for Indirect Flag State Reporting Via E-mail Code Code definition Field contents Example Field contents explanation SR Start record No data No data. AD Address XCA XCA XCA = CCAMLR. SQ Sequence number XXX 123 Message sequence number. TM Type of message POS POS POS = position report, ENT = entry report, EXI = exit report. RC Radio call sign XXXXXX AB1234 Maximum of 8 characters. NA Vessel name XXXXXXXX Vessel Name Maximum of 30 characters. LT Latitude DD.ddd -55.000 +/−numeral in GIS format. Must specify −for South and + for North. LG Longitude DDD.ddd -020.000 +/−numeral in GIS format. Must specify −for West and + for East. DA Record date YYYYMMDD 20050114 8 characters only TI Record time HHMM 0120 4 characters only, using 24-hour time format. Do not use separators or include seconds. ER End record No data No data. Sample string: //SR//AD/XCA//SQ/001//TM/POS//RC/ABCD//NA/Vessel Name//LT/−55.000//LG/−020.000//DA/20050114//TI/0120//ER// Notes: • Three fields in Annex 10-04/A are optional. These are: TN (trip number) IR (Contracting Party internal reference number): Must start with the 3-character ISO country code, e.g. Argentina = ARGxxx XR (external registration number). • Do not include any other fields. • Do not include separators (e.g.: . or /) in the date and time fields. • Do not include seconds in the time fields. Annex 10-04/B Provisions on Secure and Confidential Treatment of Electronic Reports and Messages Transmitted Pursuant to Conservation Measure 10-04 1. Field of Application 1.1 The provisions set out below shall apply to all VMS reports and messages transmitted and received pursuant to Conservation Measure 10-04. 2. General Provisions 2.1 The CCAMLR Secretariat and the appropriate authorities of Contracting Parties transmitting and receiving VMS reports and messages shall take all necessary measures to comply with the security and confidentiality provisions set out in sections 3 and 4. 2.2 The CCAMLR Secretariat shall inform all Contracting Parties of the measures taken in the Secretariat to comply with these security and confidentiality provisions. 2.3 The CCAMLR Secretariat shall take all the necessary steps to ensure that the requirements pertaining to the deletion of VMS reports and messages handled by the Secretariat are complied with. 2.4 Each Contracting Party shall guarantee the CCAMLR Secretariat the right to obtain as appropriate, the rectification of reports and messages or the erasure of VMS reports and messages, the processing of which does not comply with the provisions of Conservation Measure 10-04. 3. Provisions on Confidentiality 3.1 All requests for data must be made to the CCAMLR Secretariat in writing. Requests for data must be made by the main Commission Contact or an alternative contact nominated by the main Commission Contact of the Contracting Party concerned. The Secretariat shall only provide data to a secure e-mail address specified at the time of making a request for data. 3.2 In cases where the CCAMLR Secretariat is required to seek the permission of the Flag State before releasing VMS reports and messages to another Party, the Flag State shall respond to the Secretariat as soon as possible but in any case within two working days. 3.3 Where the Flag State chooses not to give permission for the release of VMS reports and messages, the Flag State shall, in each instance, provide a written report within 10 working days to the Commission outlining the reasons why it chooses not to permit data to be released. The CCAMLR Secretariat shall place any report so provided, or notice that no report was received, on a password-protected part of the CCAMLR Web site. 3.4 VMS reports and messages shall only be released and used for the purposes stipulated in paragraph 18 of Conservation Measure 10-04. 3.5 VMS reports and messages released pursuant to paragraphs 20, 21, and 22 of Conservation Measure 10-04 shall provide details of: Name of vessel, date and time of position report, and latitude and longitude position at time of report. 3.6 Regarding paragraph 21 each inspecting Contracting Party shall make available VMS reports and messages and positions derived therefrom only to their inspectors designated under the CCAMLR System of Inspection. VMS reports and messages shall be transmitted to their inspectors no more than 48 hours prior to entry into the CCAMLR, subarea or division where surveillance is to be conducted by the Contracting Party. Contracting Parties must ensure that VMS reports and messages are kept confidential by such inspectors. 3.7 The CCAMLR Secretariat shall delete all the original VMS reports and messages referred to in section 1 from the database at the CCAMLR Secretariat by the end of the first calendar month following the third year in which the VMS reports and messages have originated. Thereafter the information related to the movement of the fishing vessels shall only be retained by the CCAMLR Secretariat after measures have been taken to ensure that the identity of the individual vessels can no longer be established. 3.8 Contracting Parties may retain and store VMS reports and messages provided by the Secretariat for the purposes of active surveillance presence, and/or inspections, until 24 hours after the vessels to which the reports and messages pertain have departed from the CCAMLR subarea or division. Departure is deemed to have been effected six hours after the transmission of the intention to exit from the CCAMLR subarea or division. 4. Provisions on Security 4.1 Overview 4.1.1 Contracting Parties and the CCAMLR Secretariat shall ensure the secure treatment of VMS reports and messages in their respective electronic data processing facilities, in particular where the processing involves transmission over a network. Contracting Parties and the CCAMLR Secretariat must implement appropriate technical and organisational measures to protect reports and messages against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and against all inappropriate forms of processing. 4.1.2 The following security issues must be addressed from the outset: • System access control: The system has to withstand a break-in attempt from unauthorised persons. • Authenticity and data access control: The system has to be able to limit the access of authorised parties to a predefined set of data only. • Communication security: It shall be guaranteed that VMS reports and messages are securely communicated. • Data security: It has to be guaranteed that all VMS reports and messages that enter the system are securely stored for the required time and that they will not be tampered with. • Security procedures: Security procedures shall be designed addressing access to the system (both hardware and software), system administration and maintenance, backup and general usage of the system. 4.1.3 Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing of the reports and the messages. 4.1.4 Security measures are described in more detail in the following paragraphs. 4.2 System Access Control 4.2.1 The following features are the mandatory requirements for the VMS installation located at the CCAMLR Data Centre: • A stringent password and authentication system: Each user of the system is assigned a unique user identification and associated password. Each time the user logs on to the system he/she has to provide the correct password. Even when successfully logged on the user only has access to those and only those functions and data that he/she is configured to have access to. Only a privileged user has access to all the data. • Physical access to the computer system is controlled. • Auditing: Selective recording of events for analysis and detection of security breaches. • Time-based access control: Access to the system can be specified in terms of times-of-day and days-of-week that each user is allowed to log on to the system. • Terminal access control: Specifying for each workstation which users are allowed to access. 4.3 Authenticity and Data Access Security 4.3.1 Communication between Contracting Parties and the CCAMLR Secretariat for the purpose of Conservation Measure 10-04 shall use secure Internet protocols SSL, DES, or verified certificates obtained from the CCAMLR Secretariat. 4.4 Data Security 4.4.1 Access limitation to the data shall be secured via a flexible user identification and password mechanism. Each user shall be given access only to the data necessary for their task. 4.5 Security Procedures 4.5.1 Each Contracting Party and the CCAMLR Secretariat shall nominate a security system administrator. The security system administrator shall review the log files generated by the software for which they are responsible, properly maintain the system security for which they are responsible, restrict access to the system for which they are responsible as deemed needed and in the case of Contracting Parties, also act as a liaison with the Secretariat in order to solve security matters. Conservation Measure 21-03
(2007)Notifications of Intent To Participate in a Fishery for *Euphausia superba* (Species: krill; Area: all; Season: all; Gear: all) 1. In order for the Scientific Committee to thoroughly study the notifications to fish for krill for the coming season, all Contracting Parties intending to fish for krill in the Convention Area shall notify the Secretariat of their intention not less than four
(4)months in advance of the annual meeting of the Commission, immediately prior to the season in which they intend to fish, using the pro forma in Annex 21-03/A. 2. This notification shall include the information prescribed in paragraph 4 of Conservation Measure 10-02 in respect of each vessel proposing to participate in the fishery, with the exception that the notification shall not be required to specify the information referred to in subparagraph 4(ii) of Conservation Measure 10-02. Contracting Parties shall, to the extent practicable, also provide in their notification the additional information detailed in paragraph 5 of Conservation Measure 10-02 in respect to each fishing vessel notified. Contracting Parties are not hereby exempted from their obligations under Conservation Measure 10-02 to submit any necessary updates to vessel and licence details within the deadline established therein as of issuance of the licence to the vessel concerned. 3. A Contracting Party intending to fish for krill in the Convention Area may only notify in respect of vessels flying its flag at the time of the notification. 4. Contracting Parties shall ensure, including by submitting notifications by the due date, appropriate review by the Commission of notifications to fish for krill in the Convention Area before a vessel commences fishing. 5. Notwithstanding paragraph 4, Contracting Parties shall be entitled under Conservation Measure 10-02 to authorize participation in a krill fishery by a vessel other than that notified to the Commission in accordance with paragraph 2, if the notified vessel is prevented from participation due to legitimate operational reasons or *force majeure* . In such circumstances the Contracting Party concerned shall immediately inform the Secretariat providing:
(i)Full details of the intended replacement vessel(s) as prescribed in paragraph 2;
(ii)A comprehensive account of the reasons justifying the replacement and any relevant supporting evidence or references. The Secretariat shall immediately circulate this information to all Contracting Parties. 6. A vessel on either of the IUU Vessel Lists established under Conservation Measures 10-06 and 10-07 shall not be permitted by Contracting Parties to participate in krill fisheries. 7. The Secretariat shall provide the Commission and its relevant subsidiary bodies with information regarding substantial discrepancies between notifications and actual catches in the krill fishery in the latest season. BILLING CODE 3510-22-P EN21DE07.000 BILLING CODE 3510-22-C Conservation Measure 22-06
(2007)1 2 Bottom Fishing in the Convention Area (Species: all; Area: see paragraph 1; Season: all; Gear: bottom fishing) The Commission, *Recognising* the commitment made by Members to implement the CCAMLR precautionary and ecosystem approaches to fisheries management by embracing principles of conservation as stated in Article II of the Convention, *Conscious* of the urgent need to protect vulnerable marine ecosystems from bottom fishing activities that have significant adverse impacts on such ecosystems, *Noting* that United Nations General Assembly Resolution 61/105, adopted on 8 December 2006, calls on regional fisheries management organisations or arrangements with the competence to regulate bottom fisheries to adopt and implement measures to prevent significant adverse impacts of bottom fisheries on vulnerable marine ecosystems and noting further that all CCAMLR Members joined in the consensus by which this resolution was adopted, *Noting* also the importance of Article IX of the Convention, including the use of the best scientific evidence available, *Aware* of the steps already taken by CCAMLR to address the impacts of deep-sea gillnetting and bottom trawling in the Convention Area, through the implementation of Conservation Measures 22-04 and 22-05 respectively, *Recognising* that CCAMLR has responsibilities for the conservation of Antarctic marine living resources, part of which include the attributes of a regional fisheries management organisation, *Noting* that all CCAMLR conservation measures are published on the CCAMLR website, hereby adopts the following conservation measure in accordance with Article IX of the Convention: Management of Bottom Fishing 1. This conservation measure applies to areas in the Convention Area south of 60°S; and to the rest of the Convention Area with the exception of subareas and divisions where an established fishery was in place in 2006/07 with a catch limit greater than zero. 2. For the purposes of this measure, the term `vulnerable marine ecosystems' in the context of CCAMLR includes seamounts, hydrothermal vents, cold water corals and sponge fields. 3. For the purposes of this measure, the term `bottom fishing activities' includes the use of any gear that interacts with the bottom. 4. Until 30 November 2008, bottom fishing activities shall be limited to those areas for which bottom fishing activities were approved by the Commission in the 2006/07 fishing season. 5. Contracting Parties whose vessels wish to engage in any bottom fishing activities, beginning 1 December 2008, shall follow the procedures described in paragraphs 7 to 10 below. 6. Contracting Parties shall authorise vessels flying their flag to participate in bottom fishing activities only in accordance with the provisions of this conservation measure and Conservation Measure 10-02. Assessment of Bottom Fishing 7. All individual bottom fishing activities commencing 1 December 2008 and thereafter shall be subject to assessment by the Scientific Committee, based on the best available scientific information, to determine if such activities, taking account of the history of bottom fishing in the areas proposed, would contribute to having significant adverse impacts on vulnerable marine ecosystems, and to ensure that if it is determined that these activities would make such contributions, that they are managed to prevent such impacts or are not authorised to proceed. The assessments shall include the following procedures:
(i)Each Contracting Party proposing to participate in bottom fishing shall submit to the Scientific Committee and Commission information and a preliminary assessment, where possible, of the known and anticipated impacts of its bottom fishing activities on vulnerable marine ecosystems, including benthos and benthic communities, no less than three months in advance of the next meeting of the Commission. These submissions shall also include the mitigation measures proposed by the Contracting Party to prevent such impacts.
(ii)The submission of such information shall be carried out in accordance with guidance developed by the Scientific Committee or, in the absence of such guidance, to the best of the Contracting Party's ability.
(iii)The Scientific Committee shall undertake an assessment, according to procedures and standards it develops, and provide advice to the Commission as to whether the proposed bottom fishing activity would contribute to having significant adverse impacts on vulnerable marine ecosystems and, if so, whether the proposed or additional mitigation measures would prevent such impacts. The Scientific Committee may use in its assessment additional information available to it, including information from other fisheries in the region or similar fisheries elsewhere.
(iv)The Commission shall, taking account of advice and recommendations provided by the Scientific Committee concerning bottom fishing activities, including data and information arising from reports pursuant to paragraph 8, adopt conservation measures to prevent significant adverse impacts on vulnerable marine ecosystems, that as appropriate:
(a)Allow, prohibit or restrict bottom fishing activities within particular areas;
(b)Require specific mitigation measures for bottom fishing activities;
(c)Allow, prohibit or restrict bottom fishing with certain gear types; and/or
(d)Contain any other relevant requirements or restrictions to prevent significant adverse impacts to vulnerable marine ecosystems. Encounters With Vulnerable Marine Ecosystems 8. Contracting Parties, in the absence of site-specific or other conservation measures to prevent significant adverse impact on vulnerable marine ecosystems, shall require vessels flying their flag to cease bottom fishing activities in any location where evidence of a vulnerable marine ecosystem is encountered in the course of fishing operations, and to report the encounter to the Secretariat in accordance with the schedule of the Catch and Effort Reporting System (Conservation Measure 23-01, 23-02 or 23-03, whichever is applicable), so that appropriate conservation measures can be adopted in respect of the relevant site. 9. The Scientific Committee shall provide advice to the Commission on the known and anticipated impacts of bottom fishing activities on vulnerable marine ecosystems, and recommend practices, including ceasing fishing operations if needed, when evidence of a vulnerable marine ecosystem is encountered in the course of bottom fishing operations. Taking account of this advice, the Commission shall adopt initial conservation measures in 2008 to be applied when evidence of a vulnerable marine ecosystem is encountered in the course of fishing operations. Monitoring and Control of Bottom Fishing Activities 10. Notwithstanding Members obligations pursuant to Conservation Measure 21-02, all Contracting Parties whose vessels participate in bottom fisheries shall:
(i)Ensure that their vessels are equipped and configured so that they can comply with all relevant conservation measures;
(ii)Ensure that each vessel carries at least one CCAMLR-designated scientific observer to collect data in accordance with this and other conservation measures;
(iii)Submit data pursuant to data collection plans for bottom fisheries to be developed by the Scientific Committee and included in conservation measures;
(iv)Be prohibited from continuing participation in the relevant bottom fishery if data arising from conservation measures relevant to that bottom fishery have not been submitted to CCAMLR pursuant to subparagraph 10(iii) for the most recent season in which fishing occurred, until the relevant data have been submitted to CCAMLR and the Scientific Committee has been allowed an opportunity to review the data. 11. The Secretariat shall annually compile a list of vessels authorised to fish pursuant to this conservation measure and shall make this list publicly available on CCAMLR's website. Data Collection and Sharing and Scientific Research 12. The Scientific Committee shall, based on the best available scientific information, advise the Commission on where vulnerable marine ecosystems are known to occur or are likely to occur, and advise on potential mitigation measures. Contracting Parties shall provide the Scientific Committee with all relevant information to assist in this work. The Secretariat shall maintain an inventory including digital maps of all known vulnerable marine ecosystems in the Convention Area for circulation to all Contracting Parties and other relevant bodies. 13. Scientific bottom fishing research activities notified under Conservation Measure 24-01, paragraph 2, shall proceed according to Conservation Measure 24-01 and shall be undertaken with due regard to potential impacts on vulnerable marine ecosystems. Scientific bottom fishing research activities notified under Conservation Measure 24-01, paragraph 3, shall be treated in accordance with all aspects of paragraph 7 of this conservation measure, notwithstanding the procedures in Conservation Measure 24-01. Consistent with existing reporting requirements in Conservation Measure 24-01, paragraph 4, information regarding the location and the type of any vulnerable marine ecosystem encountered, in the course of scientific bottom fishing research activities, shall be reported to the Secretariat. Review 14. This conservation measure will be reviewed at the next regular meeting of the Commission, based upon the findings of the Scientific Committee. In addition, beginning in 2009 and biennially thereafter, the Commission will examine the effectiveness of relevant conservation measures in protecting vulnerable marine ecosystems from significant adverse impacts, based upon advice from the Scientific Committee. 1 Except for waters adjacent to the Kerguelen and Crozet Islands. 2 Except for waters adjacent to the Prince Edward Islands. Conservation Measure 23-06
(2007)Data Reporting System for *Euphausia superba* Fisheries (Species: krill; Area: all; Season: all; Gear: all) 1. This conservation measure is invoked by the conservation measures to which it is attached. 2. Catches shall be reported in accordance with the monthly Catch and Effort Reporting System set out in Conservation Measure 23-03 according to the statistical areas, subareas, divisions or any other area or unit specified with catch limits in Conservation Measure 51-02. 3. Provided that the total reported catch for the region for which a trigger level has been specified in Conservation Measures 51-01 and 51-03 in the fishing season is less than 80% of the applicable trigger level, catches shall be reported in accordance with the Monthly Catch and Effort Reporting System set out in Conservation Measure 23-03 according to the statistical areas, subareas, divisions or any other area or unit specified with catch limits in Conservation Measures 51-01 and 51-03. 4. When the total reported catch in any fishing season is greater than or equal to 80% of the trigger level set in Conservation Measures 51-01 and 51-03, catches shall be reported in accordance with the 10-day Catch and Effort Reporting System set out in Conservation Measure 23-02, according to the statistical areas, subareas, divisions or any other area or unit specified with catch limits in Conservation Measures 51-01 and 51-03. 5. In all seasons after the conditions of paragraph 4 have been met, paragraph 3 shall apply when the total catch is less than 50% of the trigger level and paragraph 4 shall apply when the total catch is greater than or equal to 50% of the trigger level. 6. At the end of each fishing season each Contracting Party shall obtain from each of its vessels the haul-by-haul data required to complete the CCAMLR fine-scale catch and effort data form (trawl fisheries Form C1). It shall transmit those data in the specified format to the Executive Secretary not later than 1 April of the following year. 7. This conservation measure shall be reviewed in 2010 or when catch limits for SSMUs are established in the relevant areas, whichever is sooner. Conservation Measure 25-02
(2007)1 2 Minimisation of the Incidental Mortality of Seabirds in the Course of Longline Fishing or Longline Fishing Research in the Convention Area. (Species: seabirds; Area: all; Season: all; Gear: longline) The Commission, *Noting* the need to reduce the incidental mortality of seabirds during longline fishing by minimising their attraction to fishing vessels and by preventing them from attempting to seize baited hooks, particularly during the period when the lines are set, *Recognising* that in certain subareas and divisions of the Convention Area there is also a high risk that seabirds will be caught during line hauling, *Adopts* the following measures to reduce the possibility of incidental mortality of seabirds during longline fishing. 1. Fishing operations shall be conducted in such a way that hooklines 3 sink beyond the reach of seabirds as soon as possible after they are put in the water. 2. Vessels using autoline systems should add weights to the hookline or use integrated weight
