71258 Federal Register / Vol. 70, No. 227 / Monday, November 28, 2005 / Proposed Rules 

offer a completed Buy America 

certificate in accordance with §§ 661.6 

or 661.12 of this part, as appropriate. 

(1) A bidder or offeror who has 

submitted an incomplete Buy America 

certificate or an incorrect certificate of 

noncompliance through inadvertent or 

clerical error (but not including failure 

to sign the certificate, submission of 

certificates of both compliance and noncompliance, or failure to submit any 

certification), may submit to the FTA 

Chief Counsel within ten (10) days of 

bid opening of submission of a final 

offer, a written explanation of the 

circumstances surrounding the 

submission of the incomplete or 

incorrect certification in accordance 

with 28 U.S.C. 1746, sworn under 

penalty of perjury, stating that the 

submission resulted from inadvertent or 

clerical error. The bidder or offeror will 

also submit evidence of intent, such as 

information about the origin of the 

product, invoices, or other working 

documents. The bidder or offeror will 

simultaneously send a copy of this 

information to the FTA grantee. 

(i) The FTA Chief Counsel may 

request additional information from the 

bidder or offeror, if necessary. The 

grantee may not make a contract award 

until the FTA Chief Counsel issues his/ 

her determination, except as provided 

in § 661.15(m). 

(ii) [Reserved] 

(2) In the case of a negotiated 

procurement, a certification submitted 

as part of an initial proposal may be 

superseded by a subsequent 

certification(s) submitted with a revised 

proposal or offer. Compliance with the 

Buy America requirements shall be 

determined on the basis of the 

certification submitted with the final 

offer or final revised proposal. However, 

where a grantee awards on the basis of 

initial proposals without discussion, the 

certification submitted with the initial 

proposal will control. 

(c) Whether or not a bidder or offeror 

certifies that it will comply with the 

applicable requirement, such bidder or 

offeror is bound by its original 

certification (in the case of a sealed 

bidding procurement) or its certification 

submitted with its final offer (in the case 

of a negotiated procurement) and is not 

permitted to change its certification 

after bid opening or submission of a 

final offer. Where a bidder or offeror 

certifies that it will comply with the 

applicable Buy America requirements, 

the bidder, offeror, or grantee is not 

eligible for a waiver of those 

requirements, except as provided in 

section 661.7(c)(3) in the case of a postaward non-availability waiver. 

8. In § 661.15, revise paragraphs (a), 

(b), (d), and (g) to read as follows: 

§ 661.15 Investigation procedures. 

(a) It is presumed that a bidder or 

offeror who has submitted the required 

Buy America certificate is complying 

with the Buy America provision. A false 

certification is a criminal act in 

violation of 18 U.S.C. 1001. 

(b) Any party may petition FTA to 

investigate the compliance of a 

successful bidder or offeror with the 

bidder’s or offeror’s certification. That 

party (‘‘the petitioner’’) must include in 

the petition a statement of the grounds 

of the petition and any supporting 

documentation. If FTA determines that 

the information presented in the 

petition indicates that the presumption 

in paragraph (a) of this section has been 

overcome, FTA will initiate an 

investigation. 

* * * * * 

(d) When FTA determines under 

paragraph (b) or (c) of this section to 

conduct an investigation, it requests that 

the grantee require the successful bidder 

or offeror to document its compliance 

with its Buy America certificate. The 

successful bidder or offeror has the 

burden of proof to establish that it is in 

compliance. Documentation of 

compliance is based on the specific 

circumstances of each investigation, and 

FTA will specify the documentation 

required in each case. 

* * * * * 

(g) The grantee’s reply (or that of the 

bidder or offeror) will be transmitted to 

the petitioner. The petitioner may 

submit comments on the reply to FTA 

within 10 working days after receipt of 

the reply. The grantee and the low 

bidder or offeror will be furnished with 

a copy of the petitioner’s comments, and 

their comments must be received by 

FTA within 5 working days after receipt 

of the petitioner’s comments. 

* * * * * 

9. Revise § 661.17 to read as follows: 

§ 661.17 Failure to comply with 

certification. 

If a successful bidder or offeror fails 

to demonstrate that it is in compliance 

with its certification, it will be required 

to take the necessary steps in order to 

achieve compliance. If a bidder or 

offeror takes these necessary steps, it 

will not be allowed to change its 

original bid price or the price of its final 

offer. If a bidder or offeror does not take 

the necessary steps, it will not be 

awarded the contract if the contract has 

not yet been awarded, and it is in breach 

of contract if a contract has been 

awarded. 

10. Revise § 661.19 to read as follows: 

§ 661.19 Sanctions. 

A willful refusal to comply with a 

certification by a successful bidder or 

offeror may lead to the initiation of 

debarment or suspension proceedings 

under part 29 of this title. 

11. Revise § 661.20 to read as follows: 

§ 661.20 Rights of parties. 

(a) A party adversely affected by an 

FTA action under this subsection shall 

have the right to seek review under the 

Administrative Procedure Act (APA), 5 

U.S.C. section 702 et seq. 

(b) Except as provided in paragraph 

(a) of this section, the sole right of any 

third party under the Buy America 

provision is to petition FTA under the 

provisions of § 661.15 of this part. No 

third party has any additional right, at 

law or equity, for any remedy including, 

but not limited to, injunctions, damages, 

or cancellation of the Federal grant or 

contracts of the grantee. 

Issued in Washington, DC this 18th day of 

November, 2005. 

David B. Horner, 

Acting Deputy Administrator. 

[FR Doc. 05–23323 Filed 11–22–05; 11:43 

am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[I.D. 111505C] 

Fisheries off West Coast States and in 

the Western Pacific; Bottomfish 

Fisheries; Overfishing Determination 

on Bottomfish Multi-Species Stock 

Complex; Hawaiian Archipelago 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of intent to prepare a 

supplemental environmental impact 

statement; notice of scoping meetings; 

request for comment. 

SUMMARY: Pursuant to the National 

Environmental Policy Act (NEPA) and 

regulations published by the Council on 

Environmental Quality (40 CFR part 

1505), NMFS, in coordination with the 

Western Pacific Fishery Management 

Council (Council), is preparing a 

Supplemental Environmental Impact 

Statement (SEIS). The SEIS will 

supplement the Final Environmental 

Impact Statement (FEIS) Bottomfish and 

Seamount Groundfish Fishery of the 

Federal Register / Vol. 70, No. 227 / Monday, November 28, 2005 / Proposed Rules 71259 

Western Pacific Region. The SEIS will 

analyze a range of alternatives to end 

overfishing in the bottomfish species 

complex in the Hawaiian Archipelago. 

DATES: Public scoping meetings will be 

held: January 9, 2006, in Hilo, HI; 

January 10, 2006 in Kona, HI; January 

11, 2006, in Kahului, HI; January 12, 

2006 in Honolulu, HI; and January 13, 

2006 in Lihue, HI. See SUPPLEMENTARY

INFORMATION for specific times and 

locations of hearings. Comments on the 

issues, range of alternatives, and 

impacts that should be analyzed in the 

SEIS must be received by January 16, 

2006. 

ADDRESSES: Submit written comment or 

requests to be added to the mailing list 

for this SEIS to William L. Robinson, 

Regional Administrator, NMFS, Pacific 

Islands Region, 1601 Kapiolani Blvd., 

Suite 1110, Honolulu HI 96814; or to 

Kitty Simonds, Executive Director, 

Council, 1164 Bishop St. Suite 1400, 

Honolulu, HI 96813. Comments or 

requests may also be sent via facsimile 

(fax) to the Pacific Islands Regional 

Office at (808) 973–2941 or to the 

Council at (808) 522–8228. You may 

also submit comments via email at 

PirBottomfishNOI@noaa.gov or through 

the Federal eRulemaking Portal at 

http://www.regulations.gov. The 

Council’s scoping document on the 

overfishing determination for the 

bottomfish species complex in the 

Hawaiian Archipelago may also be 

obtained from the Council’s office at the 

address above or via the Internet at 

http://www.wpcouncil.org. 

FOR FURTHER INFORMATION CONTACT: 

William L. Robinson, Regional 

Administrator, NMFS, (808) 973–2937 

or Kitty Simonds, Executive Director, 

Council, (808) 522–8220. 

SUPPLEMENTARY INFORMATION: The 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) requires the 

Secretary of Commerce to report 

annually on the status of fisheries 

within each regional fishery 

management council’s geographical area 

of authority (16 U.S.C. 1854(e)(1)). 