(IW)hooklines while deploying longlines. IW longlines of a minimum of 50 g/m or attachment to non-IW longlines of 5 kg weights at 50 to 60 m intervals are recommended. 3. Vessels using the Spanish method of longline fishing should release weights before line tension occurs; traditional weights 4 of at least 8.5 kg mass shall be used, spaced at intervals of no more than 40 m, or traditional weights 4 of at least 6 kg mass shall be used, spaced at intervals of no more than 20 m, or solid steel weights 5 of at least 5 kg mass shall be used, spaced at intervals of no more than 40 m. 4. Longlines shall be set at night only (i.e. during the hours of darkness between the times of nautical twilight 6 ) 7 . During longline fishing at night, only the minimum ship's lights necessary for safety shall be used. 5. The dumping of offal is prohibited while longlines are being set. The dumping of offal during the haul shall be avoided. Any such discharge shall take place only on the opposite side of the vessel to that where longlines are hauled. For vessels or fisheries where there is not a requirement to retain offal on board the vessel, a system shall be implemented to remove fish hooks from offal and fish heads prior to discharge. 6. Vessels which are so configured that they lack on-board processing facilities or adequate capacity to retain offal on board, or the ability to discharge offal on the opposite side of the vessel to that where longlines are hauled, shall not be authorised to fish in the Convention Area. 7. A streamer line shall be deployed during longline setting to deter birds from approaching the hookline. Specifications of the streamer line and its method of deployment are given in the appendix to this conservation measure. 8. A device designed to discourage birds from accessing baits during the haul of longlines shall be employed in those areas defined by CCAMLR as average-to-high or high (Level of Risk 4 or 5) in terms of risk of seabird by-catch. These areas are currently Statistical Subareas 48.3, 58.6 and 58.7 and Statistical Divisions 58.5.1 and 58.5.2. 9. Every effort should be made to ensure that birds captured alive during longlining are released alive and that wherever possible hooks are removed without jeopardising the life of the bird concerned. 10. Other variations in the design of mitigation measures may be tested on vessels carrying two observers, at least one appointed in accordance with the CCAMLR Scheme of International Scientific Observation, providing that all other elements of this conservation measure are complied with 8 . Full proposals for any such testing must be notified to the Working Group on Fish Stock Assessment (WG-FSA) in advance of the fishing season in which the trials are proposed to be conducted. 1 Except for waters adjacent to the Kerguelen and Crozet Islands 2 Except for waters adjacent to the Prince Edward Islands 3 Hookline is defined as the groundline or mainline to which the baited hooks are attached by snoods. 4 Traditional weights are those made from rocks or concrete. 5 Solid steel weights shall not be made from chain links. They should be made in a hydrodynamic shape designed to sink rapidly. 6 The exact times of nautical twilight are set forth in the Nautical Almanac tables for the relevant latitude, local time and date. A copy of the algorithm for calculating these times is available from the CCAMLR Secretariat. All times, whether for ship operations or observer reporting, shall be referenced to GMT. 7 Wherever possible, setting of lines should be completed at least three hours before sunrise (to reduce loss of bait to/catches of white-chinned petrels). 8 The mitigation measures under test should be constructed and operated taking full account of the principles set out in WG-FSA-03/22 (the published version of which is available from the CCAMLR Secretariat and Web site); testing should be carried out independently of actual commercial fishing and in a manner consistent with the spirit of Conservation Measure 21-02. Appendix to Conservation Measure 25-02 1. The aerial extent of the streamer line, which is the part of the line supporting the streamers, is the effective seabird deterrent component of a streamer line. Vessels are encouraged to optimise the aerial extent and ensure that it protects the hookline as far astern of the vessel as possible, even in crosswinds. 2. The streamer line shall be attached to the vessel such that it is suspended from a point a minimum of 7 m above the water at the stern on the windward side of the point where the hookline enters the water. 3. The streamer line shall be a minimum of 150 m in length and include an object towed at the seaward end to create tension to maximise aerial coverage. The object towed should be maintained directly behind the attachment point to the vessel such that in crosswinds the aerial extent of the streamer line is over the hookline. 4. Branched streamers, each comprising two strands of a minimum of 3 mm diameter brightly coloured plastic tubing 9 or cord, shall be attached no more than 5 m apart commencing 5 m from the point of attachment of the streamer line to the vessel and thereafter along the aerial extent of the line. Streamer length shall range between minimums of 6.5 m from the stern to 1 m for the seaward end. When a streamer line is fully deployed, the branched streamers should reach the sea surface in the absence of wind and swell. Swivels or a similar device should be placed in the streamer line in such a way as to prevent streamers being twisted around the streamer line. Each branched streamer may also have a swivel or other device at its attachment point to the streamer line to prevent fouling of individual streamers. 5. Vessels are encouraged to deploy a second streamer line such that streamer lines are towed from the point of attachment each side of the hookline. The leeward streamer line should be of similar specifications (in order to avoid entanglement the leeward streamer line may need to be shorter) and deployed from the leeward side of the hookline. 9 Plastic tubing should be of a type that is manufactured to be protected from ultraviolet radiation. BILLING CODE 3510-22-P EN21DE07.001 BILLING CODE 3510-22-C Conservation Measure 31-02
(2007)1 2 General measure for the closure of all fisheries (Species: all; Area: all; Season: all; Gear: all) This conservation measure governs the closure of all fisheries and is adopted in accordance with Article IX of the Convention. General application 1. Following notification by the Secretariat of the closure of a fishery (Conservation Measures 23-01, 23-02, 23-03 and 41-01 refer), all vessels in the area, management area, subarea, division, small-scale research unit or other management unit subject to the closure notice, shall remove all their fishing gear from the water by the notified closure date and time. 2. On receipt of such notification by the vessel, no further longlines may be set within 24 hours of the notified closure date and time. If such notification is received less than 24 hours before the closure date and time, no further longlines may be set following receipt of that notification. 3. All vessels should depart the closed fishery as soon as all fishing gear has been removed from the water. 4. Notwithstanding paragraph 1, should it appear likely that a vessel will be unable to remove all its fishing gear from the water by the notified closure date and time because of:
(i)Consideration of the safety of the vessel and crew;
(ii)The limitations which may arise from adverse weather conditions;
(iii)Sea-ice cover; or
(iv)The need to protect the Antarctic marine environment, the vessel shall notify the Flag State concerned of the situation. The Flag State or vessel shall also notify the Secretariat. The vessel shall nonetheless make all reasonable efforts to remove all its fishing gear from the water as soon as possible. Other relevant considerations 5. In the event the vessel is unable to remove all of its fishing gear from the water by the notified closure date and time, the Flag State shall promptly inform the Secretariat. On receipt of such information the Secretariat shall promptly inform Members. 6. If paragraph 5 applies, the Flag State shall carry out an investigation of the vessel's actions and, according to its domestic procedures, report on its findings, including all relevant matters, to the Commission no later than the next meeting of the Commission. The final report should assess whether the vessel made all reasonable efforts to remove all its fishing gear from the water:
(i)By the notified closure date and time; and
(ii)As soon as possible after the notification referred to in paragraph 4. 7. In the event that a vessel does not depart the closed fishery as soon as all fishing gear has been removed from the water, the Flag State or vessel should inform the Secretariat. On receipt of such information the Secretariat shall promptly inform Members. 1 Except for waters adjacent to the Kerguelen and Crozet Islands. 2 Except for waters adjacent to the Prince Edward Islands. Conservation Measure 32-09
(2007)Prohibition of Directed Fishing for Dissostichus spp. Except in Accordance With Specific Conservation Measures in the 2007/08 Season (Species: toothfish; Area: 48.5; Season: 2007/08; Gear: all) The Commission hereby adopts the following conservation measure in accordance with Article IX of the Convention: Directed fishing for *Dissostichus* spp. in Statistical Subarea 48.5 is prohibited from 1 December 2007 to 30 November 2008. Conservation Measure 33-02
(2007)Limitation of By-Catch in Statistical Division 58.5.2 in the 2007/08 Season (Species: By-catch; Area: 58.5.2; Season: 2007/08; Gear: All) 1. There shall be no directed fishing for any species other than *Dissostichus eleginoides* and *Champsocephalus gunnari* in Statistical Division 58.5.2 in the 2007/08 fishing season. 2. In directed fisheries in Statistical Division 58.5.2 in the 2007/08 season, the by-catch of *Channichthys rhinoceratus* shall not exceed 150 tonnes, the by-catch of *Lepidonotothen squamifrons* shall not exceed 80 tonnes, the by-catch of *Macrourus* spp. shall not exceed 360 tonnes and the by-catch of skates and rays shall not exceed 120 tonnes. For the purposes of this measure, ‘ *Macrourus* spp.’ and ‘skates and rays’ should each be counted as a single species. 3. The by-catch of any fish species not mentioned in paragraph 2, and for which there is no other catch limit in force, shall not exceed 50 tonnes in Statistical Division 58.5.2. 4. If, in the course of a directed fishery, the by-catch in any one haul of *Channichthys rhinoceratus* , *Lepidonotothen squamifrons* , *Macrourus* spp., *Somniosus* spp. or skates and rays is equal to, or greater than 2 tonnes, then the fishing vessel shall not fish using that method of fishing at any point within 5 n miles 1 of the location where the by-catch exceeded 2 tonnes for a period of at least five days 2 . The location where the by-catch exceeded 2 tonnes is defined as the path 3 followed by the fishing vessel. 5. If, in the course of a directed fishery, the by-catch in any one haul of any other by-catch species for which by-catch limitations apply under this conservation measure is equal to, or greater than 1 tonne, then the fishing vessel shall not fish using that method of fishing at any point within 5 n miles 1 of the location where the by-catch exceeded 1 tonne for a period of at least five days. 2 The location where the by-catch exceeded 1 tonne is defined as the path 3 followed by the fishing vessel. 1 This provision concerning the minimum distance separating fishing locations is adopted pending the adoption of a more appropriate definition of a fishing location by the Commission. 2 The specified period is adopted in accordance with the reporting period specified in Conservation Measure 23-01, pending the adoption of a more appropriate period by the Commission. 3 For a trawl the path is defined from the point at which the fishing gear was first deployed from the fishing vessel to the point at which the fishing gear was retrieved by the fishing vessel. For a longline or a pot, the path is defined from the point at which the first anchor of a set was deployed to the point at which the last anchor of that set was deployed. Conservation Measure 33-03
(2007)1 2 Limitation of By-Catch in New and Exploratory Fisheries in the 2007/08 Season (Species: By-catch; Area: Various; Season: 2007/08; Gear: All) 1. This conservation measure applies to new and exploratory fisheries in all areas containing small-scale research units (SSRUs) in the 2007/08 season, except where specific by-catch limits apply. 2. The catch limits for all by-catch species are set out in Annex 33-03/A. Within these catch limits, the total catch of by-catch species in any SSRU or combination of SSRUs as defined in relevant conservation measures shall not exceed the following limits: • Skates and rays 5% of the catch limit of *Dissostichus* spp. or 50 tonnes whichever is greater; • *Macrourus* spp. 16% of the catch limit for *Dissostichus* spp. or 20 tonnes, whichever is greater; • All other species combined 20 tonnes. 3. For the purposes of this measure ‘ *Macrourus* spp.’ and ‘skates and rays’ should each be counted as a single species. 4. Unless otherwise requested by scientific observers, vessels, where possible, should release skates and rays alive from the line by cutting snoods, and when practical, removing the hooks. 5. If the by-catch of any one species is equal to or greater than 1 tonne in any one haul or set, then the fishing vessel shall move to another location at least 5 n miles 3 distant. The fishing vessel shall not return to any point within 5 n miles of the location where the by-catch exceeded 1 tonne for a period of at least five days 4 . The location where the by-catch exceeded 1 tonne is defined as the path 5 followed by the fishing vessel. 6. If the catch of *Macrourus* spp. taken by a single vessel in any two 10-day periods 6 in a single SSRU exceeds 1 500 kg in each 10-day period and exceeds 16% of the catch of *Dissostichus* spp. by that vessel in that SSRU in those periods, the vessel shall cease fishing in that SSRU for the remainder of the season. 1 Except for waters adjacent to the Kerguelen and Crozet Islands 2 Except for waters adjacent to the Prince Edward Islands 3 This provision concerning the minimum distance separating fishing locations is adopted pending the adoption of a more appropriate definition of a fishing location by the Commission. 4 The specified period is adopted in accordance with the reporting period specified in Conservation Measure 23-01, pending the adoption of a more appropriate period by the Commission. 5 For a trawl the path is defined from the point at which the fishing gear was first deployed from the fishing vessel to the point at which the fishing gear was retrieved by the fishing vessel. For a longline the path is defined from the point at which the first anchor of a set was deployed to the point at which the last anchor of that set was deployed. 6 A 10-day period is defined as day 1 to day 10, day 11 to day 20, or day 21 to the last day of the month. Annex 33-03/A Table 1.— By-Catch Catch Limits for New and Exploratory Fisheries in 2007/08. Subarea/division Region *Dissostichus* spp. catch limit (tonnes per region) By-catch catch limit Skates and rays (tonnes per region) *Macrourus* spp. (tonnes per region) Other species (tonnes per SSRU) 48.6 North of 60°S 200 50 32 20 South of 60°S 200 50 32 20 58.4.1 Whole division 600 50 96 20 58.4.2 Whole division 780 50 124 20 58.4.3a Whole division 250 50 26 20 58.4.3b North of 60°S 150 50 80 20 88.1 Whole subarea 2660 133 426 20 88.2 South of 65°S 547 50 88 20 Region: As defined in column 2 of this table. Rules for catch limits for by-catch species: Skates and rays: 5% of the catch limit for *Dissostichus* spp. or 50 tonnes, whichever is greatest (SC-CAMLR-XXI, paragraph 5.76). *Macrourus* spp.: 16% of the catch limit for *Dissostichus* spp. or 20 tonnes whichever is greatest, except in Divisions 58.4.3a and 58.4.3b (SC-CAMLR-XXII, paragraph 4.207). Other species: 20 tonnes per SSRU. Conservation Measure 41-01
(2007)1 2 General Measures for Exploratory Fisheries for Dissostichus spp. in the Convention Area in the 2007/08 Season (Species: toothfish; Area: various; Season: 2007/08; Gear: longline, trawl) The Commission hereby adopts the following conservation measure: 1. This conservation measure applies to exploratory fisheries using the trawl or longline methods except for such fisheries where the Commission has given specific exemptions to the extent of those exemptions. In trawl fisheries, a haul comprises a single deployment of the trawl net. In longline fisheries, a haul comprises the setting of one or more lines in a single location. 2. Fishing should take place over as large a geographical and bathymetric range as possible to obtain the information necessary to determine fishery potential and to avoid over-concentration of catch and effort. To this end, fishing in any small-scale research unit
(SSRU)shall cease when the reported catch reaches the specified catch limit 3 and that SSRU shall be closed to fishing for the remainder of the season. 3. In order to give effect to paragraph 2 above:
(i)The precise geographic position of a haul in trawl fisheries will be determined by the mid-point of the path between the start-point and end-point of the haul for the purposes of catch and effort reporting;
(ii)The precise geographic position of a haul/set in longline fisheries will be determined by the centre-point of the line or lines deployed for the purposes of catch and effort reporting;
(iii)The vessel will be deemed to be fishing in any SSRU from the beginning of the setting process until the completion of the hauling of all lines;
(iv)Catch and effort information for each species by SSRU shall be reported to the Executive Secretary every five days using the Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(v)The Secretariat shall notify Contracting Parties participating in these fisheries when the total catch for *Dissostichus eleginoides* and *Dissostichus mawsoni* combined in any SSRU is likely to reach the specified catch limit, and of the closure of that SSRU when that limit is reached. 4 No part of a trawl path may lie within a closed SSRU and no part of a longline may be set within a closed SSRU. 4. The by-catch in each exploratory fishery shall be regulated as in Conservation Measure 33-03. 5. The total number and weight of *Dissostichus eleginoides* and *Dissostichus mawsoni* discarded, including those with the `jellymeat' condition, shall be reported. 6. Each vessel participating in the exploratory fisheries for *Dissostichus* spp. during the 2007/08 season shall have one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing season. 7. The Data Collection Plan (Annex 41-01/A), Research Plan (Annex 41-01/B) and Tagging Program (Annex 41-01/C) shall be implemented. Data collected pursuant to the Data Collection and Research Plans for the period up to 31 August 2008 shall be reported to CCAMLR by 30 September 2008 so that the data will be available to the meeting of the Working Group on Fish Stock Assessment (WG-FSA) in 2008. Such data taken after 31 August 2008 shall be reported to CCAMLR not later than three months after the closure of the fishery, but, where possible, submitted in time for the consideration of WG-FSA. 8. Members who choose not to participate in the fishery prior to the commencement of the fishery shall inform the Secretariat of changes in their plans no later than one month before the start of the fishery. If, for whatever reason, Members are unable to participate in the fishery, they shall inform the Secretariat no later than one week after finding that they cannot participate. The Secretariat will inform all Contracting Parties immediately after such notification is received. 1 Except for waters adjacent to the Kerguelen and Crozet Islands. 2 Except for waters adjacent to the Prince Edward Islands. 3 Unless otherwise specified, the catch limit for *Dissostichus* spp. shall be 100 tonnes in any SSRU except in respect of Statistical Subarea 88.2. 4 The closure of fisheries is governed by Conservation Measure 31-02. Annex 41-01/A Data Collection Plan for Exploratory Fisheries 1. All vessels will comply with the Five-day Catch and Effort Reporting System (Conservation Measure 23-01) and Monthly Fine-scale Catch, Effort and Biological Data Reporting Systems (Conservation Measures 23-04 and 23-05). 2. All data required by the CCAMLR *Scientific Observers Manual* for finfish fisheries will be collected. These include:
(i)Position, date and depth at the start and end of every haul;
(ii)Haul-by-haul catch and catch per effort by species;
(iii)Haul-by-haul length frequency of common species;
(iv)Sex and gonad state of common species;
(v)Diet and stomach fullness;
(vi)Scales and/or otoliths for age determination;
(vii)Number and mass by species of by-catch of fish and other organisms;
(viii)Observation on occurrence and incidental mortality of seabirds and mammals in relation to fishing operations. 3. Data specific to longline fisheries will be collected. These include:
(i)Position and sea depth at each end of every line in a haul;
(ii)Setting, soak and hauling times;
(iii)Number and species of fish lost at surface;
(iv)Number of hooks set;
(v)Bait type;
(vi)Baiting success (%);
(vii)Hook type;
(viii)Sea and cloud conditions and phase of the moon at the time of setting the lines. Annex 41-01/B Research Plan for Exploratory Fisheries 1. Activities under this research plan shall not be exempted from any conservation measure in force. 2. This plan applies to all small-scale research units (SSRUs) as defined in Table 1 and Figure 1. 3. Except when fishing in Statistical Subareas 88.1 and 88.2 (see paragraph 5), any vessel undertaking prospecting or commercial fishing in any SSRU must undertake the following research activities:
(i)On first entry into an SSRU, the first 10 hauls, designated `first series', whether by trawl or longline, shall be designated `research hauls' and must satisfy the criteria set out in paragraph 4.
(ii)The next 10 hauls, or 10 tonnes of catch for longlining, whichever trigger level is achieved first, or 10 tonnes of catch for trawling, are designated the `second series'. Hauls in the second series can, at the discretion of the master, be fished as part of normal exploratory fishing. However, provided they satisfy the requirements of paragraph 4, these hauls can also be designated as research hauls.
(iii)On completion of the first and second series of hauls, if the master wishes to continue to fish within the SSRU, the vessel must undertake a `third series' which will result in a total of 20 research hauls being made in all three series. The third series of hauls shall be completed during the same visit as the first and second series in an SSRU.
(iv)On completion of 20 research hauls the vessel may continue to fish within the SSRU. 4. To be designated as a research haul:
(i)Each research haul must be separated by not less than 5 n miles from any other research haul, distance to be measured from the geographical mid-point of each research haul;
(ii)Each haul shall comprise: for longlines, at least 3 500 hooks and no more than 10 000 hooks; this may comprise a number of separate lines set in the same location; for trawls, at least 30 minutes effective fishing time as defined in the *Draft Manual for Bottom Trawl Surveys in the Convention Area* (SC-CAMLR-XI, Annex 5, Appendix H, Attachment E, paragraph 4);
(iii)Each haul of a longline shall have a soak time of not less than six hours, measured from the time of completion of the setting process to the beginning of the hauling process. 5. In the exploratory fisheries in Subareas 88.1 and 88.2, all data specified in the Data Collection Plan (Annex 41-01/A) of this conservation measure shall be collected for every haul; all fish of each *Dissostichus* species in a haul (up to a maximum of 35 fish) are to be measured and randomly sampled for biological studies (paragraphs 2(iv) to
(vi)of Annex 41-01/A). 6. In all other exploratory fisheries, all data specified in the Data Collection Plan (Annex 41-01/A) of this conservation measure shall be collected for every research haul; in particular, all fish in a research haul up to 100 fish are to be measured and at least 30 fish sampled for biological studies (paragraphs 2(iv) to
(vi)of Annex 41-01/A). Where more than 100 fish are caught, a method for randomly subsampling the fish should be applied. BILLING CODE 3510-22-P EN21DE07.002 EN21DE07.003 EN21DE07.004 EN21DE07.005 EN21DE07.006 BILLING CODE 3510-22-C Annex 41-01/C Tagging Program for Dissostichus spp. in Exploratory Fisheries 1. The responsibility for ensuring tagging, tag recovery and correct reporting shall lie with the Flag State of the fishing vessel. The fishing vessel shall cooperate with the CCAMLR scientific observer in undertaking the tagging program. 2. This program shall apply in each exploratory longline fishery, and any vessel that participates in more than one exploratory fishery shall apply the following in each exploratory fishery in which that vessel fishes:
(i)Each longline vessel shall tag and release *Dissostichus* spp., continuously while fishing, at a rate specified in the conservation measure for that fishery according to the CCAMLR Tagging Protocol. 1
(ii)The program shall target toothfish of all sizes in order to meet the tagging requirement, only toothfish that are in good condition shall be tagged and the availability of these fish shall be reported by the observer. All released toothfish must be double-tagged and releases should cover as broad a geographical area as possible. In regions where both species occur, the tagging rate shall to the extent practicable be in proportion to the species and sizes of *Dissostichus* spp. present in the catches.
(iii)All tags shall be clearly imprinted with a unique serial number and a return address so that the origin of tags can be traced in the case of recapture of the tagged toothfish. 1 From 1 September 2007, all tags for use in exploratory fisheries shall be sourced from the Secretariat.
(iv)Recaptured tagged fish (i.e. fish caught that have a previously inserted tag) shall not be re-released, even if at liberty for only a short period.
(v)All recaptured tagged fish should be biologically sampled (length, weight, sex, gonad stage), an electronic time-stamped photograph taken of the fish and tag, the otoliths recovered and the tag removed. 3. Toothfish that are tagged and released shall not be counted against the catch limits. 4. All relevant tag data and any data recording tag recaptures shall be reported electronically in the CCAMLR format 1 to the Executive Secretary
(i)by the vessel every month along with its monthly fine-scale catch and effort
(C2)data, and
(ii)by the observer as part of the data reporting requirements for observer data. 1 5. All relevant tag data, any data recording tag recaptures, and specimens (tags and otoliths) from recaptures shall also be reported electronically in the CCAMLR format 1 to the relevant regional tag data repository as detailed in the CCAMLR Tagging Protocol (available at *http://www.ccamlr.org* ). 1 In accordance with the CCAMLR Tagging Protocol for exploratory fisheries which is available from the Secretariat and included in the scientific observer logbook forms. Conservation Measure 41-02
(2007)Limits on the fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3 in the 2007/08 and 2008/09 seasons (Species: toothfish; Area: 48.3; Season: 2007/08 and 2008/09; Gear: longline, pot) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 31-01: Access 1. The fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3 shall be conducted by vessels using longlines and pots only. 2. For the purpose of this fishery, the area open to the fishery is defined as that portion of Statistical Subarea 48.3 that lies within the area bounded by latitudes 52°30′S and 56°0′S and by longitudes 33°30′W and 48°0′W. 3. A map illustrating the area defined by paragraph 2 is appended to this conservation measure (Annex 41-02/A). The portion of Statistical Subarea 48.3 outside that defined above shall be closed to directed fishing for *Dissostichus eleginoides* in the 2007/08 and 2008/09 seasons. Catch limit 4. The total catch of *Dissostichus eleginoides* in Statistical Subarea 48.3 in the 2007/08 and 2008/09 seasons shall be limited to 3 920 tonnes in each season. The catch limit shall be further subdivided between the Management Areas shown in Annex 41-02/A as follows: Management Area A: 0 tonnes Management Area B: 1 176 tonnes in each season Management Area C: 2 744 tonnes in each season. Season 5. For the purpose of the longline fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3, the 2007/08 and 2008/09 seasons are defined as the period from 1 May to 31 August in each season, or until the catch limit is reached, whichever is sooner. For the purpose of the pot fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3, the 2007/08 and 2008/09 seasons are defined as the period from 1 December to 30 November, or until the catch limit is reached, whichever is sooner. The season for longline fishing operations may be extended to 14 September in each season for any vessel which has demonstrated full compliance with Conservation Measure 25-02 in the previous season. This extension to the season shall also be subject to a catch limit of three
(3)seabirds per vessel. If three seabirds are caught during the season extension, fishing shall cease immediately for that vessel. By-catch 6. The by-catch of crab in any pot fishery undertaken shall be counted against the catch limit in the crab fishery in Statistical Subarea 48.3. 7. The by-catch of finfish in the fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3 in the 2007/08 and 2008/09 seasons shall not exceed 196 tonnes for skates and rays and 196 tonnes for *Macrourus* spp. in each season. For the purpose of these by-catch limits, ` *Macrourus* spp.' and `skates and rays' shall each be counted as a single species. 8. If the by-catch of any one species is equal to or greater than 1 tonne in any one haul or set, then the fishing vessel shall move to another location at least 5 n miles 1 distant. The fishing vessel shall not return to any point within 5 n miles of the location where the by-catch exceeded 1 tonne for a period of at least five days. 2 The location where the by-catch exceeded 1 tonne is defined as the path 3 followed by the fishing vessel. Mitigation 9. The operation of this fishery shall be carried out in accordance with Conservation Measure 25-02 so as to minimise the incidental mortality of seabirds in the course of fishing. Observers 10. Each vessel participating in this fishery shall have at least one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. Data: Catch/effort 11. For the purpose of implementing this conservation measure, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 12. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus eleginoides* and by-catch species are defined as any species other than *Dissostichus eleginoides* . 13. The total number and weight of *Dissostichus eleginoides* discarded, including those with the `jellymeat' condition, shall be reported. These fish will count towards the total allowable catch. Data: Biological 14. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Research fishing 15. Research fishing under the provisions of Conservation Measure 24-01 shall be limited to 10 tonnes of catch and to one vessel in Management Area A shown in the map in Annex 41-02/A during each season. 16. Catches of *Dissostichus eleginoides* taken under the provisions of Conservation Measure 24-01 in the area of the fishery defined in this conservation measure shall be considered as part of the catch limit. Environmental protection 17. Conservation Measure 26-01 applies. 1 This provision concerning the minimum distance separating fishing locations is adopted pending the adoption of a more appropriate definition of a fishing location by the Commission. 2 The specified period is adopted in accordance with the reporting period specified in Conservation Measure 23-01, pending the adoption of a more appropriate period by the Commission. 3 For a longline or a pot, the path is defined from the point at which the first anchor of a set was deployed to the point at which the last anchor of that set was deployed. BILLING CODE 3510-22-P EN21DE07.007 BILLING CODE 3510-22-C Conservation Measure 41-04
(2007)Limits on the exploratory Fishery for Dissostichus spp. in Statistical Subarea 48.6 in the 2007/08 season (Species: Toothfish; Area: 48.6; Season: 2007/08; Gear: Longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02: Access 1. Fishing for *Dissostichus* spp. in Statistical Subarea 48.6 shall be limited to the exploratory longline fishery by Japan, Republic of Korea, New Zealand and South Africa. The fishery shall be conducted by Japanese, Korean, New Zealand and South African flagged vessels using longlines only. No more than one vessel per country shall fish at any one time. Catch limit 2. The total catch of *Dissostichus* spp. in Statistical Subarea 48.6 in the 2007/08 season shall not exceed a precautionary catch limit of 200 tonnes north of 60°S and 200 tonnes south of 60°S. Season 3. For the purpose of the exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 48.6, the 2007/08 season is defined as the period from 1 December 2007 to 30 November 2008. By-catch 4. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 5. The exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 48.6 shall be carried out in accordance with the provisions of Conservation Measure 25-02, except paragraph 4 (night setting), which shall not apply as long as the requirements of Conservation Measure 24-02 are met. 6. Any vessel catching a total of three
(3)seabirds shall immediately revert to night setting in accordance with Conservation Measure 25-02. Observers 7. Each vessel participating in the fishery shall have at least two scientific observers, one of whom shall be an observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period. Data: Catch/effort 8. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 9. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 10. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Research 11. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. 12. Toothfish shall be tagged at a rate of at least one fish per tonne green weight caught. Environmental protection 13. Conservation Measure 26-01 applies. 14. There shall be no offal discharge in this fishery. Conservation Measure 41-05
(2007)Limits on the Exploratory Fishery for Dissostichus spp. in Statistical Division 58.4.2 in the 2007/08 Season (Species: Toothfish; Area: 58.4.2; Season: 2007/08; Gear: Longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02, and notes that this measure would be for one year and that data arising from these activities would be reviewed by the Scientific Committee: Access 1. Fishing for *Dissostichus* spp. in Statistical Division 58.4.2 shall be limited to the exploratory longline fishery by Australia, Japan, Republic of Korea, Namibia, New Zealand, South Africa, Spain, Ukraine and Uruguay. The fishery shall be conducted by one
(1)Australian, one
(1)Japanese, five
(5)Korean, two
(2)Namibian, two
(2)New Zealand, one
(1)South African, one
(1)Spanish, one
(1)Ukrainian and one
(1)Uruguayan flagged vessels using longlines only. Catch limit 2. The total catch of *Dissostichus* spp. in Statistical Division 58.4.2, in the 2007/08 season shall not exceed a precautionary catch limit of 780 tonnes, of which no more than 260 tonnes shall be taken in any one of the five small-scale research units (SSRUs) as detailed in Annex B of Conservation Measure 41-01. 3. Catch limits for each of the SSRUs for Statistical Division 58.4.2 shall be as follows: A—260 tonnes; B—0 tonnes; C—260 tonnes; D—0 tonnes; E—260 tonnes. Season 4. For the purpose of the exploratory longline fishery for *Dissostichus* spp. in Statistical Division 58.4.2, the 2007/08 season is defined as the period from 1 December 2007 to 30 November 2008. Fishing operations 5. The exploratory longline fishery for *Dissostichus* spp. in Statistical Division 58.4.2 shall be carried out in accordance with the provisions of Conservation Measure 41-01, except paragraph 6. 6. Fishing will be prohibited in depths less than 550 m in order to protect benthic communities. By-catch 7. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 8. The exploratory longline fishery for *Dissostichus* spp. in Statistical Division 58.4.2 shall be carried out in accordance with the provisions of Conservation Measure 25-02, except paragraph 4 (night setting) shall not apply, providing that vessels comply with Conservation Measure 24-02. 9. Any vessel catching a total of three
(3)seabirds shall immediately revert to night setting in accordance with Conservation Measure 25-02. Observers 10. Each vessel participating in the fishery shall have at least two scientific observers, one of whom shall be an observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period. Research 11. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. 12. Toothfish shall be tagged at a rate of at least three fish per tonne green weight caught. Data: Catch/effort 13. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 14. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 15. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 16. Conservation Measure 26-01 applies. Conservation Measure 41-06
(2007)Limits on the Exploratory Fishery for Dissostichus spp. on Elan Bank (Statistical Division 58.4.3a) Outside Areas of National Jurisdiction in the 2007/08 Season (Species: Toothfish; Area: 58.4.3a; Season: 2007/08; Gear: Longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02: Access 1. Fishing for *Dissostichus* spp. on Elan Bank (Statistical Division 58.4.3a) outside areas of national jurisdiction shall be limited to the exploratory fishery by Uruguay. The fishery shall be conducted by one
(1)Uruguayan flagged vessel using longlines only. Catch limit 2. The total catch of *Dissostichus* spp. on Elan Bank (Statistical Division 58.4.3a) outside areas of national jurisdiction in the 2007/08 season shall not exceed a precautionary catch limit of 250 tonnes. Season 3. For the purpose of the exploratory longline fishery for *Dissostichus* spp. on Elan Bank (Statistical Division 58.4.3a) outside areas of national jurisdiction, the 2007/08 season is defined as the period from 1 May to 31 August 2008, or until the catch limit is reached, whichever is sooner. By-catch 4. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 5. The operation of this fishery shall be carried out in accordance with Conservation Measure 25-02 so as to minimise the incidental mortality of seabirds in the course of fishing. 6. The fishery on Elan Bank (Statistical Division 58.4.3a) outside areas of national jurisdiction, may take place outside the prescribed season (paragraph 3) provided that, prior to entry into force of the licence and prior to entering the Convention Area, each vessel shall demonstrate its capacity to comply with longline weighting as approved by the Scientific Committee and described in Conservation Measure 24-02 and such data shall be reported to the Secretariat immediately. 7. Should a total of three
(3)seabirds be caught by a vessel outside the normal season (defined in paragraph 3), the vessel shall cease fishing immediately and shall not be permitted to fish outside the normal fishing season for the remainder of the 2007/08 fishing season. Observers 8. Each vessel participating in this fishery shall have at least one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. Data: Catch/effort 9. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 10. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 11. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Research 12. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. 13. Toothfish shall be tagged at a rate of at least three fish per tonne green weight caught. Environmental protection 14. Conservation Measure 26-01 applies. Conservation Measure 41-07
(2007)Limits on the exploratory Fishery for Dissostichus spp. on BANZARE Bank (Statistical Division 58.4.3b) Outside Areas of National Jurisdiction in the 2007/08 Season (Species: Toothfish; Area: 58.4.3b; Season: 2007/08; Gear: Longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02: Access 1. Fishing for *Dissostichus* spp. on BANZARE Bank (Statistical Division 58.4.3b) outside areas of national jurisdiction shall be limited to the exploratory fishery by Australia, Japan, Republic of Korea, Namibia, Spain and Uruguay. The fishery shall be conducted by Australian, Japanese, Korean, Namibian, Spanish and Uruguayan flagged vessels using longlines only. No more than one vessel per country shall fish at any one time. Catch limit 2. The total catch of *Dissostichus* spp. on BANZARE Bank (Statistical Division 58.4.3b) outside areas of national jurisdiction in the 2007/08 season shall not exceed:
(i)A precautionary catch limit of 150 tonnes applied as follows: SSRU A—150 tonnes 1 SSRU B—0 tonnes;
(ii)An additional catch limit of 50 tonnes for the scientific research survey 2 in SSRUs A and B in 2007/08. Season 3. For the purpose of the exploratory longline fishery for *Dissostichus* spp. on BANZARE Bank (Statistical Division 58.4.3b) outside areas of national jurisdiction, the 2007/08 season 1 is defined as the period from 1 May to 31 August 2008, or until the catch limit is reached, whichever is sooner. By-catch 4. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 5. The operation of this fishery shall be carried out in accordance with Conservation Measure 25-02 so as to minimise the incidental mortality of seabirds in the course of fishing. 6. The fishery on BANZARE Bank (Statistical Division 58.4.3b) outside areas of national jurisdiction, may take place outside the prescribed season 1 (paragraph 3) provided that, prior to entry into force of the licence and prior to entering the Convention Area, each vessel shall demonstrate its capacity to comply with experimental line-weighting trials as approved by the Scientific Committee and described in Conservation Measure 24-02 and such data shall be reported to the Secretariat immediately. 7. Should a total of three
(3)seabirds be caught by a vessel outside the normal season (defined in paragraph 3), the vessel shall cease fishing immediately and shall not be permitted to fish outside the normal fishing season for the remainder of the 2007/08 fishing season. Observers 8. Each vessel participating in this fishery shall have at least one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. Data: Catch/effort 9. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 10. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 11. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Research 12. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. 13. Toothfish shall be tagged at a rate of at least three fish per tonne green weight caught. Environmental protection 14. Conservation Measure 26-01 applies. 1 Fishing is not to occur during the period from 16 March 2008 until the end of the scientific research survey or 1 June 2008, whichever is sooner. 2 The scientific research survey will be that notified by Australia (SC-CAMLR-XXVI, paragraphs 9.8 to 9.10) and completed prior to 1 June 2008. Australia will notify the Secretariat at least three months before the start of the survey of the date of that start, and will further notify the Secretariat of the date of completion of the survey. The Secretariat will circulate this information to Members. Conservation Measure 41-08
(2007)Limits on the Fishery for Dissostichus Eleginoides in Statistical Division 58.5.2 in the 2007/08 and 2008/09 Seasons (Species: Toothfish; Area: 58.5.2; Season: 2007/08 and 2008/09; Gear: Various) Access 1. The fishery for *Dissostichus eleginoides* in Statistical Division 58.5.2 shall be conducted by vessels using trawls, pots or longlines only. Catch limit 2. The total catch of *Dissostichus eleginoides* in Statistical Division 58.5.2 in the 2007/08 and 2008/09 seasons shall be limited to 2 500 tonnes west of 79°20′ E. Season 3. For the purpose of the trawl and pot fisheries for *Dissostichus eleginoides* in Statistical Division 58.5.2, the 2007/08 and 2008/09 seasons are defined as the period from 1 December to 30 November, or until the catch limit is reached, whichever is sooner. For the purpose of the longline fishery for *Dissostichus eleginoides* in Statistical Division 58.5.2, the 2007/08 and 2008/09 seasons are defined as the period from 1 May to 14 September in each season, or until the catch limit is reached, whichever is sooner. The season for longline fishing operations may be extended from 15 April to 30 April and 15 September to 31 October in each season for any vessel which has demonstrated full compliance with Conservation Measure 25-02 in the previous season. These extensions to the season will also be subject to a total catch limit of three
(3)seabirds per vessel. If three seabirds are caught during the season extension, fishing throughout the season extensions shall cease immediately for that vessel. By-catch 4. Fishing shall cease if the by-catch of any species reaches its by-catch limit as set out in Conservation Measure 33-02. Mitigation 5. The operation of the trawl fishery shall be carried out in accordance with Conservation Measure 25-03 so as to minimise the incidental mortality of seabirds and mammals through the course of fishing. The operation of the longline fishery shall be carried out in accordance with Conservation Measure 25-02, except paragraph 4 (night setting) shall not apply for vessels using integrated weighted lines
(IWLs)during the period 1 May to 31 October in each season. Such vessels may deploy IWL gear during daylight hours if, prior to entry into force of the licence and prior to entering the Convention Area, each vessel shall demonstrate its capacity to comply with experimental line-weighting trials as approved by the Scientific Committee and described in Conservation Measure 24-02. During the period 15 April to 30 April in each season, vessels shall use IWL gear and in a manner that ensures lines are set and hauled sequentially, in conjunction with night setting and paired streamer lines. Observers 6. Each vessel participating in this fishery shall have at least one scientific observer, and may include one appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period, with the exception of the period 15 April to 30 April in each season when two scientific observers shall be carried. Data: Catch/effort 7. For the purpose of implementing this conservation measure, the following shall apply:
(i)The Ten-day Catch and Effort Reporting System set out in Annex 41-08/A;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Annex 41-08/A. Fine-scale data shall be submitted on a haul-by-haul basis. 8. For the purpose of Annex 41-08/A, the target species is *Dissostichus eleginoides* and by-catch species are defined as any species other than *Dissostichus eleginoides* . 9. The total number and weight of *Dissostichus eleginoides* discarded, including those with the ‘jellymeat' condition, shall be reported. These fish will count towards the total allowable catch. Data: Biological 10. Fine-scale biological data, as required under Annex 41-08/A, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 11. Conservation Measure 26-01 applies. Annex 41-08/A Data Reporting System A ten-day catch and effort reporting system shall be implemented:
(i)For the purpose of implementing this system, the calendar month shall be divided into three reporting periods, viz: day 1 to day 10, day 11 to day 20 and day 21 to the last day of the month. The reporting periods are hereafter referred to as periods A, B and C;
(ii)At the end of each reporting period, each Contracting Party participating in the fishery shall obtain from each of its vessels information on total catch and total days and hours fished for that period and shall, by cable, telex, facsimile or electronic transmission, transmit the aggregated catch and days and hours fished for its vessels so as to reach the Executive Secretary no later than the end of the next reporting period;
(iii)A report must be submitted by every Contracting Party taking part in the fishery for each reporting period for the duration of the fishery, even if no catches are taken;
(iv)The catch of *Dissostichus eleginoides* and of all by-catch species must be reported;
(v)Such reports shall specify the month and reporting period (A, B and C) to which each report refers;
(vi)Immediately after the deadline has passed for receipt of the reports for each period, the Executive Secretary shall notify all Contracting Parties engaged in fishing activities in the division of the total catch taken during the reporting period and the total aggregate catch for the season to date;
(vii)At the end of every three reporting periods, the Executive Secretary shall inform all Contracting Parties of the total catch taken during the three most recent reporting periods and the total aggregate catch for the season to date. A fine-scale catch, effort and biological data reporting system shall be implemented:
(i)The scientific observer(s) aboard each vessel shall collect the data required to complete the CCAMLR fine-scale catch and effort data form C1 for trawl fishing, form C2 for longline fishing, or form C5 for pot fishing, latest versions. These data shall be submitted to the CCAMLR Secretariat not later than one month after the vessel returns to port;
(ii)The catch of *Dissostichus eleginoides* and of all by-catch species must be reported;
(iii)The numbers of seabirds and marine mammals of each species caught and released or killed must be reported;
(iv)The scientific observer(s) aboard each vessel shall collect data on the length composition from representative samples of *Dissostichus eleginoides* and by-catch species:
(a)Length measurements shall be to the nearest centimetre below;
(b)Representative samples of length composition shall be taken from each fine-scale grid rectangle (0.5° latitude by 1° longitude) fished in each calendar month;
(v)The above data shall be submitted to the CCAMLR Secretariat not later than one month after the vessel returns to port. Conservation Measure 41-09
(2007)Limits on the exploratory Fishery for Dissostichus spp. in Statistical Subarea 88.1 in the 2007/08 season (Species: Toothfish; Area: 88.1; Season: 2007/08; Gear: Longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02: Access 1. Fishing for *Dissostichus* spp. in Statistical Subarea 88.1 shall be limited to the exploratory longline fishery by Argentina, Republic of Korea, Namibia, New Zealand, Russia, South Africa, Spain, UK and Uruguay. The fishery shall be conducted by a maximum in the season of two
(2)Argentine, five
(5)Korean, one
(1)Namibian, four
(4)New Zealand, two
(2)Russian, one
(1)South African, one
(1)Spanish, three
(3)UK and two
(2)Uruguayan flagged vessels using longlines only. Catch limit 2. The total catch of *Dissostichus* spp. in Statistical Subarea 88.1 in the 2007/08 season shall not exceed a precautionary catch limit of 2 700 tonnes of which 40 tonnes is set aside for research fishing (see paragraph 12) and the remaining 2 660 tonnes is applied as follows: SSRU A—0 tonnes SSRUs B, C and G—313 tonnes total SSRU D—0 tonnes SSRU E—0 tonnes SSRU F—0 tonnes SSRUs H, I and K—1 698 tonnes total SSRU J—495 tonnes SSRU L—154 tonnes. Season 3. For the purpose of the exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 88.1, the 2007/08 season is defined as the period from 1 December 2007 to 31 August 2008. Fishing operations 4. The exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 88.1 shall be carried out in accordance with the provisions of Conservation Measure 41-01, except paragraph 6. By-catch 5. The total by-catch in Statistical Subarea 88.1 in the 2007/08 season shall not exceed a precautionary catch limit of 133 tonnes of skates and rays, and 426 tonnes of *Macrourus* spp. Within these total by-catch limits, individual limits will apply as follows: SSRU A—0 tonnes of any species SSRUs B, C and G total—50 tonnes of skates and rays, 50 tonnes of *Macrourus* spp., 60 tonnes of other species SSRU D—0 tonnes of any species SSRU E—0 tonnes of any species SSRU F—0 tonnes of any species SSRUs H, I and K total—84 tonnes of skates and rays, 271 tonnes of *Macrourus* spp., 60 tonnes of other species SSRU J—50 tonnes of skates and rays, 79 tonnes of *Macrourus* spp., 20 tonnes of other species SSRU L—50 tonnes of skates and rays, 24 tonnes of *Macrourus* spp., 20 tonnes of other species. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 6. The exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 88.1 shall be carried out in accordance with the provisions of Conservation Measure 25-02, except paragraph 4 (night setting), which shall not apply as long as the requirements of Conservation Measure 24-02 are met. 7. Any vessel catching a total of three