According to the guidelines for National 

Standard 1 of the Magnuson-Stevens 

Act (50 CFR 600.310), fishery stock 

status is assessed with respect to two 

status determination criteria, one of 

which is used to determine whether a 

stock is overfished and the second of 

which is used to determine whether the 

stock is subject to overfishing. A stock 

is subject to overfishing if the fishing 

mortality rate exceeds the maximum 

fishing mortality threshold (MFMT) for 

one year. The MFMT for particular 

stocks are specified in fishery 

management plans. 

According to Amendment 6 

Supplement to the Fishery Management 

Plan for the Bottomfish and Seamount 

Groundfish Fisheries of the Western 

Pacific Region (Bottomfish FMP), 

effective July 3, 2003 (68 FR 46112, 

August 5, 2003), the MFMT for 

bottomfish stock complexes managed 

under the Bottomfish FMP would be 

exceeded if the fishing mortality rate 

exceeded the rate associated with 

maximum sustainable yield (MSY). The 

most recent assessment of the 

bottomfish species complex presented 

in Appendix 5 of the Bottomfish and 

Seamount Groundfish Fisheries of the 

Western Pacific Region 2003 Annual 

Report indicated that, based on data 

through 2002, fishing effort (proxy for 

fishing mortality) exceeded the rate 

associated with MSY. 

Appendix 5 in the 2003 Annual 

Report indicates that the main Hawaiian 

islands (MHI) is where the excessive 

fishing mortality problem occurs. The 

Northwestern Hawaiian Islands (NWHI) 

bottomfish fishery is managed under an 

Bottomfish FMP-authorized limited 

entry program, separated into two 

limited entry zones (Hoomalu and Mau). 

In 2004, nine vessels participated in the 

NWHI bottomfish fishery. In contrast, 

the MHI is an open access fishery 

regulated by the State of Hawaii with 

over 3,700 vessels registered with the 

State of Hawaii to fish for bottomfish. 

Therefore, it is likely that reducing 

fishing mortality in the MHI would be 

the most effective means to end 

overfishing in the Hawaiian 

Archipelago. 

On May 27, 2005, the Pacific Islands 

Regional Administrator, NMFS, notified 

the Council that NMFS had determined 

that the bottomfish species complex 

around the Hawaiian Archipelago to be 

in a state of overfishing (70 FR 34552, 

June 14, 2005). Section 304 (e) (3) of the 

Magnuson-Stevens Act states that 

‘‘[w]ithin one year of an identification 

[of overfishing] . . . the appropriate 

Council . . . shall prepare a fishery 

management plan, plan amendment, or 

proposed regulations for the fishery . . 

. to end overfishing in the fishery . . . 

. ’’

As required by the Magnuson-Stevens 

Act, the Council is required to prepare 

and submit to NMFS a fishery 

management plan amendment to end 

overfishing of the bottomfish complex 

around the Hawaiian Archipelago. 

Significant issues to be analyzed in 

the SEIS will include, but will not 

necessarily be limited to, effects on 

targeted species, bycatch, federally 

listed threatened and endangered 

species, Hawaii state fishery 

management policies, fishing for 

bottomfish in State waters, incidental 

catch of bottomfish species in other 

fisheries, and essential fish habitat. 

Other issues will be health and safety, 

water quality, environmental justice, 

cultural and socio-economic, and any 

other issues identified through scoping 

and public involvement. 

Alternatives that may be considered 

in detail in the SEIS are likely to 

include, but will not necessarily be 

limited to: 

Alternative 1: No Action: In 1998 the 

State of Hawaii created bottomfish 

closed areas to reduce effort in the MHI. 

The closure applied to seven deep water 

bottomfish species (onaga, ehu, gindai, 

kalekale, hapuupuu, opakapaka, and 

lehi) commonly targeted using deep 

handline gear. Since 1998 a consistent 

downward trend in effort has occurred 

in the bottomfish fishery in the MHI. 

This alternative continues to support 

those closed areas which extend into 

Federal waters. 

Alternative 2: Alternative 2 would 

overlay Federal closures on the State of 

Hawaii’s Restricted Fishing Areas in 

Federal waters. This action would 

provide for Federal enforcement of the 

closures in addition to current State of 

Hawaii’s enforcement. 