(3)seabirds shall immediately revert to night setting in accordance with Conservation Measure 25-02. Observers 8. Each vessel participating in the fishery shall have at least two scientific observers, one of whom shall be an observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period. VMS 9. Each vessel participating in this exploratory longline fishery shall be required to operate a VMS at all times, in accordance with Conservation Measure 10-04. CDS 10. Each vessel participating in this exploratory longline fishery shall be required to participate in the Catch Documentation Scheme for *Dissostichus* spp., in accordance with Conservation Measure 10-05. Research 11. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. The setting of research hauls (Conservation Measure 41-01, Annex B, paragraphs 3 and 4) is not required. 12. Research fishing under Conservation Measure 24-01 shall be limited to 10 tonnes of *Dissostichus* spp. green weight and a single vessel in each of SSRUs A, D, E and F during the 2007/08 season. 13. Toothfish shall be tagged at a rate of at least one fish per tonne green weight caught in each SSRU, except in SSRUs A, D, E and F where, under the 10-tonne research fishing limit, toothfish shall be tagged at a rate of at least three fish per tonne green weight caught. Data: Catch/effort 14. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)the Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)the Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 15. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 16. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 17. Conservation Measure 26-01 applies. Additional elements 18. Fishing for *Dissostichus* spp. in Statistical Subarea 88.1 shall be prohibited within 10 n miles of the coast of the Balleny Islands. Conservation Measure 41-10
(2007)Limits on the Exploratory Fishery for Dissostichus spp. in Statistical Subarea 88.2 in the 2007/08 Season (Species: toothfish; Area: 88.2; Season: 2007/08; Gear: longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02: Access 1. Fishing for *Dissostichus* spp. in Statistical Subarea 88.2 shall be limited to the exploratory longline fishery by Argentina, New Zealand, Russia, South Africa, Spain, UK and Uruguay. The fishery shall be conducted by a maximum in the season of two
(2)Argentine, four
(4)New Zealand, two
(2)Russian, one
(1)South African, one
(1)Spanish, three
(3)UK and two
(2)Uruguayan flagged vessels using longlines only. Catch limit 2. The total catch of *Dissostichus* spp. in Statistical Subarea 88.2 south of 65 S in the 2007/08 season shall not exceed a precautionary catch limit of 567 tonnes of which 20 tonnes is set aside for research fishing (see paragraph 12) and the remaining 547 tonnes is applied as follows: SSRU A-0 tonnes SSRU B-0 tonnes SSRUs C, D, F and G-206 tonnes total SSRU E-341 tonnes. Season 3. For the purpose of the exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 88.2, the 2007/08 season is defined as the period from 1 December 2007 to 31 August 2008. 4. The exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 88.2 shall be carried out in accordance with the provisions of Conservation Measure 41-01, except paragraph 6. By-catch 5. The total by-catch in Statistical Subarea 88.2 in the 2007/08 season shall not exceed a precautionary catch limit of 50 tonnes of skates and rays, and 88 tonnes of *Macrourus* spp. Within these total by-catch limits, individual limits will apply as follows: SSRU A-0 tonnes of any species SSRU B-0 tonnes of any species SSRUs C, D, F, G-50 tonnes of skates and rays, 33 tonnes of *Macrourus* spp., 20 tonnes of other species in any SSRU SSRU E-50 tonnes of skates and rays, 55 tonnes of *Macrourus* spp., 20 tonnes of other species. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 6. The exploratory longline fishery for *Dissostichus* spp. in Statistical Subarea 88.2 shall be carried out in accordance with the provisions of Conservation Measure 25-02, except paragraph 4 (night setting), which shall not apply as long as the requirements of ConservationMeasure 24-02 are met. 7. Any vessel catching a total of three
(3)seabirds shall immediately revert to night setting in accordance with Conservation Measure 25-02. Observers 8. Each vessel participating in the fishery shall have at least two scientific observers, one of whom shall be an observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period. VMS 9. Each vessel participating in this exploratory longline fishery shall be required to operate a VMS at all times, in accordance with Conservation Measure 10-04. CDS 10. Each vessel participating in this exploratory longline fishery shall be required to participate in the Catch Documentation Scheme for *Dissostichus* spp., in accordance with Conservation Measure 10-05. Research 11. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. The setting of research hauls (Conservation Measure 41-01, Annex B, paragraphs 3 and 4) is not required. 12. Research fishing under Conservation Measure 24-01 shall be limited to 10 tonnes of *Dissostichus* spp. green weight and a single vessel in each of SSRUs A and B during the 2007/08 season. 13. Toothfish shall be tagged at a rate of at least one fish per tonne green weight caught in each SSRU, except in SSRUs A and B where, under the 10-tonne research fishing limit, toothfish shall be tagged at a rate of at least three fish per tonne green weight caught. Data: Catch/effort 14. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 15. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 16. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 17. Conservation Measure 26-01 applies. Conservation Measure 41-11
(2007)Limits on the Exploratory Fishery for Dissostichus spp. in Statistical Division 58.4.1 in the 2007/08 Season (Species: Toothfish; Area: 58.4.1; Season: 2007/08; Gear: Longline) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 21-02, and notes that this measure would be for one year and that data arising from these activities would be reviewed by the Scientific Committee: Access 1. Fishing for *Dissostichus* spp. in Statistical Division 58.4.1 shall be limited to the exploratory longline fishery by Australia, Japan, Republic of Korea, Namibia, New Zealand, Spain, Ukraine and Uruguay. The fishery shall be conducted by one
(1)Australian, one
(1)Japanese, five
(5)Korean, two
(2)Namibian, three
(3)New Zealander, one
(1)Spanish, one
(1)Ukrainian and one
(1)Uruguayan flagged vessels using longlines only. Catch limit 2. The total catch of *Dissostichus* spp. in Statistical Division 58.4.1 in the 2007/08 season shall not exceed a precautionary catch limit of 600 tonnes, of which no more than 200 tonnes shall be taken in any one of the eight small-scale research units (SSRUs) as detailed in Annex B of Conservation Measure 41-01. 3. Catch limits for each of the SSRUs for Statistical Division 58.4.1 shall be as follows: SSRU A—0 tonnes SSRU B—0 tonnes SSRU C—200 tonnes SSRU D—0 tonnes SSRU E—200 tonnes SSRU F—0 tonnes SSRU G—200 tonnes SSRU H—0 tonnes. Season 4. For the purpose of the exploratory longline fishery for *Dissostichus* spp. in Statistical Division 58.4.1, the 2007/08 season is defined as the period from 1 December 2007 to 30 November 2008. Fishing operations 5. The exploratory longline fishery for *Dissostichus* spp. in Statistical Division 58.4.1 shall be carried out in accordance with the provisions of Conservation Measure 41-01, except paragraph 6. 6. Fishing will be prohibited in depths less than 550 m in order to protect benthic communities. By-catch 7. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-03. Mitigation 8. The exploratory longline fishery for *Dissostichus* spp. in Statistical Division 58.4.1 shall be carried out in accordance with the provisions of Conservation Measure 25-02, except paragraph 4 (night setting) shall not apply, providing that vessels comply with Conservation Measure 24-02. 9. Any vessel catching a total of three
(3)seabirds shall immediately revert to night setting in accordance with Conservation Measure 25-02. Observers 10. Each vessel participating in the fishery shall have at least two scientific observers, one of whom shall be an observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period. Research 11. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the Research Plan and Tagging Program described in Conservation Measure 41-01, Annex B and Annex C respectively. 12. Research fishing under Conservation Measure 24-01 shall be limited to 10 tonnes of *Dissostichus* spp. green weight and a single vessel in each of SSRUs A, B, D, F and H during the 2007/08 season. 13. Toothfish shall be tagged at a rate of at least three fish per tonne green weight caught. Data: Catch/effort 14. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 15. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Dissostichus* spp. and by-catch species are defined as any species other than *Dissostichus* spp. Data: Biological 16. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 17. Conservation Measure 26-01 applies. 18. There shall be no offal discharge in this fishery. Conservation Measure 42-01
(2007)Limits on the Fishery for Champsocephalus gunnari in Statistical Subarea 48.3 in the 2007/08 Season (Species: Icefish; Area: 48.3; Season: 2007/08; Gear: Trawl) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 31-01: Access 1. The fishery for *Champsocephalus gunnari* in Statistical Subarea 48.3 shall be conducted by vessels using trawls only. The use of bottom trawls in the directed fishery for *Champsocephalus gunnari* in Statistical Subarea 48.3 is prohibited. 2. Fishing for *Champsocephalus gunnari* shall be prohibited within 12 n miles of the coast of South Georgia during the period 1 March to 31 May. Catch limit 3. The total catch of *Champsocephalus gunnari* in Statistical Subarea 48.3 in the 2007/08 season shall be limited to 2 462 tonnes. 4. Where any haul contains more than 100 kg of *Champsocephalus gunnari* , and more than 10% of the *Champsocephalus gunnari* by number are smaller than 240 mm total length, the fishing vessel shall move to another fishing location at least 5 n miles distant. 1 The fishing vessel shall not return to any point within 5 n miles of the location where the catch of small *Champsocephalus gunnari* exceeded 10%, for a period of at least five days 2 . The location where the catch of small *Champsocephalus gunnari* exceeded 10% is defined as the path followed by the fishing vessel from the point at which the fishing gear was first deployed from the fishing vessel to the point at which the fishing gear was retrieved by the fishing vessel. Season 5. For the purpose of the trawl fishery for *Champsocephalus gunnari* in Statistical Subarea 48.3, the 2007/08 season is defined as the period from 15 November 2007 to 14 November 2008, or until the catch limit is reached, whichever is sooner. By-catch 6. The by-catch in this fishery shall be regulated as set out in Conservation Measure 33-01. If, in the course of the directed fishery for *Champsocephalus gunnari* , the by-catch in any one haul of any of the species named in Conservation Measure 33-01. • Is greater than 100 kg and exceeds 5% of the total catch of all fish by weight, or • Is equal to or greater than 2 tonnes, then The fishing vessel shall move to another location at least 5 n miles distant. 1 The fishing vessel shall not return to any point within 5 n miles of the location where the by-catch of species named in Conservation Measure 33-01 exceeded 5% for a period of at least five days. 2 The location where the by-catch exceeded 5% is defined as the path followed by the fishing vessel from the point at which the fishing gear was first deployed from the fishing vessel to the point at which the fishing gear was retrieved by the fishing vessel. Mitigation 7. The operation of this fishery shall be carried out in accordance with Conservation Measure 25-03 so as to minimise the incidental mortality of seabirds in the course of the fishery. Vessels shall use net binding 3 and consider adding weight to the codend to reduce seabird captures during shooting operations. 8. Should any vessel catch a total of 20 seabirds, it shall cease fishing and shall be excluded from further participation in the fishery in the 2007/08 season. Observers 9. Each vessel participating in this fishery shall have at least one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. Data: Catch/effort 10. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Five-day Catch and Effort Reporting System set out in Conservation Measure 23-01;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 11. For the purpose of Conservation Measures 23-01 and 23-04, the target species is *Champsocephalus gunnari* and by-catch species are defined as any species other than *Champsocephalus gunnari* . Data: Biological 12. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 14. Conservation Measure 26-01 applies. 1 This provision concerning the minimum distance separating fishing locations is adopted pending the adoption of a more appropriate definition of a fishing location by the Commission. 2 The specified period is adopted in accordance with the reporting period specified in Conservation Measure 23-01, pending the adoption of a more appropriate period by the Commission. 3 See SC-CAMLR-XXV, Annex 5, Appendix D, paragraph 59 for guidelines for net binding. Conservation Measure 42-02
(2007)Limits on the Fishery for Champsocephalus gunnari in Statistical Division 58.5.2 in the 2007/08 Season (Species: Icefish; Area: 58.5.2; Season: 2007/08; Gear: Trawl) Access 1. The fishery for *Champsocephalus gunnari* in Statistical Division 58.5.2 shall be conducted by vessels using trawls only. 2. For the purpose of this fishery for *Champsocephalus gunnari* , the area open to the fishery is defined as that portion of Statistical Division 58.5.2 that lies within the area enclosed by a line:
(i)Starting at the point where the meridian of longitude 72°15′E intersects the Australia-France Maritime Delimitation Agreement Boundary then south along the meridian to its intersection with the parallel of latitude 53°25′S;
(ii)Then east along that parallel to its intersection with the meridian of longitude 74°E;
(iii)Then northeasterly along the geodesic to the intersection of the parallel of latitude 52°40′S and the meridian of longitude 76°E;
(iv)Then north along the meridian to its intersection with the parallel of latitude 52°S;
(v)Then northwesterly along the geodesic to the intersection of the parallel of latitude 51°S with the meridian of longitude 74°30′E;
(vi)Then southwesterly along the geodesic to the point of commencement. 3. A chart illustrating the above definition is appended to this conservation measure (Annex 42-02/A). Areas in Statistical Division 58.5.2 outside that defined above shall be closed to directed fishing for *Champsocephalus gunnari* . Catch limit 4. The total catch of *Champsocephalus gunnari* in Statistical Division 58.5.2 in the 2007/08 season shall be limited to 220 tonnes. 5. Where any haul contains more than 100 kg of *Champsocephalus gunnari* , and more than 10% of the *Champsocephalus gunnari* by number are smaller than the specified minimum legal total length, the fishing vessel shall move to another fishing location at least 5 n miles distant. 1 The fishing vessel shall not return to any point within 5 n miles of the location where the catch of small *Champsocephalus gunnari* exceeded 10% for a period of at least five days. 2 The location where the catch of small *Champsocephalus gunnari* exceeded 10% is defined as the path followed by the fishing vessel from the point at which the fishing gear was first deployed from the fishing vessel to the point at which the fishing gear was retrieved by the fishing vessel. The minimum legal total length shall be 240 mm. Season 6. For the purpose of the trawl fishery for *Champsocephalus gunnari* in Statistical Division 58.5.2, the 2007/08 season is defined as the period from 1 December 2007 to 30 November 2008, or until the catch limit is reached, whichever is sooner. By-catch 7. Fishing shall cease if the by-catch of any species reaches its by-catch limit as set out in Conservation Measure 33-02. Mitigation 8. The operation of this fishery shall be carried out in accordance with Conservation Measure 25-03 so as to minimise the incidental mortality of seabirds in the course of fishing. Observers 9. Each vessel participating in this fishery shall have at least one scientific observer, and may include one appointed in accordance with the CCAMLR Scheme of International Scientific Observation, on board throughout all fishing activities within the fishing period. Data: Catch/effort 10. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Ten-day Catch and Effort Reporting System set out in Annex 42-02/B;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Annex 42-02/B. Fine-scale data shall be submitted on a haul-by-haul basis. 11. For the purpose of Annex 42-02/B, the target species is *Champsocephalus gunnari* and by-catch species are defined as any species other than *Champsocephalus gunnari* . Data: Biological 12. Fine-scale biological data, as required under Annex 42-02/B, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Environmental protection 13. Conservation Measure 26-01 applies. 1 This provision concerning the minimum distance separating fishing locations is adopted pending the adoption of a more appropriate definition of a fishing location by the Commission. 2 The specified period is adopted in accordance with the reporting period specified in Conservation Measure 23-01, pending the adoption of a more appropriate period by the Commission. BILLING CODE 3510-22-P EN21DE07.008 BILLING CODE 3510-22-C Annex 42-02/B Data Reporting System A ten-day catch and effort reporting system shall be implemented:
(i)For the purpose of implementing this system, the calendar month shall be divided into three reporting periods, viz: day 1 to day 10, day 11 to day 20 and day 21 to the last day of the month. The reporting periods are hereafter referred to as periods A, B and C;
(ii)At the end of each reporting period, each Contracting Party participating in the fishery shall obtain from each of its vessels information on total catch and total days and hours fished for that period and shall, by cable, telex, facsimile or electronic transmission, transmit the aggregated catch and days and hours fished for its vessels so as to reach the Executive Secretary no later than the end of the next reporting period;
(iii)A report must be submitted by every Contracting Party taking part in the fishery for each reporting period for the duration of the fishery, even if no catches are taken;
(iv)The catch of *Champsocephalus gunnari* and of all by-catch species must be reported;
(v)Such reports shall specify the month and reporting period (A, B and C) to which each report refers;
(vi)Immediately after the deadline has passed for receipt of the reports for each period, the Executive Secretary shall notify all Contracting Parties engaged in fishing activities in the division of the total catch taken during the reporting period and the total aggregate catch for the season to date;
(vii)At the end of every three reporting periods, the Executive Secretary shall inform all Contracting Parties of the total catch taken during the three most recent reporting periods and the total aggregate catch for the season to date. A fine-scale catch, effort and biological data reporting system shall be implemented:
(i)The scientific observer(s) aboard each vessel shall collect the data required to complete the CCAMLR fine-scale catch and effort data form C1, latest version. These data shall be submitted to the CCAMLR Secretariat not later than one month after the vessel returns to port;
(ii)The catch of *Champsocephalus gunnari* and of all by-catch species must be reported;
(iii)The numbers of seabirds and marine mammals of each species caught and released or killed must be reported;
(iv)The scientific observer(s) aboard each vessel shall collect data on the length composition from representative samples of *Champsocephalus gunnari* and by-catch species:
(a)Length measurements shall be to the nearest centimetre below;
(b)Representative samples of length composition shall be taken from each fine-scale grid rectangle (0.5° latitude by 1° longitude) fished in each calendar month;
(v)The above data shall be submitted to the CCAMLR Secretariat not later than one month after the vessel returns to port. Conservation Measure 51-01
(2007)Precautionary Catch Limitations on Euphausia Superba in Statistical Subareas 48.1, 48.2, 48.3, and 48.4 (Species: Krill; Area: 48.1. 48.2, 48.3, 48.4; Season: All; Gear: All) The Commission, *Noting* that it has agreed (CCAMLR-XIX, paragraph 10.11) that the krill catches in Statistical Subareas 48.1, 48.2, 48.3 and 48.4 shall not exceed a set level, defined herein as a trigger level, until a procedure for division of the overall catch limit into smaller management units has been established, and that the Scientific Committee has been directed to provide advice on such a subdivision, Recognizing that the Scientific Committee agreed a trigger level of 620,000 tonnes, adopts the following measure in accordance with Article IX of its Convention: Catch limit 1. The total combined catch of *Euphausia superba* in Statistical Subareas 48.1, 48.2, 48.3 and 48.4 shall be limited to 3.47 million tonnes in any fishing season. Trigger level 2. Until the Commission has defined an allocation of this total catch limit between smaller management units 1 , based on the advice from the Scientific Committee, the total combined catch in Statistical Subareas 48.1, 48.2, 48.3 and 48.4 shall be further limited to 620 000 tonnes in any fishing season. 3. This measure shall be kept under review by the Commission, taking into account the advice of the Scientific Committee. Season 4. A fishing season begins on 1 December and finishes on 30 November of the following year. Data 5. For the purpose of implementing this conservation measure, the data requirements set out in Conservation Measure 23-06 shall apply. Environmental protection 6. Conservation Measure 26-01 applies. 1 Defined in CCAMLR-XXI, paragraph 4.5. Conservation Measure 51-03
(2007)Precautionary catch limitation on Euphausia superba in Statistical Division 58.4.2 (Species: Krill; Area: 58.4.2; Season: All; Gear: Trawl) Catch limit 1. The total catch of *Euphausia superba* in Statistical Division 58.4.2 shall be limited to 2.645 million tonnes in any fishing season. 2. The total catch limit shall be further subdivided into two subdivisions within Statistical Division 58.4.2 as follows: West of 55° E, 1.448 million tonnes; and east of 55° E, 1.080 million tonnes. Trigger level 1 3. Until the Commission has defined an allocation of this total catch limit between smaller management units, as the Scientific Committee may advise, the total catch in Division 58.4.2 shall be limited to 260 000 tonnes west of 55° E and 192 000 tonnes east of 55° E in any fishing season. 4. This measure shall be kept under review by the Commission, taking into account the advice of the Scientific Committee. Season 5. A fishing season begins on 1 December and finishes on 30 November of the following year. Observers 6. Each vessel participating in the fishery shall have at least one scientific observer in accordance with the CCAMLR Scheme of International Scientific Observation or a domestic scientific observer fulfilling the requests in the scheme, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. 2 Data 7. For the purposes of implementing this conservation measure, the data requirements set out in Conservation Measure 23-06 shall apply. Environmental protection 8. Conservation Measure 26-01 applies. 1 A trigger level is a set level that the catch shall not exceed until a procedure for the division of the overall catch limit into smaller management units, upon which the Scientific Committee has been directed to provide advice, has been established. 2 Bearing in mind the limited ecological information from research and fisheries observers in Statistical Division 58.4.2 compared to Area 48, the Commission recognised the need to collect scientific data from the fishery. This paragraph applies only to the krill fishery in Statistical Division 58.4.2 and shall be revised depending on the advice of the Scientific Committee on a systematic scheme for scientific observation in the krill fishery or reviewed within three years, whichever comes earlier. Conservation Measure 52-01
(2007)Limits on the Fishery for Crab in Statistical Subarea 48.3 in the 2007/08 Season (Species: Crab; Area: 48.3; Season: 2007/08; Gear: Pot) The Commission hereby adopts the following conservation measure in accordance with Conservation Measure 31-01: Access 1. The fishery for crab in Statistical Subarea 48.3 shall be conducted by vessels using pots only. The crab fishery is defined as any commercial harvest activity in which the target species is any member of the crab group (Order Decapoda, Suborder Reptantia). 2. The crab fishery shall be limited to one vessel per Member. 3. Each Member intending to participate in the crab fishery shall notify the CCAMLR Secretariat at least three months in advance of starting fishing of the name, type, size, registration number, radio call sign, and research and fishing operations plan of the vessel that the Member has authorised to participate in the crab fishery. Catch limit 4. The total catch of crab in Statistical Subarea 48.3 in the 2007/08 season shall not exceed a precautionary catch limit of 1,600 tonnes. 5. The crab fishery shall be limited to sexually mature male crabs—all female and undersized male crabs caught shall be released unharmed. In the case of *Paralomis spinosissima* and *Paralomis formosa,* males with a minimum carapace width of 94 and 90 mm respectively, may be retained in the catch. Season 6. For the purpose of the pot fishery for crab in Statistical Subarea 48.3, the 2007/08 season is defined as the period from 1 December 2007 to 30 November 2008, or until the catch limit is reached, whichever is sooner. By-catch 7. The by-catch of *Dissostichus eleginoides* shall be counted against the catch limit in the fishery for *Dissostichus eleginoides* in Statistical Subarea 48.3. Observers 8. Each vessel participating in this fishery shall have at least one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. Scientific observers shall be afforded unrestricted access to the catch for statistical random sampling prior to, as well as after, sorting by the crew. Data: Catch/effort 9. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Ten-day Catch and Effort Reporting System set out in Conservation Measure 23-02;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 10. For the purpose of Conservation Measures 23-02 and 23-04 the target species is crab and by-catch species are defined as any species other than crab. Data: Biological 11. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Research 12. Each vessel participating in this exploratory fishery shall conduct fishery-based research in accordance with the data requirements described in Annex 52-01/A and the experimental harvest regime described in Conservation Measure 52-02. Data collected for the period up to 31 August 2008 shall be reported to CCAMLR by 30 September 2008 so that the data will be available to the meeting of the Working Group on Fish Stock Assessment (WG-FSA) in 2008. Such data collected after 31 August 2008 shall be reported to CCAMLR not later than three months after the closure of the fishery. Environmental protection 13. Conservation Measure 26-01 applies. Annex 52-01/A Data Requirements on the Crab Fishery in Statistical Subarea 48.3 *Catch and Effort Data:* Cruise Descriptions Cruise code, vessel code, permit number, year. Pot Descriptions Diagrams and other information, including pot shape, dimensions, mesh size, funnel position, aperture and orientation, number of chambers, presence of an escape port. Effort Descriptions Date, time, latitude and longitude of the start of the set, compass bearing of the set, total number of pots set, spacing of pots on the line, number of pots lost, depth, soak time, bait type. Catch Descriptions Retained catch in numbers and weight, by-catch of all species (see Table 1), incremental record number for linking with sample information. Table 1.—Data Requirements for By-Catch Species in the Crab Fishery in Statistical Subarea 48.3 Species Data requirements *Dissostichus eleginoides* Numbers and estimated total weight. *Notothenia rossii* Numbers and estimated total weight. Other species Estimated total weight. Biological Data: For these data, crabs are to be sampled from the line hauled just prior to noon, by collecting the entire contents of a number of pots spaced at intervals along the line so that between 35 and 50 specimens are represented in the subsample. Cruise Descriptions Cruise code, vessel code, permit number. Sample Descriptions Date, position at start of the set, compass bearing of the set, line number. Data Species, sex, length of at least 35 individuals, presence/absence of rhizocephalan parasites, record of the destination of the crab (kept, discarded, destroyed), record of the pot number from which the crab comes. Conservation Measure 52-02
(2007)Experimental Harvest Regime for the Crab Fishery in Statistical Subarea 48.3 in the 2007/08 Season (Species: Crab; Area: 48.3; Season: 2007/08; Gear: Pot) The following measures apply to all crab fishing within Statistical Subarea 48.3 in the 2007/08 fishing season. Every vessel participating in the crab fishery in Statistical Subarea 48.3 shall conduct fishing operations in accordance with an experimental harvest regime as outlined below: 1. Vessels shall conduct the experimental harvest regime in the 2007/08 season at the start of their first season of participation in the crab fishery and the following conditions shall apply:
(i)Every vessel when undertaking an experimental harvesting regime shall expend its first 200,000 pot hours of effort within a total area delineated by 12 blocks of 0.5° latitude by 1.0° longitude. For the purposes of this conservation measure, these blocks shall be numbered A to L. In Annex 52-02/A, the blocks are illustrated (Figure 1), and the geographic position is denoted by the coordinates of the northeast corner of the block. For each string, pot hours shall be calculated by taking the total number of pots on the string and multiplying that number by the soak time (in hours) for that string. Soak time shall be defined for each string as the time between start of setting and start of hauling;
(ii)Vessels shall not fish outside the area delineated by the 0.5° latitude by 1.0° longitude blocks prior to completing the experimental harvesting regime;
(iii)Vessels shall not expend more than 30,000 pot hours in any single block of 0.5° latitude by 1.0° longitude;
(iv)If a vessel returns to port before it has expended 200,000 pot hours in the experimental harvesting regime, the remaining pot hours shall be expended before it can be considered that the vessel has completed the experimental harvesting regime;
(v)After completing 200,000 pot hours of experimental fishing, it shall be considered that vessels have completed the experimental harvesting regime and they shall be permitted to commence fishing in a normal fashion. 2. Data collected during the experimental harvest regime up to 30 June 2008 shall be submitted to CCAMLR by 31 August 2008. 3. Normal fishing operations shall be conducted in accordance with the regulations set out in Conservation Measure 52-01. 4. For the purposes of implementing normal fishing operations after completion of the experimental harvest regime, the Ten-day Catch and Effort Reporting System set out in Conservation Measure 23-02 shall apply. 5. Vessels that complete the experimental harvest regime shall not be required to conduct experimental fishing in future seasons. However, these vessels shall abide by the guidelines set forth in Conservation Measure 52-01. 6. Fishing vessels shall participate in the experimental harvest regime independently (i.e. vessels may not cooperate to complete phases of the experiment). 7. Crabs taken by any vessel for research purposes will be considered as part of any catch limits in force for each species taken, and shall be reported to CCAMLR as part of the annual STATLANT returns. 8. All vessels participating in the experimental harvest regime shall carry at least one scientific observer on board during all fishing activities. BILLING CODE 3510-22-P EN21DE07.009 BILLING CODE 3510-22-C Conservation Measure 61-01
(2007)Limits on the Exploratory Fishery for Martialia Hyadesi in Statistical Subarea 48.3 in the 2007/08 Season (Species: Squid; Area: 48.3; Season: 2007/08; Gear: Jig) The Commission hereby adopts the following conservation measure in accordance with Conservation Measures 21-02 and 31-01: Access 1. Fishing for *Martialia hyadesi* in Statistical Subarea 48.3 shall be limited to the exploratory jig fishery by notifying countries. The fishery shall be conducted by vessels using jigs only. Catch limit 2. The total catch of *Martialia hyadesi* in Statistical Subarea 48.3 in the 2007/08 season shall not exceed a precautionary catch limit of 2 500 tonnes. Season 3. For the purpose of the exploratory jig fishery for *Martialia hyadesi* in Statistical Subarea 48.3, the 2007/08 season is defined as the period from 1 December 2007 to 30 November 2008, or until the catch limit is reached, whichever is sooner. Observers 4. Each vessel participating in this fishery shall have at least one scientific observer appointed in accordance with the CCAMLR Scheme of International Scientific Observation, and where possible one additional scientific observer, on board throughout all fishing activities within the fishing period. Data: Catch/effort 5. For the purpose of implementing this conservation measure in the 2007/08 season, the following shall apply:
(i)The Ten-day Catch and Effort Reporting System set out in Conservation Measure 23-02;
(ii)The Monthly Fine-scale Catch and Effort Reporting System set out in Conservation Measure 23-04. Fine-scale data shall be submitted on a haul-by-haul basis. 6. For the purpose of Conservation Measures 23-02 and 23-04, the target species is *Martialia hyadesi* and by-catch species are defined as any species other than *Martialia hyadesi.* Data: Biological 7. Fine-scale biological data, as required under Conservation Measure 23-05, shall be collected and recorded. Such data shall be reported in accordance with the CCAMLR Scheme of International Scientific Observation. Research 8. Each vessel participating in this exploratory fishery shall collect data in accordance with the Data Collection Plan described in Annex 61-01/A. Data collected pursuant to the plan for the period up to 31 August 2008 shall be reported to CCAMLR by 30 September 2008. Environmental protection 9. Conservation Measure 26-01 applies. Annex 61-01/A Data Collection Plan for Exploratory Squid (Martialia Hyadesi) Fisheries in Statistical Subarea 48.3 1. All vessels will comply with conditions set by CCAMLR. These include data required to complete the data form (Form TAC) for the Ten-day Catch and Effort Reporting System, as specified by Conservation Measure 23-02; and data required to complete the CCAMLR standard fine-scale catch and effort data form for a squid jig fishery (Form C3). This includes numbers of seabirds and marine mammals of each species caught and released or killed. 2. All data required by the CCAMLR *Scientific Observers Manual* for squid fisheries will be collected. These include:
(i)Vessel and observer program details (Form S1);
(ii)Catch information (Form S2);
(iii)Biological data (Form S3). Resolution 26/XXVI International Polar Year/Census of Antarctic Marine Life The Commission, *Recognising* that the International Polar Year is a large scientific program focused on the Arctic and Antarctic from March 2007 to March 2009, *Acknowledging* that the International Polar Year involves over 60 States and 200 scientific projects, including the Census of Antarctic Marine Life (CAML), *Noting* that CAML will investigate the distribution and abundance of Antarctica's vast marine biodiversity to develop a benchmark for the benefit of humankind, *Recalling* the Edinburgh Antarctic Declaration on the International Polar Year from the Antarctic Treaty Consultative Meeting XXIX that gives political support to the International Polar Year, *Further recognizing* that the Commission, at its Twenty-fifth meeting, urged all Members to contribute to CCAMLR International Polar Year projects, *Noting* Article IX of the Convention setting out the Commission's functions, including to ‘facilitate research into and comprehensive studies of Antarctic marine living resources and of the Antarctic marine ecosystem', 1. Welcomes the notifications received from Contracting Parties of proposed International Polar Year/Census of Antarctic Marine Life research activities to be undertaken in the CCAMLR Convention Area. 2. Expresses its appreciation to those Contracting Parties who have committed to participate in International Polar Year activities in the CCAMLR Convention Area and to further extend knowledge of the marine living resources in the Antarctic marine ecosystem. 3. Encourages all Contracting Parties to support and where possible contribute to the International Polar Year, including through the Census of Antarctic Marine Life. Dated: December 10, 2007. Alan Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. Dated: December 11, 2007. Margaret F. Hayes, Director, Office of Ocean Affairs, Department of State. [FR Doc. E7-24312 Filed 12-20-07; 8:45 am] BILLING CODE 3510-22-P 72 245 Friday, December 21, 2007 Rules and Regulations Part III Department of Agriculture Farm Service Agency 7 CFR Part 760 Emergency Agricultural Assistance, 2007; Crop Disaster and Livestock Indemnity Programs; Final Rule 2005-2007 Livestock Compensation and Catfish Grant Programs; Final Rule DEPARTMENT OF AGRICULTURE Farm Service Agency 7 CFR Part 760 RIN 0560-AH76 Emergency Agricultural Assistance, 2007; Crop Disaster and Livestock Indemnity Programs AGENCY: Farm Service Agency, USDA. ACTION: Final rule. SUMMARY: This rule establishes the Farm Service Agency
(FSA)regulations for the 2007 Emergency Agricultural Assistance. The rule implements legislation that provides funds for agricultural disaster aid for eligible producers, specifically a Crop Disaster Program
(CDP)and a 2005-2007 Livestock Indemnity Program (LIP). For CDP, the program applies only to 2005, 2006, and 2007 crop producers who chose to have a Federal Crop Insurance plan of insurance or Noninsured Crop Disaster Assistance Program coverage for the year of loss and suffered damage due to a natural disaster. Eligible crops for 2007 must have been planted prior to February 28, 2007. For LIP, the program applies only to livestock producers in counties designated as a major disaster or emergency area by the President or those declared a natural disaster area by the Secretary of Agriculture. Counties designated disasters by the President may be eligible even though agricultural loss was not covered by the designation if there has been an FSA Administrator's Physical Loss Notice covering such losses. The natural disaster declarations by the Secretary or designations by President must have been issued between January 1, 2005, and February 28, 2007; that is after January 1, 2005 and before February 28, 2007. Counties contiguous to such counties will also be eligible. DATES: This rule is effective December 19, 2007. FOR FURTHER INFORMATION CONTACT: Salomon Ramirez, Director, Production, Emergencies, and Compliance Division; Farm Service Agency; United States Department of Agriculture, STOP 0517, 1400 Independence Avenue, SW., Washington, DC 20250-0517; telephone
(202)720-7641; e-mail *salomon.ramirez@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: Background This final rule implements the agricultural assistance provisions of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28) (the 2007 Emergency Supplemental), enacted May 25, 2007. The 2007 Emergency Supplemental authorizes the Secretary of Agriculture (Secretary) to assist producers of livestock and agricultural commodities through programs administered by FSA. All counties, owners, contract growers, lessees, livestock, crops, and losses, must meet the eligibility criteria provided in this rule. False certifications carry severe ramifications. FSA will validate applications with random spot-checks. A payment limitation of $80,000 per program per person is applicable to payments made under the 2007 Emergency Supplemental. The amount of any payment for which a participant may be eligible under any of these programs may be reduced by any amount received by the participant for the same or any similar loss. Other restrictions apply including, but not limited to, those pertaining to highly erodible land and wetland conservation provisions. Livestock and crop losses that are not weather-related are not covered. The average adjusted gross income
(AGI)limitation as administered under 7 CFR part 1400, subpart G, applies. AGI eligibility is based on the average of the adjusted gross incomes for the three tax years immediately preceding the tax year for which disaster assistance is being requested, with the exclusion of any year(s) the individual or entity did not have income or had an AGI of zero. Crop Disaster Program Section 9001 of the 2007 Emergency Supplemental authorizes the Secretary to provide assistance to crop producers for qualifying crop quantity or crop quality losses due to damaging weather and related conditions for one, but not more than one, of the 2005, 2006, or 2007 crop years. The 2007 Emergency Supplemental requires that assistance for quantity losses to be made available in the same manner as provided under section 815 of the Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (Pub. L. 106-387) (the 2001 Appropriations Act), except that the payment rate will be 42 percent of the established price, instead of 65 percent. Like under section 815 of the 2001 Appropriations Act, only approved yields based on production evidence submitted prior to the enactment of the 2007 Emergency Supplemental will be used for the purposes of the 2005, 2006, and 2007 CDP. This is also applicable to those plans of insurance or NAP that did not or do not have approved yields calculated based on actual production history. FSA does not have the resources or the knowledge to calculate those approved yields now. Additionally, historically, FSA has not computed approved yields following enactment of legislation authorizing similar ad hoc disaster assistance. There are a plethora of reasons for not computing such yields now, not the least of which is burdening participants and FSA offices with tasks that will undoubtedly slow the dispersal of funds that Congress wanted issued timely. There are also serious integrity issues related to allowing, as a general matter, participants an opportunity to now in conjunction with a loss claim application under this ad hoc legislation, the opportunity to now alter or change their expected level of production in the year of alleged loss. The same quantity loss thresholds used under section 815 of the 2001 Appropriations Act are applicable. The 2007 Emergency Supplemental provides that total assistance provided to a participant for a crop year under the Crop Disaster Program (CDP), together with any amount provided to the same participant for the same crop made pursuant to any crop insurance program or the Noninsured Crop Disaster Assistance Program (NAP), plus the value of the crop that was not lost, may not exceed 95 percent of the value of the crop in the absence of a loss, as estimated by FSA. By statute, a participant seeking financial assistance under this rule will not be eligible for payments if the participant did not obtain a Federal Crop Insurance Plan or NAP coverage for the crop incurring loss for the year in which assistance is requested. Circumstances why a participant either chose to not have such insurance or NAP coverage are irrelevant to determination of CDP eligibility. Those circumstances, accordingly, will not be considered under any of the relief provisions outlined in 7 CFR part 718. The CDP objectives are as follows: • Use crop insurance principles to the extent practicable. • Establish an equitable distribution of payments based on the losses of each producer. • Treat producers with similar losses similarly. • Distribute payments according to the geographic location of the losses. • Ensure that all producers are notified of program benefits. Eligible crops include insured crops and NAP covered crops. Insured crops are crops insured by a Federally-subsidized crop insurance policy. NAP covered crops are crops for which crop insurance is not available, but are covered by NAP. Under the previous CDP, crop insurance and NAP coverage were not required for eligibility. For quality losses, producers are eligible for assistance for quality losses of at least 25-percent. All crops are eligible for quality losses except for value loss crops 1 and some specialty crops. 2 The total affected production for a quality loss payment cannot exceed the expected production. Payments will be made only on 65 percent of the quantity of production. 1 Value loss crops ineligible for quality losses include aquaculture, floriculture, mushrooms, ginseng root, ornamental nursery, and Christmas trees. 2 Specialty crops ineligible for quality losses include honey, maple sap, and turf grass sod. Payment rates will be based on five broad loss levels, determined as follows: Level For estimated quality loss ranges (percentage) The following percentages of established prices 1 are used: I 25.0 and 34.9 30 II 35.0 and 54.9 45 III 55.0 and 74.9 65 IV 75.0 and 94.9 85 V 95.0 and 100.0 95 1 Established prices are marketing contract prices, catastrophic risk protection, Actual Production History prices, or 5-year average prices. For marketing contracts and quality loss assistance, under the CDP, production of a commodity sold pursuant to a marketing contract is eligible for quality loss assistance based on one or more prices specified in the contracts. When there are multiple marketing contract prices, a weighted average will be calculated to determine a single blended price. Production of a commodity not sold through marketing contracts is eligible for quality loss assistance based on the average local market discounts for reduced quality, as determined by the appropriate State committee of FSA. For insurable crops, only producers who purchased crop insurance for the affected crop during the applicable disaster year are eligible to receive crop disaster payments. For NAP covered crops, producers must have participated in NAP for the crop for which they are seeking benefits in the disaster year. Livestock Indemnity Program Section 9002(b) of the 2007 Emergency Supplemental appropriates to the Secretary such sums as necessary to remain available until expended to provide assistance to livestock producers for certain livestock deaths directly resulting from natural disasters that occurred between January 1, 2005, and February 28, 2007, that is after January 1, 2005, but before February 28, 2007, including losses due to blizzards that started in 2006 and continued into January 2007. To be eligible for assistance under the 2005-2007 Livestock Indemnity Program (LIP), the participant must have suffered livestock loss due to an eligible disaster event occurring after January 1, 2005, but before February 28, 2007, and the livestock must have been physically located in a county or contiguous county having a natural disaster designated by the President or declared by the Secretary after January 1, 2005, but before February 28, 2007. For timely Presidential declarations that do not cover agricultural physical loss, the subject counties may still be eligible if the county was the subject of an approved Administrator's Physical Loss Notice
(APLN)when the APLN applies to a natural disaster designated by the President. Livestock producers incurring livestock losses in more than one of the 2005, 2006, and 2007 calendar years may only select one year in which to receive assistance. The 2005-2007 LIP is administered by FSA and funds have been appropriated to FSA for such purpose. Therefore, it is implemented through regulations in 7 CFR part 760. We are establishing a new subpart J for the 2005-2007 LIP regulations. The 2005-2007 LIP will provide assistance to eligible producers (owners and contract growers) of eligible livestock located in a total of 2,944 counties. These 2,944 counties refer to the total number of declared counties, regardless of the number of times for which they received disaster declarations after January 1, 2005, but before February 28, 2007. The regulations will specify what makes a county eligible. The list of eligible counties is on the FSA Web site. The natural disasters covered by the 2005-2007 LIP include various hurricanes, extreme heat, wildfires, and blizzards that occurred after January 1, 2005, but before February 28, 2007. Payments under the 2005-2007 LIP are based on the type, kind, and weight of eligible livestock. The amount of payment that a person may receive under the 2005-2007 LIP cannot exceed $80,000. Eligible livestock includes certain beef cattle, dairy cattle, buffalo, beefalo, equine, sheep, goats, deer, swine, poultry, reindeer, catfish, and crawfish that died as a direct result of an eligible disaster and on the day they perished were all of the following: • Owned by an eligible owner or in the possession of an eligible contract grower; • Maintained for commercial use as part of a farming operation of the participant on the day they died; and • Died in an eligible county as a direct result of an eligible disaster event during the disaster period. Participants must provide verifiable documentation of livestock deaths claimed. Payments will be made to contract growers to the extent of their contractual risk, as determined by FSA. Any compensation received by the contract grower from the contractor for loss of income for the dead livestock will be deducted from the contract grower's payment. An eligible producer who received payments for disaster-related livestock losses from the 2005 hurricanes under earlier LIPs may only receive payments under the 2005-2007 LIP under the following two circumstances:
(1)A participant who lost livestock to subsequent disasters in 2006 or 2007, is eligible for payments resulting from the subsequent disasters, but must elect to declare losses and receive payments for only one of those two years.
(2)A participant with eligible livestock who received payments for disaster-related livestock losses from the 2005 hurricanes under an earlier LIP may also elect to receive payments under the 2005-2007 LIP, however, the payment will be reduced by the amount received for the same disaster under an earlier LIP. This second situation is not expected to produce any payments because payment rates under earlier programs were higher than payment rates under the 2005-2007 LIP. Notice and Comment These regulations are exempt from the notice and comment requirements of the Administrative Procedures Act (5 U.S.C. 553) and the Statement of Policy of the Secretary effective July 24, 1971 (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking, as specified in section 9005 of the 2007 Emergency Supplemental, which requires that the regulations be promulgated and administered without regard to those notice and comment provisions. Executive Order 12866 This rule has been determined to be economically significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget. A Cost-Benefit Analysis
(CBA)was completed and is available from the contact person listed above. The summary of the anticipated economic impacts for CDP and LIP are described below. Crops Total crop disaster payments are expected to range from $1.6 billion to $2.0 billion. The low end of the range is estimated at $1.6 billion reflecting the probability that the more restrictive eligibility provisions and the reduction in the quality loss threshold may lower payments. The high end of the range is estimated at $2.0 billion reflecting the probability that the new marketing contract provisions may increase payments. The 2005 and 2006 payments are expected to be mainly based on the 2006 crop year because crop losses were more severe in 2006. A large portion of 2007 payments are expected to be paid to winter wheat and specialty crop producers affected by freezes. CDP payments for 2007 winter wheat are estimated at $190 million. CDP payments for 2007 oranges are estimated at $7 million. CDP payments for 2007 peaches are estimated at $6 million. CDP payments for 2007 lemons are estimated at $2 million. The past crop disaster programs (2001/2002 and 2003/2004) had very similar crop disaster payouts, with payments of $2.5 billion for each program. Qualitative adjustments to the estimates were necessary because of program changes. Program changes that are expected to cause the estimate to be lower include: • Insurable crops that are uninsured are ineligible for crop disaster payments; • Non-insurable crops not covered, but eligible, through NAP are ineligible for crop disaster payments; and • Producers that will be compensated for losses of at least 25 percent quality loss. New provisions that allow production of a commodity sold through marketing contracts to be eligible for quality loss assistance based on the prices specified in the contracts are expected to increase payments. Livestock The value of expected claims under the 2005-2007 LIP is $14.4 million. To the extent program payments are ultimately spent on forage or grain or affect the total supply of available livestock, the impacts of the 2005-2007 LIP on any sector of the economy, including livestock feed prices, livestock prices, and consumer prices, are not expected to be measurable. However, for those participants who have suffered losses from disasters between January 1, 2005, and February 28, 2007, and qualify for payments under the 2005-2007 LIP, their farm income losses will be somewhat offset or reduced by these payments, and they and their local communities may benefit accordingly. Most claims for losses are expected to result from conditions of extreme heat in California and blizzards that affected Colorado, western Kansas, two counties in northern New Mexico, and one county in Oklahoma. There are expected to be some producers in the Gulf Coast states who may not have applied for payments under an earlier LIP, or who had losses from other disasters for which the county in which they produced the livestock was declared a primary disaster county or an adjoining county. For example, several hundred cattle are reported to have died in Texas as a result of wildfires. Such claims are not expected to be significant, however. Other claims may also exist among other counties in the United States, but these are also expected to be quite small and no information exists upon which to make estimates. The impact of the 2005-2007 LIP is not expected to be significant in terms of aggregate change in social welfare. FSA initially estimates expected payments totaling $14.4 million for the 2005-2007 LIP, the sum of approximately $13.4 million for land-based losses and $1 million for payments to catfish and crawfish producers. The actual number of eligible owners, contract growers, and livestock and program costs will become more certain toward the end of signup for the program. Actual claims are expected to be less than the estimated $14.4 million because some persons may exceed the $80,000 payment limit, or their adjusted gross incomes may exceed $2.5 million. The $14.4 million is $3.3 million less than the $17.7 million paid out under the 2005 LIP. In comparison, the 2005 LIP used a 30 percent payout rate, compared to the 26 percent rate used in the 2005-2007 LIP, and paid for hurricane-related losses located in States affected by those hurricanes. If the 2005-2007 LIP payout rate was also 30 percent, the payout amount would be $16.6 million (0.3*($14.4/.26) = $16.6), or over $1 million less than the 2005 payout amount. The above magnitude of difference appears reasonable in spite of the fact that the 2005-2007 LIP is national in scope, and covers all disasters between January 1, 2005, and February 28, 2007, including catfish and crawfish, while the 2005 LIP only covered 9 states in the Southeast and Gulf Coast region. First, nearly all payments under the 2005-2007 LIP are expected to cover two specific disasters: losses of an estimated 16,000 dairy cattle from extreme heat in California and an estimated 20,000 beef cattle lost from blizzards in the winter of 2006-2007 that affected Colorado, Kansas, and New Mexico. Second, participants who received payments under the 2005 LIP are not expected to apply for payments under the 2005-2007 LIP because their payment rates were higher under the earlier program and they cannot receive payments under both programs without returning monies received under the 2005 LIP. Regulatory Flexibility Act This rule is not subject to the Regulatory Flexibility Act since the Farm Service Agency is not required to publish a notice of proposed rulemaking for this rule. Environmental Review The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). The following final rule was determined to be Categorically Excluded because it is considered a ministerial action solely involving the transfer of funds to offset disaster related losses with no site-specific or ground-disturbing actions occurring as a requirement or an immediate result of program implementation. Therefore, no environmental assessment or environmental impact statement will be completed for this final rule. Executive Order 12372 This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the **Federal Register** on June 24, 1983 (48 FR 29115). Executive Order 12612 This rule does not have Federalism implications that warrant the preparation of a Federalism Assessment. This rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various levels of government. Executive Order 12988 This rule has been reviewed under Executive Order 12988. This final rule is not retroactive and it does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought regarding the provisions of this rule the administrative appeal provisions of 7 CFR parts 11 and 780 must be exhausted. Unfunded Mandates This rule contains no Federal mandates under the regulatory provisions of Title II of the UMRA for State, local, and tribal government or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. Paperwork Reduction Act These regulations are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in section 9005(b)(3) of the 2007 Emergency Supplemental, which provides that these regulations, which are necessary to implement title IX of the 2007 Emergency Supplemental, be promulgated and administered without regard to the Paperwork Reduction Act. E-Government Act Compliance CCC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Small Business Regulatory Enforcement Fairness Act of 1996 This rule has been determined to be Major under the Small Business Regulatory Enforcement Fairness Act of 1996, (Pub. L. 104-121) (SBREFA). SBREFA normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. Section 808 of SBREFA allows an agency to make a major regulation effective immediately if the agency finds there is good cause to do so. Consistent with the provisions of 9005(c) of the 2007 Emergency Supplemental, FSA finds that it would be contrary to the public interest to delay implementation of this rule because it would significantly delay assistance to the many people affected by the disasters addressed by this rule. Therefore, this rule is effective immediately. List of Subjects in 7 CFR Part 760 Dairy products, Indemnity payments, Pesticides and pests, Reporting and recordkeeping requirements. For the reasons explained above, 7 CFR part 760 is amended as follows: PART 760—INDEMNITY PAYMENT PROGRAMS 1. Revise the authority citation for 7 CFR part 760 to read as follows: Authority: 7 U.S.C. 612c; Pub. L. 106-387, 114 Stat. 1549; Pub. L. 107-76, 115 Stat. 704; Title III, Pub. L. 109-234, 120 Stat. 474; 16 U.S.C. 3801, note; and Title IX, Pub. L. 110-28. 2. Amend 7 CFR part 760 by adding new subparts I and J to read as follows: Subpart I—2005-2007 Crop Disaster Program Sec. 760.800 Applicability. 760.801 Administration. 760.802 Definitions. 760.803 Eligibility. 760.804 Time and method of application. 760.805 Limitations on payments and other benefits. 760.806 Crop eligibility requirements. 760.807 Miscellaneous provisions. 760.808 General provisions. 760.809 Eligible damaging conditions. 760.810 Qualifying 2005, 2006, or 2007 quantity crop losses. 760.811 Rates and yields; calculating payments. 760.812 Production losses; participant responsibility. 760.813 Determination of production. 760.814 Calculation of acreage for crop losses other than prevented planted. 760.815 Calculation of prevented planted acreage. 760.816 Value loss crops. 760.817 Quality losses for 2005, 2006, and 2007 crops. 760.818 Marketing contracts. 760.819 Misrepresentation, scheme, or device. 760.820 Offsets, assignments, and debt settlement. 760.821 Compliance with highly erodible land and wetland conservation. Subpart J—2005-2007 Livestock Indemnity Program 760.900 Administration. 760.901 Applicability. 760.902 Eligible counties and disaster periods. 760.903 Definitions. 760.904 Limitations on payments and other benefits. 760.905 Eligible owners and contract growers. 760.906 Eligible livestock. 760.907 Application process. 760.908 Deceased individuals or dissolved entities. 760.909 Payment calculation. 760.910 Appeals. 760.911 Offsets, assignments, and debt settlement. 760.912 Records and inspections. 760.913 Refunds; joint and several liability. Subpart I—2005-2007 Crop Disaster Program § 760.800 Applicability. This part sets forth the terms and conditions for the 2005-2007 Crop Disaster Program (2005-2007 CDP). CDP makes emergency financial assistance available to producers who have incurred crop losses in quantity or quality for eligible 2005, 2006, or 2007 crop years due to disasters as determined by the Secretary under provisions of Title IX of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28). However, to be eligible for assistance, the crop subject to the loss must have been planted or existed before February 28, 2007, or, in the case of prevented planting, would have been planted before February 28, 2007. § 760.801 Administration.
(a)The program will be administered under the general supervision of the Deputy Administrator for Farm Programs and will be carried out in the field by FSA State and county committees.
(b)State and county committees and representatives do not have the authority to modify or waive any of the provisions of this part.
(c)The State committee will take any action required by this part that has not been taken by a county committee. The State committee will also:
(1)Correct, or require a county committee to correct, any action taken by that FSA county committee that is not in accordance with this part; and
(2)Require a county committee to withhold taking or reverse any action that is not in accordance with this part.
(d)No provision or delegation to a State or county committee will prevent the Deputy Administrator for Farm Programs from determining any question arising under the program or from reversing or modifying any determination made by a State or county committee.
(e)The Deputy Administrator for Farm Programs may authorize State and county committees to waive or modify non-statutory deadlines or other program requirements in cases where lateness or failure to meet such does not adversely affect the operation of the program. § 760.802 Definitions. The following definitions apply to this part. The definitions in parts 718 and 1400 of this title also apply, except where they conflict with the definitions in this section. *Actual production* means the total quantity of the crop appraised, harvested, or assigned, as determined by the FSA State or county committee in accordance with instructions issued by the Deputy Administrator for Farm Programs. *Administrative fee* means an amount the producer must pay for Noninsured Crop Disaster Assistance Program
(NAP)enrollment for non-insurable crops. *Affected production* means, with respect to quality losses, the harvested production of an eligible crop that has a documented quality reduction of 25 percent or more on the verifiable production record. *Appraised production* means production determined by FSA, or a company reinsured by the Federal Crop Insurance Corporation (FCIC), that was unharvested but was determined to reflect the crop's yield potential at the time of appraisal. *Approved yield* means the amount of production per acre, computed in accordance with FCIC's Actual Production History
(APH)Program at part 400, subpart G of this title or, for crops not included under part 400, subpart G of this title, the yield used to determine the guarantee. For crops covered under NAP, the approved yield is established according to part 1437 of this title. Only the approved yields based on production evidence submitted to FSA prior to May 25, 2007 will be used for purposes of the 2005-2007 CDP. *Aquaculture* means a value loss crop for the reproduction and rearing of aquatic species in controlled or selected environments including, but not limited to, ocean ranching, except private ocean ranching of Pacific salmon for profit in those States where such ranching is prohibited by law. *Aquaculture facility* means any land or structure including, but not limited to, a laboratory, concrete pond, hatchery, rearing pond, raceway, pen, incubator, or other equipment used in aquaculture. *Aquaculture species* means any aquaculture species as defined in part 1437 of this title. *Average market price* means the price or dollar equivalent on an appropriate basis for an eligible crop established by FSA, or CCC, or RMA, as applicable, for determining payment amounts. Such price will be based on historical data of the harvest basis excluding transportation, storage, processing, packing, marketing, or other post-harvesting expenses. Average market prices are generally applicable to all similarly situated participants and are not established in response to individual participants. Accordingly, the established average market prices are not appealable under parts 11 or 780 of this title. *Catastrophic risk protection* means the minimum level of coverage offered by FCIC. *CCC* means the Commodity Credit Corporation. *Controlled environment* means, with respect to those crops for which a controlled environment is expected to be provided, including but not limited to ornamental nursery, aquaculture (including ornamental fish), and floriculture, an environment in which everything that can practicably be controlled with structures, facilities, growing media (including, but not limited to, water, soil, or nutrients) by the producer, is in fact controlled by the producer. *Crop insurance* means an insurance policy reinsured by FCIC under the provisions of the Federal Crop Insurance Act, as amended. *Crop year* means:
(1)For insured crops, the crop year as defined according to the applicable crop insurance policy;
(2)For NAP covered crops, as provided in part 1437 of this title. *Damaging weather* means drought, excessive moisture, hail, freeze, tornado, hurricane, typhoon, excessive wind, excessive heat, weather-related saltwater intrusion, weather-related irrigation water rationing, and earthquake and volcanic eruptions, or any combination. It also includes a related condition that occurs as a result of the damaging weather and exacerbates the condition of the crop, such as crop disease, and insect infestation. *Deputy Administrator* means the Deputy Administrator for Farm Programs, Farm Service Agency, U.S. Department of Agriculture or designee. *Eligible crop* means a crop insured by FCIC as defined in part 400 of this title, or included under NAP as defined under part 1437 of this title for which insurance or NAP coverage was obtained timely for the year which CDP benefits are sought. *End use* means the purpose for which the harvested crop is used, such as grain, hay, or seed. *Expected production* means, for an agricultural unit, the historic yield multiplied by the number of planted or prevented acres of the crop for the unit. *FCIC* means the Federal Crop Insurance Corporation, a wholly owned Government Corporation within USDA. *Final planting date* means the latest date, established by the Risk Management Agency
(RMA)for insured crops, by which the crop must initially be planted in order to be insured for the full production guarantee or amount of insurance per acre. For NAP covered crops, the final planting date is as provided in part 1437 of this title. *Flood prevention* means:
(1)For aquaculture species, placing the aquaculture facility in an area not prone to flood;
(2)In the case of raceways, devices or structures designed for the control of water level; and
(3)With respect to nursery crops, placing containerized stock in a raised area above expected flood level and providing draining facilities, such as drainage ditches or tile, gravel, cinder, or sand base. *Good nursery growing practices* means utilizing flood prevention, growing media, fertilization to obtain expected production results, irrigation, insect and disease control, weed, rodent and wildlife control, and over winterization storage facilities. *Ground water* means aqueous supply existing in an aquifer subsurface that is brought to the surface and made available for irrigation by mechanical means such as by pumps and irrigation wells. *Growing media* means:
(1)For aquaculture species, media that provides nutrients necessary for the production of the aquaculture species and protects the aquaculture species from harmful species or chemicals or
(2)For nursery crops, a well-drained media with a minimum 20 percent air pore space and pH adjustment for the type of plant produced designed to prevent “root rot.” *Harvested* means:
(1)For insured crops, harvested as defined according to the applicable crop insurance policy;
(2)For NAP covered single harvest crops, that a crop has been removed from the field, either by hand or mechanically, or by grazing of livestock;
(3)For NAP covered crops with potential multiple harvests in 1 year or harvested over multiple years, that the producer has, by hand or mechanically, removed at least one mature crop from the field during the crop year;
(4)For mechanically-harvested NAP covered crops, that the crop has been removed from the field and placed in a truck or other conveyance, except hay is considered harvested when in the bale, whether removed from the field or not. Grazed land will not be considered harvested for the purpose of determining an unharvested or prevented planting payment factor. A crop that is intended for mechanical harvest, but subsequently grazed and not mechanically harvested, will have an unharvested factor applied. *Historic yield* means, for a unit, the higher of the county average yield or the participant's approved yield.
(1)An insured participant's yield will be the higher of the county average yield listed or the approved federal crop insurance APH, for the disaster year.
(2)NAP participant's yield will be the higher of the county average or approved NAP APH for the disaster year. *Insurable crop* means an agricultural crop (excluding livestock) for which the producer on a farm is eligible to obtain a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501-1524). *Marketing contract* means a legally binding written contract between a purchaser and grower for the purpose of marketing a crop. *Market value* means:
(1)The price(s) designated in the marketing contract; or
(2)If not designated in a marketing contract, the rate established for quantity payments under § 760.811. *Maximum average loss level* means the maximum average level of crop loss to be attributed to a participant without acceptable production records (verifiable or reliable). Loss levels are expressed in either a percent of loss or yield per acre, and are intended to reflect the amount of production that a participant would have been expected to make if not for the eligible disaster conditions in the area or county, as determined by the county committee in accordance with instructions issued by the Deputy Administrator. *Multi-use crop* means a crop intended for more than one end use during the calendar year such as grass harvested for seed, hay, and grazing. *Multiple cropping* means the planting of two or more different crops on the same acreage for harvest within the same crop year. *Multiple planting* means the planting for harvest of the same crop in more than one planting period in a crop year on different acreage. *NASS* means the National Agricultural Statistics Service. *Net crop insurance indemnity* means the indemnity minus the producer paid premium. *NAP covered* means a crop for which the participants obtained assistance under section 196 of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 7333). *Normal mortality* means the percentage of dead aquaculture species that would normally occur during the crop year. *Person* means person as defined in part 1400 of this title, and all rules with respect to the determination of a person found in that part are applicable to this part. However, the determinations made in this part in accordance with part 1400, subpart B, Person Determinations, of this title will also take into account any affiliation with any entity in which an individual or entity has an interest, regardless of whether or not such entities are considered to be actively engaged in farming. *Planted acreage* means land in which seed, plants, or trees have been placed, appropriate for the crop and planting method, at a correct depth, into a seedbed that has been properly prepared for the planting method and production practice normal to the USDA plant hardiness zone as determined by the county committee. *Prevented planting* means the inability to plant an eligible crop with proper equipment during the planting period as a result of an eligible cause of loss, as determined by FSA. *Production* means quantity of the crop or commodity produced expressed in a specific unit of measure including, but not limited to, bushels or pounds. *Rate* means price per unit of the crop or commodity. *Recording county* means, for a producer with farming interests in only one county, the FSA county office in which the producer's farm is administratively located or, for a producer with farming interests that are administratively located in more than one county, the FSA county office designated by FSA to control the payments received by the producer. *Related condition* means, with respect to a disaster, a condition that causes deterioration of a crop, such as insect infestation, plant disease, or aflatoxin, that is accelerated or exacerbated as a result of damaging weather, as determined in accordance with instructions issued by the Deputy Administrator. *Reliable production records* means evidence provided by the participant that is used to substantiate the amount of production reported when verifiable records are not available, including copies of receipts, ledgers of income, income statements of deposit slips, register tapes, invoices for custom harvesting, and records to verify production costs, contemporaneous measurements, truck scale tickets, and contemporaneous diaries that are determined acceptable by the county committee. *Repeat crop* means, with respect to production, a commodity that is planted or prevented from being planted in more than one planting period on the same acreage in the same crop year. *RMA* means the Risk Management Agency. *Salvage value* means the dollar amount or equivalent for the quantity of the commodity that cannot be marketed or sold in any recognized market for the crop. *Secondary use* means the harvesting of a crop for a use other than the intended use. *Secondary use value* means the value determined by multiplying the quantity of secondary use times the FSA or CCC-established price for that use. *State committee* means the FSA State committee. *Surface irrigation water* means aqueous supply anticipated for irrigation of agricultural crops absent an eligible disaster condition impacting either the aquifer or watershed. Surface irrigation water may result from feral sources or from irrigation districts. *Tropical crops* has the meaning assigned in part 1437 of this title. *Tropical region* has the meaning assigned in part 1437 of this title. *Unharvested factor* means a percentage established for a crop and applied in a payment formula to reduce the payment for reduced expenses incurred because commercial harvest was not performed. Unharvested factors are generally applicable to all similarly situated participants and are not established in response to individual participants. Accordingly established unharvested factors are not appealable under parts 11 and 780 of this title. *Unit* means, unless otherwise determined by the Deputy Administrator, basic unit as defined in part 457 of this title that, for ornamental nursery production, includes all eligible plant species and sizes. *Unit of measure means:*
(1)For all insured crops, the FCIC-established unit of measure;
(2)For all NAP covered crops, the established unit of measure, if available, used for the 2005, 2006, or 2007 NAP price and yield;
(3)For aquaculture species, a standard unit of measure such as gallons, pounds, inches, or pieces, established by the State committee for all aquaculture species or varieties;
(4)For turfgrass sod, a square yard;
(5)For maple sap, a gallon;
(6)For honey, pounds; and
(7)For all other crops, the smallest unit of measure that lends itself to the greatest level of accuracy with minimal use of fractions, as determined by the State committee. *United States* means all 50 States of the United States, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, and to the extent the Deputy Administrator determines it to be feasible and appropriate, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the former Trust Territory of the Pacific Islands, which include Palau, Federated States of Micronesia, and the Marshall Islands. *USDA* means the United States Department of Agriculture. *USDA Plant Hardiness Zone* means 11 regions or planting zones as defined by a 10 degree Fahrenheit difference in the average annual minimum temperature. *Value loss crop* has the meaning assigned in part 1437 of this title. *Verifiable production record* means:
(1)For quantity losses, evidence that is used to substantiate the amount of production reported and that can be verified by FSA through an independent source; or
(2)For quality losses, evidence that is used to substantiate the amount of production reported and that can be verified by FSA through an independent source including determined quality factors and the specific quantity covered by those factors. *Yield* means unit of production, measured in bushels, pounds, or other unit of measure, per area of consideration, usually measured in acres. § 760.803 Eligibility.
(a)Participants will be eligible to receive disaster benefits under this part only if they incurred qualifying quantity or quality losses for the 2005, 2006, or 2007 crops, as further specified in this part, as a result of damaging weather or any related condition. Participants may not receive benefits with respect to volunteer stands of crops.
(b)Payments may be made for losses suffered by an eligible participant who, at the time of application, is a deceased individual or is a dissolved entity if a representative, who currently has authority to enter into a contract for the participant, signs the 2005, 2006, or 2007 Crop Disaster Program application. Participants must provide proof of the authority to sign legal documents for the deceased individual or dissolved entity. If a participant is now a dissolved general partnership or joint venture, all members of the general partnership or joint venture at the time of dissolution or their duly authorized representatives must sign the application for payment.
(c)As a condition to receive benefits under this part, the Participant must have been in compliance with the Highly Erodible Land Conservation and Wetland Conservation provisions of part 12 of this title for the 2005, 2006, or 2007 crop year, as applicable, and must not otherwise be precluded from receiving benefits under parts 12 or 1400 of this title or any law. § 760.804 Time and method of application.
(a)The 2005, 2006, 2007 Crop Disaster Program application must be submitted on a completed FSA-840, or such other form designated for such application purpose by FSA, in the FSA county office in the participant's control county office before the close of business on a date that will be announced by the Deputy Administrator.
(b)Once signed by a participant, the application for benefits is considered to contain information and certifications of and pertaining to the participant regardless of who entered the information on the application.
(c)The participant requesting benefits under this program certifies the accuracy and truthfulness of the information provided in the application as well as any documentation filed with or in support of the application. All information is subject to verification by FSA. For example, as specified in § 760.818(f), the participant may be required to provide documentation to substantiate and validate quality standards and marketing contract prices. Refusal to allow FSA or any agency of the Department of Agriculture to verify any information provided will result in the participant's forfeiting eligibility under this program. Furnishing required information is voluntary; however without it, FSA is under no obligation to act on the application or approve benefits. Providing a false certification to the government is punishable by imprisonment, fines, and other penalties.
(d)FSA may require the participant to submit any additional information it deems necessary to implement or determine any eligibility provision of this part. For example, as specified in § 760.818(f), the participant may be required to provide documentation to substantiate and validate quality standards and marketing contract prices.
(e)The application submitted in accordance with paragraph
(a)of this section is not considered valid and complete for issuance of payment under this part unless FSA determines all the applicable eligibility provisions have been satisfied and the participant has submitted all of following completed forms:
(1)If Item 16 on FSA-840 is answered “YES,” FSA-840M, Crop Disaster Program for Multiple Crop—Same Acreage Certification;
(2)CCC-502, Farm Operating Plan for Payment Eligibility;
(3)CCC-526, Payment Eligibility Average Adjusted Gross Income Certification;
(4)AD-1026, Highly Erodible Land Conservation
(HELC)and Wetland Conservation Certification; and
(5)FSA-578, Report of Acreage.
(f)Application approval and payment by FSA does not relieve a participant from having to submit any form required, but not filed, according to paragraph
(e)of this section. § 760.805 Limitations on payments and other benefits.
(a)A participant may receive benefits for crop losses for only one of the 2005, 2006, or 2007 crop years as specified under this part.
(b)Payments will not be made under this part for grazing losses.
(c)Payments determined to be issued are considered due and payable not later than 60 days after a participant's application is completed with all information necessary for FSA to determine producer eligibility for benefits.
(d)FSA may divide and classify crops based on loss susceptibility, yield, and other factors.
(e)No person, as defined by part 1400 subpart B of this title, may receive more than a total of $80,000 in disaster benefits under this part. In applying the $80,000 per person payment limitation, regardless of whether 2005, 2006, or 2007 crop year benefits are at issue or sought, the most restrictive “person” determination for the participant in the years 2005, 2006, and 2007, will be used to limit benefits.
(f)No participant may receive disaster benefits under this part in an amount that exceeds 95 percent of the value of the expected production for the relevant period as determined by FSA. Accordingly, the sum of the value of the crop not lost, if any; the disaster payment received under this part; and any crop insurance payment or payments received under the NAP for losses to the same crop, cannot exceed 95 percent of what the crop's value would have been if there had been no loss.
(g)An individual or entity whose adjusted gross income is in excess of $2.5 million, as defined by and determined under part 1400 subpart G of this title, is not eligible to receive disaster benefits under this part.
(h)Any participant in a county eligible for either of the following programs must complete a duplicate benefits certification. If the participant received a payment authorized by either of the following, the amount of that payment will be reduced from the calculated 2005-2007 CDP payment:
(1)The Hurricane Indemnity Program (subpart B of this part);
(2)The Hurricane Disaster Programs (subparts D, E, F, and G of part 1416 of this title);
(3)The 2005 Louisiana Sugarcane Hurricane Disaster Assistance Program; or
(4)The 2005 Crop Florida Sugarcane Disaster Program. § 760.806 Crop eligibility requirements.
(a)A participant on a farm is eligible for assistance under this section with respect to losses to an insurable commodity or NAP if the participant:
(1)In the case of an insurable commodity, obtained a policy or plan of insurance under the Federal Crop Insurance Act for the crop incurring the losses; or
(2)In the case of a NAP covered crop, filed the required paperwork and paid the administrative fee by the applicable filing deadline, for the noninsurable commodity under section 196 of the Federal Agriculture Improvement and Reform Act of 1996 for the crop incurring the losses.
(b)The reasons a participant either elected not to have coverage or did not have coverage mentioned in paragraphs (a)(1) or
(2)of this section are not relevant to the determination of the participant's ineligibility under this section. In addition, such reasons for not having crop insurance coverage have no bearing for consideration under part 718, subpart D of this chapter. § 760.807 Miscellaneous provisions.
(a)A person is not eligible to receive disaster assistance under this part if it is determined by FSA that the person has:
(1)Adopted any scheme or other device that tends to defeat the purpose of this part;
(2)Made any fraudulent representation;
(3)Misrepresented any fact affecting a program determination;
(4)Is ineligible under § 1400.5 of this title; or
(5)Does not have entitlement to an ownership share of the crop.
(i)Growers growing eligible crops under contract for crop owners are not eligible unless the grower can be determined to have a share of the crop.
(ii)Any verbal or written contract that precludes the grower from having an ownership share renders the grower ineligible for benefits under this part.
(b)A person ineligible under § 1437.15(c) of this title for any year is likewise ineligible for benefits under this part for that year or years.
(c)A person ineligible under § 400.458 of this title for any year is likewise ineligible for benefits under this part for that year or years.
(d)All persons with a financial interest in the operation receiving benefits under this part are jointly and severally liable for any refund, including related charges, which is determined to be due FSA for any reason.
(e)In the event that any request for assistance or payment under this part resulted from erroneous information or a miscalculation, the assistance or payment will be recalculated and any excess refunded to FSA with interest to be calculated from the date of the disbursement to the producer.
(f)The liability of anyone for any penalty or sanction under or in connection with this part, or for any refund to FSA or related charge is in addition to any other liability of such person under any civil or criminal fraud statute or any other provision of law including, but not limited to: 18 U.S.C. 286, 287, 371, 641, 651, 1001, and 1014; 15 U.S.C. 714; and 31 U.S.C. 3729.
(g)The regulations in parts 11 and 780 of this title apply to determinations under this part.
(h)Any payment to any person will be made without regard to questions of title under State law and without regard to any claim or lien against the crop, or its proceeds.
(i)For the purposes of the effect of lien on eligibility for Federal programs (28 U.S.C. 3201(e)), FSA waives the restriction on receipt of funds or benefits under this program but only as to beneficiaries who, as a condition of such waiver, agree to apply the benefits received under this part to reduce the amount of the judgment lien.
(j)Under this program, participants are either eligible or ineligible. Participants in general, do not render performance or need to comply. They either suffered eligible losses or they did not. Accordingly, the provisions of § 718.304 of this chapter do not apply to this part. § 760.808 General provisions.
(a)For calculations of loss, the participant's existing unit structure will be used as the basis for the calculation established in accordance with:
(1)For insured crops, part 457 of this title; or
(2)For NAP covered crops, part 1437 of this title.
(b)County average yield for loss calculations will be the average of the 2001 through 2005 official county yields established by FSA, excluding the years with the highest and lowest yields, respectively.
(c)County committees will assign production or reduce the historic yield when the county committee determines:
(1)An acceptable appraisal or record of harvested production does not exist;
(2)The loss is due to an ineligible cause of loss or practices, soil type, climate, or other environmental factors that cause lower yields than those upon which the historic yield is based;
(3)The participant has a contract providing a guaranteed payment for all or a portion of the crop; or
(4)The crop was planted beyond the normal planting period for the crop.
(d)The county committee will establish a maximum average loss level that reflects the amount of production producers would have produced if not for the eligible damaging weather or related conditions in the area or county for the same crop. The maximum average loss level for the county will be expressed as either a percent of loss or yield per acre. The maximum average loss level will apply when:
(1)Unharvested acreage has not been appraised by FSA, or a company reinsured by FCIC; or
(2)Acceptable production records for harvested acres are not available from any source.
(e)Assignment of production or reduction in yield will apply for practices that result in lower yields than those for which the historic yield is based. § 760.809 Eligible damaging conditions.
(a)Except as provided in paragraphs
(b)and
(c)of this section, to be eligible for benefits under this part the loss of the crop, or reduction in quality, or prevented planting must be due to damaging weather or related conditions as defined in § 760.802.
(b)Benefits are not available under this part for any losses in quantity or quality, or prevented planting due to:
(1)Poor farming practices;
(2)Poor management decisions; or
(3)Drifting herbicides.
(c)With the exception of paragraph
(d)of this section, in all cases, the eligible damaging condition must have directly impacted the specific crop or crop acreage during its planting or growing period.
(d)If FSA has determined that there has been an eligible loss of surface irrigation water due to drought and such loss of surface irrigation water impacts eligible crop acreage, FSA may approve assistance to the extent permitted by section 760.814. § 760.810 Qualifying 2005, 2006, or 2007 quantity crop losses.
(a)To receive benefits under this part, the county committee must determine that because of eligible damaging weather or related condition specifically impacting the crop or crop acreage, the participant with respect to the 2005, 2006, or 2007 crop:
(1)Was prevented from planting a crop;
(2)Sustained a loss in excess of 35 percent of the expected production of a crop; or
(3)Sustained a loss in excess of 35 percent of the value for value loss crops.
(b)Qualifying losses under this part do not include losses:
(1)For the 2007 crop, those acres planted, or in the case of prevented planting, would have been planted, on or after February 28, 2007;
(2)That are determined by FSA to be the result of poor management decisions, poor farming practices, or drifting herbicides;
(3)That are the result of the failure of the participant to re-seed or replant the same crop in the county where it is customary to re-seed or replant after a loss;
(4)That are not as a result of a damaging weather or a weather related condition specifically impacting the crop or crop acreage;
(5)To crops not intended for harvest in crop year 2005, 2006, or 2007;
(6)Of by-products resulting from processing or harvesting a crop, such as cottonseed, peanut shells, wheat, or oat straw;
(7)To home gardens;
(8)That are a result of water contained or released by any governmental, public, or private dam or reservoir project if an easement exists on the acreage affected for the containment or release of the water; or
(9)If losses could be attributed to conditions occurring outside of the applicable crop year growing season.
(c)Qualifying losses under this part for nursery stock will not include losses:
(1)For the 2007 crop, that nursery inventory acquired on or after February 28, 2007;
(2)Caused by a failure of power supply or brownouts;
(3)Caused by the inability to market nursery stock as a result of lack of compliance with State and local commercial ordinances and laws, quarantine, boycott, or refusal of a buyer to accept production;
(4)Caused by fire unless directly related to an eligible natural disaster;
(5)Affecting crops where weeds and other forms of undergrowth in the vicinity of the nursery stock have not been controlled; or
(6)Caused by the collapse or failure of buildings or structures.
(d)Qualifying losses under this part for honey, where the honey production by colonies or bees was diminished, will not include losses:
(1)For the 2007 crop, for production from those bees acquired on or after February 28, 2007;
(2)Where the inability to extract was due to the unavailability of equipment, the collapse or failure of equipment, or apparatus used in the honey operation;
(3)Resulting from storage of honey after harvest;
(4)To honey production because of bee feeding;
(5)Caused by the application of chemicals;
(6)Caused by theft, fire, or vandalism;
(7)Caused by the movement of bees by the producer or any other person; or
(8)Due to disease or pest infestation of the colonies.
(e)Qualifying losses for other value loss crops, except nursery, will not include losses for the 2007 crop that were acquired on or after February 28, 2007.
(f)Loss calculations will take into account other conditions and adjustments provided for in this part. § 760.811 Rates and yields; calculating payments. (a)(1) Payments made under this part to a participant for a loss of quantity on a unit with respect to yield-based crops are determined by multiplying the average market price times 42 percent, times the loss of production which exceeds 35 percent of the expected production, as determined by FSA, of the unit.
(2)Payments made under this part to a participant for a quantity loss on a unit with respect to value-based crops are determined by multiplying the payment rate established for the crop by FSA times the loss of value that exceeds 35 percent of the expected production value, as determined by FSA, of the unit.
(3)As determined by FSA, additional quality loss payments may be made using a 25 percent quality loss threshold. The quality loss threshold is determined according to § 760.817.
(b)Payment rates for the 2005, 2006, or 2007 year crop losses will be 42 percent of the average market price.
(c)Separate payment rates and yields for the same crop may be established by the State committee as authorized by the Deputy Administrator, when there is supporting data from NASS or other sources approved by FSA that show there is a significant difference in yield or value based on a distinct and separate end use of the crop. Despite potential differences in yield or values, separate rates or yields will not be established for crops with different cultural practices, such as those grown organically or hydroponically.
(d)Production from all end uses of a multi-use crop or all secondary uses for multiple market crops will be calculated separately and summarized together.
(e)Each eligible participant's share of a disaster payment will be based on the participant's ownership entitlement share of the crop or crop proceeds, or, if no crop was produced, the share of the crop the participant would have received if the crop had been produced. If the participant has no ownership share of the crop, the participant is ineligible for assistance under this part.
(f)When calculating a payment for a unit loss:
(1)An unharvested payment factor will be applied to crop acreage planted but not harvested;
(2)A prevented planting factor will be applied to any prevented planted acreage eligible for payment; and
(3)Unharvested payment factors may be adjusted if costs normally associated with growing the crop are not incurred. § 760.812 Production losses; participant responsibility.
(a)Where available and determined accurate by FSA, RMA loss records will be used for insured crops.
(b)If RMA loss records are not available, or if the FSA county committee determines the RMA loss records are inaccurate or incomplete, or if the FSA county committee makes inquiry, participants are responsible for:
(1)Retaining or providing, when required, the best verifiable or reliable production records available for the crop;
(2)Summarizing all the production evidence;
(3)Accounting for the total amount of unit production for the crop, whether or not records reflect this production;
(4)Providing the information in a manner that can be easily understood by the county committee; and
(5)Providing supporting documentation if the county committee has reason to question the damaging weather event or question whether all production has been accounted for.
(c)In determining production under this section, the participant must supply verifiable or reliable production records to substantiate production to the county committee. If the eligible crop was sold or otherwise disposed of through commercial channels, production records include: commercial receipts; settlement sheets; warehouse ledger sheets; load summaries; or appraisal information from a loss adjuster acceptable to FSA. If the eligible crop was farm-stored, sold, fed to livestock, or disposed of in means other than commercial channels, production records for these purposes include: truck scale tickets; appraisal information from a loss adjuster acceptable to FSA; contemporaneous diaries; or other documentary evidence, such as contemporaneous measurements.
(d)Participants must provide all records for any production of a crop that is grown with an arrangement, agreement, or contract for guaranteed payment. § 760.813 Determination of production.
(a)Production under this part includes all harvested production, unharvested appraised production, and assigned production for the total planted acreage of the crop on the unit.
(b)The harvested production of eligible crop acreage harvested more than once in a crop year includes the total harvested production from all these harvests.
(c)If a crop is appraised and subsequently harvested as the intended use, the actual harvested production must be taken into account to determine benefits. FSA will analyze and determine whether a participant's evidence of actual production represents all that could or would have been harvested.
(d)For all crops eligible for loan deficiency payments or marketing assistance loans with an intended use of grain but harvested as silage, ensilage, cobbage, hay, cracked, rolled, or crimped, production will be adjusted based on a whole grain equivalent as established by FSA.
(e)For crops with an established yield and market price for multiple intended uses, a value will be calculated by FSA with respect to the intended use or uses for disaster purposes based on historical production and acreage evidence provided by the participant and FSA will determine the eligible acres for each use.
(f)For crops sold in a market that is not a recognized market for the crop with no established county average yield and average market price, 42 percent of the salvage value received will be deducted from the disaster payment.
(g)If a participant does not receive compensation based upon the quantity of the commodity delivered to a purchaser, but has an agreement or contract for guaranteed payment for production, the determination of the production will be the greater of the actual production or the guaranteed payment converted to production as determined by FSA.
(h)Production that is commingled between units before it was a matter of record or combination of record and cannot be separated by using records or other means acceptable to FSA will be prorated to each respective unit by FSA. Commingled production may be attributed to the applicable unit, if the participant made the unit production of a commodity a matter of record before commingling and does any of the following, as applicable:
(1)Provides copies of verifiable documents showing that production of the commodity was purchased, acquired, or otherwise obtained from beyond the unit;
(2)Had the production measured in a manner acceptable to the county committee; or
(3)Had the current year's production appraised in a manner acceptable to the county committee.
(i)The county committee will assign production for the unit when the county committee determines that:
(1)The participant has failed to provide adequate and acceptable production records;
(2)The loss to the crop is because of a disaster condition not covered by this part, or circumstances other than natural disaster, and there has not otherwise been an accounting of this ineligible cause of loss;
(3)The participant carries out a practice, such as multiple cropping, that generally results in lower yields than the established historic yields;
(4)The participant has a contract to receive a guaranteed payment for all or a portion of the crop;
(5)A crop was late-planted;
(6)Unharvested acreage was not timely appraised; or
(7)Other appropriate causes exist for such assignment as determined by the Deputy Administrator.
(j)For peanuts, the actual production is all peanuts harvested for nuts, regardless of their disposition or use, as adjusted for low quality.
(k)For tobacco, the actual production is the sum of the tobacco: marketed or available to be marketed; destroyed after harvest; and produced but unharvested, as determined by an appraisal. § 760.814 Calculation of acreage for crop losses other than prevented planted.
(a)Payment acreage of a crop is limited to the lesser of insured acreage or NAP covered acreage of the crop, as applicable, or actual acreage of the crop planted for harvest.
(b)In cases where there is a repeat crop or a multiple planted crop in more than one planting period, or if there is multiple cropped acreage meeting criteria established in paragraph
(c)or
(d)of this section, each of these crops may be considered separate crops if the county committee determines that all of the following conditions are met:
(1)Were planted with the intent to harvest;
(2)Were planted within the normal planting period for that crop;
(3)Meet all other eligibility provisions of this part including good farming practices; and
(4)Could reach maturity if each planting was harvested or would have been harvested.
(c)In cases where there is multiple-cropped acreage, each crop may be eligible for disaster assistance separately if both of the following conditions are met:
(1)The specific crops are approved by the State committee as eligible multiple-cropping practices in accordance with procedures approved by the Deputy Administrator and separately meet all requirements, including insurance or NAP requirements ; and
(2)The farm containing the multiple-cropped acreage has a history of successful multiple cropping more than one crop on the same acreage in the same crop year, in the year previous to the disaster, or at least 2 of the 4 crop years immediately preceding the disaster crop year based on timely filed crop acreage reports.
(d)A participant with multiple-cropped acreage not meeting the criteria in paragraph
(c)of this section may be eligible for disaster assistance on more than one crop if the participant has verifiable records establishing a history of carrying out a successful multiple-cropping practice on the specific crops for which assistance is requested. All required records acceptable to FSA as determined by the Deputy Administrator must be provided before payments are issued.
(e)A participant with multiple-cropped acreage not meeting the criteria in paragraphs
(c)or
(d)of this section must select the crop for which assistance will be requested. If more than one participant has an interest in the multiple cropped acreage, all participants must agree to the crop designated for payment by the end of the application period or no payment will be approved for any crop on the multiple-cropped acreage.
(f)Benefits under this part apply to irrigated crops where, in cases determined by the Deputy Administrator, acreage was affected by a lack of surface irrigation water due to drought or contamination of ground water or surface irrigation water due to saltwater intrusion. In no case is a loss of ground water, for any reason, an eligible cause of loss. § 760.815 Calculation of prevented planted acreage.
(a)When determining losses under this part, prevented planted acreage will be considered separately from planted acreage of the same crop.
(b)For insured crops, or NAP covered crops, as applicable, disaster payments under this part for prevented planted acreage will not be made unless RMA or FSA, as applicable, documentation indicates that the eligible participant received a prevented planting payment under either NAP or the RMA-administered program.
(c)The participant must prove, to the satisfaction of the county committee, an intent to plant the crop and that such crop could not be planted because of an eligible disaster. The county committee must be able to determine the participant was prevented from planting the crop by an eligible disaster that:
(1)Prevented other producers from planting on acreage with similar characteristics in the surrounding area;
(2)Occurred after the previous planting period for the crop; and
(3)Unless otherwise approved by the Deputy Administrator, began no earlier than the planting season for that crop.
(d)Prevented planted disaster benefits under this part do not apply to:
(1)Acreage not insured or NAP covered;
(2)Any acreage on which a crop other than a cover crop was harvested, hayed, or grazed during the crop year;
(3)Any acreage for which a cash lease payment is received for the use of the acreage the same crop year, unless the county committee determines the lease was for haying and grazing rights only and was not a lease for use of the land;
(4)Acreage for which the participant or any other person received a prevented planted payment for any crop for the same acreage, excluding share arrangements;
(5)Acreage for which the participant cannot provide verifiable proof to the county committee that inputs such as seed, chemicals, and fertilizer were available to plant and produce a crop with the expectation of producing at least a normal yield; and
(6)Any other acreage for which, for whatever reason, there is cause to question whether the crop could have been planted for a successful and timely harvest, or for which prevented planting credit is not allowed under the provisions of this part.
(e)Prevented planting payments are not provided on acreage that had either a previous or subsequent crop planted in the same crop year on the acreage, unless the county committee determines that all of the following conditions are met:
(1)There is an established practice of planting two or more crops for harvest on the same acreage in the same crop year;
(2)Both crops could have reached maturity if each planting was harvested or would have been harvested;
(3)Both the initial and subsequent planted crops were planted or prevented planting within the normal planting period for that crop;
(4)Both the initial and subsequent planted crops meet all other eligibility provisions of this part including good farming practices; and
(5)The specific crops meet the eligibility criteria for a separate crop designation as a repeat or approved multiple cropping practice set out in § 760.814. (f)(1) Disaster benefits under this part do not apply to crops where the prevented planted acreage was affected by a disaster that was caused by drought unless on the final planting date or the late planting period for non-irrigated acreage, the area that was prevented from being planted had insufficient soil moisture for germination of seed and progress toward crop maturity because of a prolonged period of dry weather;
(2)Verifiable information collected by sources whose business or purpose is to record weather conditions, including, but not limited to, local weather reporting stations of the U.S. National Weather Service.
(g)Prevented planting benefits under this part apply to irrigated crops where adequate irrigation facilities were in place before the eligible disaster and the acreage was prevented from being planted due to a lack of water resulting from drought conditions or contamination by saltwater intrusion of an irrigation supply resulting from drought conditions.
(h)For NAP covered crops, prevented planting provisions apply according to part 718 of this chapter.
(i)Late-filed crop acreage reports for prevented planted acreage in previous years are not acceptable for CDP purposes. § 760.816 Value loss crops.
(a)Notwithstanding any other provisions of this part, this section applies to value loss crops and tropical crops. Unless otherwise specified, all the eligibility provisions of part 1437 of this title apply to value loss crops and tropical crops under this part.
(b)For value loss crops, benefits under this part are calculated based on the loss of value at the time of the damaging weather or related condition, as determined by FSA.
(c)For tropical crops:
(1)CDP benefits for 2005 are calculated according to general provisions of part 1437, but not subpart F, of this title.
(2)CDP benefits for 2006 and 2007 are calculated according to part 1437, subpart F of this title. § 760.817 Quality losses for 2005, 2006, and 2007 crops.
(a)Subject to other provisions of this part, assistance will be made available to participants determined eligible under this section for crop quality losses of 25 percent or greater of the value that all affected production of the crop would have had if the crop had not suffered a quality loss.
(b)The amount of payment for a quality loss will be equal to 65 percent of the quantity of the crop affected by the quality loss, not to exceed expected production based on harvested acres, multiplied by 42 percent of the per unit average market value based on percentage of quality loss for the crop as determined by the Deputy Administrator.
(c)This section applies to all crops eligible for 2005, 2006, and 2007 crop disaster assistance under this part, with the exceptions of value loss crops, honey, and maple sap, and applies to crop production that has a reduced economic value due to the reduction in quality.
(d)Participants may not be compensated under this section to the extent that such participants have received assistance under other provisions of this part, attributable in whole or in part to diminished quality. § 760.818 Marketing contracts.
(a)A marketing contract must meet all of the conditions outlined in paragraphs (b), (c), and
(d)of this section.
(b)A marketing contract, at a minimum, must meet all of the following conditions:
(1)Be a legal contract in the State where executed;
(2)Specify the commodity under contract;
(3)Specify crop year;
(4)Be signed by both the participant, or legal representative, and the purchaser of the specified commodity;
(5)Include a commitment to deliver the contracted quantity;
(6)Include a commitment to purchase the contracted quantity that meets specified minimum quality standards and other criteria as specified;
(7)Define a determinable quantity by containing either a:
(i)Specified production quantity or
(ii)A specified acreage for which production quantity can be calculated;
(8)Define a determinable price by containing either a:
(i)Specified price or
(ii)Method to determine such a price;
(9)Contain a relationship between the price and the quality using either:
(i)Specified quality standards or
(ii)A method to determine such quality standards from published third party data; and
(10)Have been executed within 10 days after:
(i)End of insurance period for insured crops or
(ii)Normal harvest date for NAP covered crops as determined by FSA.
(c)The purchaser of the commodity specified in the marketing contract must meet at least one of the following:
(1)Be a licensed commodity warehouseman;
(2)Be a business enterprise regularly engaged in the processing of a commodity, that possesses all licenses and permits for marketing the commodity required by the State in which it operates, and that possesses or has contracted for facilities with enough equipment to accept and process the commodity within a reasonable amount of time after harvest; or
(3)Is able to physically receive the harvested production.
(d)In order for the commodity specified in the marketing contract to be considered sold pursuant to the marketing contract, the commodity must have been produced by the participant in the crop year specified in the contract, and at least one of the following conditions must be met:
(1)Commodity was sold under the terms of the contract or
(2)Participant attempted to deliver the commodity to the purchaser, but the commodity was rejected due to quality factors as specified in the contract.
(e)The amount of payment for affected production, as determined in § 760.817(b), sold pursuant to one or more marketing contracts will take into consideration the marketing contract price as determined by FSA.
(f)County committees have the authority to require a participant to provide necessary documentation, which may include, but is not limited to, previous marketing contracts fulfilled, to substantiate and validate quality standards in paragraph (b)(9) of this section and marketing contract price received for the commodity for which crop quality loss assistance is requested. In cases where the county committee has reason to believe the participant lacks the capacity or history to fulfill the quality provisions of the marketing contract the county committee will require such documentation. § 760.819 Misrepresentation, scheme, or device.
(a)A person is ineligible to receive assistance under this part if it is determined that such person has:
(1)Adopted any scheme or device that tends to defeat the purpose of this program;
(2)Made any fraudulent representation under this program;
(3)Misrepresented any fact affecting a program or person determination; or
(4)Has violated or been determined ineligible under § 1400.5 of this title. § 760.820 Offsets, assignments, and debt settlement.
(a)Except as provided in paragraph
(b)of this section, any payment to any person will be made without regard to questions of title under State law and without regard to any claim or lien against the crop, or proceeds, in favor of the owner or any other creditor except agencies of the U.S. Government. The regulations governing offsets and withholdings found at part 1403 of this title apply to any payments made under this part.
(b)Any participant entitled to any payment may assign any payments in accordance with regulations governing the assignment of payments found at part 1404 of this title.
(c)A debt or claim may be settled according to part 792 of this chapter. § 760.821 Compliance with highly erodible land and wetland conservation.
(a)The highly erodible land and wetland conservation provisions of part 12 of this title apply to the receipt of disaster assistance for 2005, 2006, and 2007 crop losses made available under this authority.
(b)Eligible participants must be in compliance with the highly erodible land and wetland conservation compliance provisions for the year for which financial assistance is requested. Subpart J—2005-2007 Livestock Indemnity Program § 760.900 Administration.
(a)The regulations in this subpart specify the terms and conditions applicable to the 2005-2007 Livestock Indemnity Program (2005-2007 LIP), which will be administered under the general supervision and direction of the Administrator, FSA.
(b)FSA representatives do not have authority to modify or waive any of the provisions of the regulations of this subpart.
(c)The State FSA committee will take any action required by the regulations of this subpart that the county FSA committee has not taken. The State FSA committee will also:
(1)Correct, or require a county committee to correct, any action taken by such county committee that is not in accordance with the regulations of this subpart; or
(2)Require a county committee to withhold taking any action that is not in accordance with this subpart.
(d)No delegation to a State or county FSA committee will preclude the Deputy Administrator for Farm Programs from determining any question arising under the program or from reversing or modifying any determination made by a State or county FSA committee. § 760.901 Applicability.
(a)This subpart establishes the terms and conditions under which the 2005-2007 LIP will be administered under Title IX of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28) for eligible counties as specified in § 760.902(a).
(b)Eligible livestock owners and contract growers will be compensated in accordance with § 760.909 for eligible livestock deaths that occurred in eligible counties as a direct result of an eligible disaster event. Drought is not an eligible disaster event except when anthrax, as a related condition that occurs as a result of drought, results in the death of eligible livestock. § 760.902 Eligible counties and disaster periods. Counties are eligible for agricultural assistance under the 2005-2007 LIP if they received a timely Presidential designation, a timely Secretarial declaration, or a qualifying Administrator's Physical Loss Notice
(APLN)determination in a county otherwise the subject of a timely Presidential declaration, or are counties contiguous to such counties. Presidential designations and Secretarial declarations will be considered timely only if made after January 1, 2005, and before February 28, 2007. Eligible counties, disaster events, and disaster periods are listed at *http://disaster.fsa.usda.gov* . § 760.903 Definitions. The following definitions apply to this subpart. The definitions in parts 718 and 1400 of this title also apply, except where they conflict with the definitions in this section. *Adult beef bull* means a male beef bovine animal that was at least 2 years old and used for breeding purposes before it died. *Adult beef cow* means a female beef bovine animal that had delivered one or more offspring before dying. A first-time bred beef heifer is also considered an adult beef cow if it was pregnant at the time it died. *Adult buffalo and beefalo bull* means a male animal of those breeds that was at least 2 years old and used for breeding purposes before it died. *Adult buffalo and beefalo cow* means a female animal of those breeds that had delivered one or more offspring before dying. A first-time bred buffalo or beefalo heifer is also considered an adult buffalo or beefalo cow if it was pregnant at the time it died. *Adult dairy bull* means a male dairy breed bovine animal at least 2 years old used primarily for breeding dairy cows before it died. *Adult dairy cow* means a female bovine animal used for the purpose of providing milk for human consumption that had delivered one or more offspring before dying. A first-time bred dairy heifer is also considered an adult dairy cow if it was pregnant at the time it died. *Agricultural operation* means a farming operation. *Application* means the “2005-2007 Livestock Indemnity Program” form. *Application period* means the date established by the Deputy Administrator for Farm Programs for participants to apply for program benefits. *Buck* means a male goat. *Catfish* means catfish grown as food for human consumption by a commercial operator on private property in water in a controlled environment. *Commercial use* means used in the operation of a business activity engaged in as a means of livelihood for profit by the eligible producer to apply for program benefits. *Contract* means, with respect to contracts for the handling of livestock, a written agreement between a livestock owner and another individual or entity setting the specific terms, conditions, and obligations of the parties involved regarding the production of livestock or livestock products. *Controlled environment* means an environment in which everything that can practicably be controlled by the participant with structures, facilities, and growing media (including, but not limited to, water and nutrients) and was in fact controlled by the participant at the time of the disaster. *Crawfish* means crawfish grown as food for human consumption by a commercial operator on private property in water in a controlled environment. *Deputy Administrator* means the Deputy Administrator for Farm Programs, Farm Service Agency, U.S. Department of Agriculture or the designee. *Doe* means a female goat. *Equine animal* means a domesticated horse, mule, or donkey. *Ewe* means a female sheep. *Farming operation* means a business enterprise engaged in producing agricultural products. *Goat* means a domesticated, ruminant mammal of the genus *Capra,* including Angora goats. Goats are further defined by sex (bucks and does) and age (kids). *Kid* means a goat less than 1 year old. *Lamb* means a sheep less than 1 year old. *Livestock owner* means one having legal ownership of the livestock for which benefits are being requested on the day such livestock died due to an eligible disaster. *Non-adult beef cattle* means a bovine that does not meet the definition of adult beef cow or bull. Non-adult beef cattle are further delineated by weight categories of less than 400 pounds, and 400 pounds or more at the time they died. *Non-adult buffalo or beefalo* means an animal of those breeds that does not meet the definition of adult buffalo/beefalo cow or bull. Non-adult buffalo or beefalo are further delineated by weight categories of less than 400 pounds, and 400 pounds or more at the time of death. *Non-adult dairy cattle* means a bovine livestock, of a breed used for the purpose of providing milk for human consumption, that do not meet the definition of adult dairy cow or bull. Non-adult dairy cattle are further delineated by weight categories of less than 400 pounds, and 400 pounds or more at the time they died. *Poultry* means domesticated chickens, turkeys, ducks, and geese. Poultry are further delineated by sex, age, and purpose of production as determined by FSA. *Ram* means a male sheep. *Sheep* means a domesticated, ruminant mammal of the genus *Ovis* . Sheep are further defined by sex (rams and ewes) and age (lambs). *Swine* means a domesticated omnivorous pig, hog, and boar. Swine are further delineated by sex and weight as determined by FSA. § 760.904 Limitations on payments and other benefits.
(a)A participant may receive benefits for livestock losses for only one of the 2005, 2006, or 2007 calendar years as specified under this part.
(b)A “person” as determined under part 1400 of this title may receive no more than $80,000 under this subpart. In applying the $80,000 per person payment limitation, regardless of whether 2005, 2006, or 2007 calendar year benefits are at issue or sought, the most restrictive “person” determination for the participant in the years 2005, 2006, and 2007, will be used to limit benefits.
(c)The provisions of part 1400, subpart G, of this title relating to limits to payments for individuals or entities with certain levels of adjusted gross income apply to this program.
(d)As a condition to receive benefits under this subpart, a participant must have been in compliance with the provisions of parts 12 and 718 of this title and must not otherwise be precluded from receiving benefits under any law.
(e)An individual or entity determined to be a foreign person under part 1400 of this title is not eligible to receive benefits under this subpart. § 760.905 Eligible owners and contract growers.
(a)To be considered eligible, a livestock owner must have had legal ownership of the eligible livestock, as provided in § 760.906(a), on the day the livestock died.
(b)To be considered eligible, a contract grower on the day the livestock died must have had:
(1)A written agreement with the owner of eligible livestock setting the specific terms, conditions, and obligations of the parties involved regarding the production of livestock; and
(2)Control of the eligible livestock, as provided in § 760.906(b), on the day the livestock died. § 760.906 Eligible livestock.
(a)To be considered eligible livestock for livestock owners, livestock must be adult or non-adult dairy cattle, beef cattle, buffalo, beefalo, catfish, crawfish, equine, sheep, goats, swine, poultry, deer, or reindeer and meet all the conditions in paragraph
(c)of this section.
(b)To be considered eligible livestock for contract growers, livestock must be poultry or swine as defined in § 760.903 and meet all the conditions in paragraph
(c)of this section.
(c)To be considered eligible, livestock must meet all of the following conditions:
(1)Died in an eligible county as a direct result of an eligible disaster event;
(i)After January 1, 2005, but before February 28, 2007;
(ii)No later than 60 calendar days from the ending date of the applicable disaster period, but before February 28, 2007; and
(iii)In the calendar year for which benefits are being requested.
(2)The disaster event that caused the loss must be the same event for which a natural disaster was declared or designated.
(3)Been maintained for commercial use as part of a farming operation on the day they died; and
(4)Before dying, not have been produced or maintained for reasons other than commercial use as part of a farming operation, including, but not limited to, wild free roaming animals or animals used for recreational purposes, such as pleasure, hunting, roping, pets, or for show.
(d)In those counties in § 760.902, the following types of animals owned by a livestock owner are eligible livestock:
(1)Adult beef bulls;
(2)Adult beef cows;
(3)Adult buffalo or beefalo bulls;
(4)Adult buffalo or beefalo cows;
(5)Adult dairy bulls;
(6)Adult dairy cows;
(7)Catfish;
(8)Chickens, broilers, pullets;
(9)Chickens, chicks;
(10)Chickens, layers, roasters;
(11)Crawfish;
(12)Deer;
(13)Ducks;
(14)Ducks, ducklings;
(15)Equine;
(16)Geese, goose;
(17)Geese, gosling;
(18)Goats, bucks;
(19)Goats, does;
(20)Goats, kids;
(21)Non-adult beef cattle;
(22)Non-adult buffalo/beefalo;
(23)Non-adult dairy cattle;
(24)Reindeer
(25)Sheep, ewes;
(26)Sheep, lambs;
(27)Sheep, rams;
(28)Swine, feeder pigs under 50 pounds;
(29)Swine, sows, boars, barrows, gilts 50 to 150 pounds;
(30)Swine, sows, boars, barrows, gilts over 150 pounds;
(31)Turkeys, poults; and
(32)Turkeys, toms, fryers, and roasters.
(e)In those counties in § 760.902, the following types of animals are eligible livestock for contract growers:
(1)Chickens, broilers, pullets;
(2)Chickens, layers, roasters;
(3)Geese, goose;
(4)Swine, boars, sows;
(5)Swine, feeder pigs;
(6)Swine, lightweight barrows, gilts;
(7)Swine, sows, boars, barrows, gilts; and
(8)Turkeys, toms, fryers, and roasters. § 760.907 Application process.
(a)To apply for 2005-2007 LIP, submit a completed application to the administrative county FSA office that maintains the farm records for your agricultural operation, a copy of your grower contract, if you are a contract grower, and other supporting documents required for determining your eligibility as an applicant. Supporting documents must show:
(1)Evidence of loss,
(2)Current physical location of livestock in inventory, and
(3)Physical location of claimed livestock at the time of death.
(b)The application must be filed during the application period announced by the Deputy Administrator.
(c)A minor child is eligible to apply for program benefits if all eligibility requirements are met and one of the following conditions exists:
(1)The right of majority has been conferred upon the minor by court proceedings or statute;
(2)A guardian has been appointed to manage the minor's property, and the applicable program documents are executed by the guardian; or
(3)A bond is furnished under which a surety guarantees any loss incurred for which the minor would be liable had the minor been an adult.
(d)The participant must provide adequate proof that the death of the eligible livestock occurred in an eligible county as a direct result of an eligible disaster event during the applicable disaster period. The quantity and kind of livestock that died as a direct result of the eligible disaster event may be documented by: purchase records; veterinarian records; bank or other loan papers; rendering truck receipts; Federal Emergency Management Agency records; National Guard records; written contracts; production records; Internal Revenue Service records; property tax records; private insurance documents; and other similar verifiable documents as determined by FSA.
(e)Certification of livestock deaths by third parties may be accepted only if both the following conditions are met:
(1)The livestock owner or livestock contract grower, as applicable, certifies in writing:
(i)That there is no other documentation of death available;
(ii)The number of livestock, by category determined by FSA, were in inventory at the time the applicable disaster event occurred; and
(iii)Other details required for FSA to determine the certification acceptable; and
(2)The third party provides their telephone number, address, and a written statement containing:
(i)Specific details about their knowledge of the livestock deaths;
(ii)Their affiliation with the livestock owner;
(iii)The accuracy of the deaths claimed by the livestock owner; and
(iv)Other details required by FSA to determine the certification acceptable.
(f)Data furnished by the participant will be used to determine eligibility for program benefits. Furnishing the data is voluntary; however, without all required data program benefits will not be approved or provided. § 760.908 Deceased individuals or dissolved entities.
(a)Payments may be made for eligible losses suffered by an eligible participant who is now a deceased individual or is a dissolved entity if a representative, who currently has authority to enter into a contract, on behalf of the participant, signs the application for payment.
(b)Legal documents showing proof of authority to sign for the deceased individual or dissolved entity must be provided.
(c)If a participant is now a dissolved general partnership or joint venture, all members of the general partnership or joint venture at the time of dissolution or their duly authorized representatives must sign the application for payment. § 760.909 Payment calculation.
(a)Under this subpart separate payment rates are established for eligible livestock owners and eligible livestock contract growers in accordance with paragraphs
(b)and
(c)of this section. Payments for the 2005-2007 LIP are calculated by multiplying the national payment rate for each livestock category, as determined in paragraphs
(b)and
(c)of this section, by the number of eligible livestock in each category, as provided in § 760.906. Adjustments will be applied in accordance with paragraphs
(d)and
(e)of this section.
(b)The 2005-2007 LIP national payment rate for eligible livestock owners is based on 26 percent of the average fair market value of the livestock.
(c)The 2005-2007 LIP national payment rate for eligible livestock contract growers is based on 26 percent of the average income loss sustained by the contract grower with respect to the dead livestock.
(d)The 2005 payment calculated under 2005-2007 LIP for eligible livestock owners will be reduced by the amount the participant received under:
(1)The Livestock Indemnity Program (subpart E of this part);
(2)The Aquaculture Grant Program (subpart G of this part); and
(3)The Livestock Indemnity Program II (part 1416, subpart C of this title).
(e)The 2005 payment calculated under 2005-2007 LIP for eligible livestock contract growers will be reduced by the amount the participant received:
(1)Under the Livestock Indemnity Program (subpart E of this part);
(2)For the loss of income from the dead livestock from the party who contracted with the producer to grow the livestock; and
(3)Under the Livestock Indemnity Program II (part 1416, subpart C of this title). § 760.910 Appeals. The appeal regulations set forth at parts 11 and 780 of this title apply to determinations made pursuant to this subpart. § 760.911 Offsets, assignments, and debt settlement.
(a)Any payment to any participant will be made without regard to questions of title under State law and without regard to any claim or lien against the commodity, or proceeds, in favor of the owner or any other creditor except agencies of the U.S. Government. The regulations governing offsets and withholdings found at part 792 of this chapter apply to payments made under this subpart.
(b)Any participant entitled to any payment may assign any payment in accordance with regulations governing the assignment of payments found at part 1404 of this title. § 760.912 Records and inspections. Participants receiving payments under this subpart or any other person who furnishes information for the purposes of enabling such participant to receive a payment under this subpart must maintain any books, records, and accounts supporting any information so furnished for 3 years following the end of the year during which the application for payment was filed. Participants receiving payments or any other person who furnishes such information to FSA must allow authorized representatives of USDA and the General Accountability Office, during regular business hours, to inspect, examine, and make copies of such books or records, and to enter upon, inspect and verify all applicable livestock and acreage in which the participant has an interest for the purpose of confirming the accuracy of information provided by or for the participant. § 760.913 Refunds; joint and several liability. In the event there is a failure to comply with any term, requirement, or condition for payment or assistance arising under this subpart, and if any refund of a payment to FSA will otherwise become due in connection with this subpart, all payments made in regard to such matter must be refunded to FSA together with interest and late-payment charges as provided for in part 792 of this chapter. Signed in Washington, DC, December 18, 2007. Teresa C. Lasseter, Administrator, Farm Service Agency. [FR Doc. 07-6153 Filed 12-19-07; 9:03 am]
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Traces to 27 documents
U.S. Code
39 references not yet in our index
  • 17 CFR 240.19
  • 15 USC 80a
  • 17 CFR 240.12
  • 15 USC 78
  • 14 CFR 298
  • 23 CFR 771
  • 40 CFR 93
  • 40 CFR 230
  • 36 CFR 800
  • 50 CFR 402
  • 23 CFR 771.135
  • 49 CFR 192.611
  • 49 CFR 192
  • 49 CFR 192.903
  • 49 CFR 192.945
  • 49 CFR 192.939
  • 49 CFR 192.929
  • 49 CFR 192.933
  • 49 CFR 192.485
  • 49 CFR 1.53
  • 426 U.S. 500
  • 29 F.3d 706
  • 49 CFR 1105.7
  • 49 CFR 1105.7(e)(5)(i)
  • 14 CFR 39
  • 7 CFR 760
  • Pub. L. 110-28
  • 7 CFR 1400
  • Pub. L. 106-387
  • 7 CFR 718
  • 42 USC 4321-4347
  • 7 CFR 799
  • 7 CFR 3015
  • Pub. L. 104-121
  • 114 Stat. 1549
  • Pub. L. 107-76
  • Pub. L. 109-234
  • 120 Stat. 474
  • 7 USC 1501-1524
Citation graph
cites case law
Notices
Notice of Order to Show Cause (Order 2007-12-11), Docket DOT-OST-2006-25577
U.S.C.§ 78s
U.S.C.§ 78f
U.S.C.§ 552
C.F.R.§ 200.30-3
U.S.C.§ 78c
U.S.C.§ 78k
U.S.C.§ 78k–1
U.S.C.§ 40102
U.S.C.§ 40109
SCOTUS426 U.S. 500
F. App'x29 F.3d 706
Cite17 CFR 240.19
Cites 66 · showing 12Cited by 0 across 0 sources
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