Alternative 3: This alternative would 

close the Federal waters around Penguin 

and Middle Banks to bottomfishing. 

This alternative would prohibit the 

targeting of, the landing of, and the sale 

of the seven deep slope bottomfish 

species identified in Alternative 1 from 

Penguin and Middle Banks. The closure 

would apply to all recreational and 

commercial vessels. 

Alternative 4: Alternative 4 would 

create a MHI bottomfish fishery seasonal 

closure. This alternative would prohibit 

the targeting of, the landing of, and the 

sale of the seven deep slope bottomfish 

species identified in Alternative 1 from 

the MHI. Closure would apply to all 

recreational and commercial vessels. 

Under this alternative, the federally 

permitted NWHI bottomfish fishery will 

remain open during MHI closures. 

Alternative 5: This alternative would 

establish total allowable catch for all 

commercial fishing boats in the MHI. 

Alternative 6: This alternative would 

establish individual fishing quotas for 

all commercial fishing boats in the MHI. 

Recreational vessels would continue to 

be subject to the catch limits established 

by the State of Hawaii. 

Alternative 7: This alternative 

combines the use of seasonal closures 

(Alternative 4) and individual fishing 

quotas (Alternative 6) for commercial 

vessels during the seasonal closure. 

71260 Federal Register / Vol. 70, No. 227 / Monday, November 28, 2005 / Proposed Rules 

Alternative 8: This alternative 

combines use of seasonal closures 

(Alternative 4) and a partial closure of 

Penguin Banks (Alternative 3). 

The public is invited to assist in 

developing the scope of alternatives to 

be analyzed, and to provide other 

relevant information on the subject of 

ending overfishing of this complex. 

Dates, Times, and Locations for Public 

Scoping Meetings 

1. Hilo, HI – Monday, January 9, 2006, 

from 6–9 p.m. at the University of 

Hawaii-Hilo Campus Center, 200 W. 

Kawili St., Hilo, Hawaii 96720; 

2. Kona, HI – Tuesday, January 10, 

2006, from 6–9 p.m. at the King 

Kamehameha Hotel, 75–5660 Palani 

Rd., Kona, HI 96740; 

3. Maui, HI – Wednesday, January 11, 

2006, from 6–9 p.m. at the Maui Beach 

Hotel, 170 Kaahumanu Ave., Kahului, 

HI 96732; 

4. Oahu, HI – Thursday, January 12, 

2006, from 6–9 p.m. at the Ala Moana 

Hotel, 410 Atkinson Dr., Honolulu, HI 

96815; 

5. Kauai, HI – Friday, January 13, 

2006, from 6–9 p.m. at Chiefess 

Kamakahelei Middle School, 4431 

Nuhou St., Lihue, HI 96766. 

To receive a copy of the Draft SEIS, 

please provide your name and address 

in writing to the point of contact 

identified in this notice. An electronic 

version of the Draft SEIS, when 

completed, will also be available by 

internet at the following sites: http:// 

swr.nmfs.noaa.gov/pir or at 

www.wpcouncil.org. or 

Special Accommodations 

These meetings are physically 

accessible to people with disabilities. 

Requests for sign language 

interpretation or other auxiliary aids 

should be directed to Kitty M. Simonds, 

808–522–8220 (voice) or 808–522–8226 

(fax), at least five days prior to the 

meeting date. 

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

Dated: November 21, 2005. 

Alan D. Risenhoover, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 05–23363 Filed 11–25–05; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[I.D. 112205A] 

Western Pacific Fishery Management 

Council; Public Meetings 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of public meeting and 

public hearings. 

SUMMARY: The Western Pacific Fishery 

Management Council (Council) will 

hold its 130th meeting to consider and 

take action on fishery ecosystem plans 

for the Western Pacific Region. The 

Council will also hold public hearings 

throughout Hawaii the week prior to its 

130th meeting, as well as during the 

130th meeting. 

DATES: The 130th Council meeting and 

the public hearings will be held 

December 20, 2005, and December 12–

15, 2005, respectively. For specific 

dates, times and locations of the public 

hearings, and the agenda for the 130th 

Council meeting, see SUPPLEMENTARY

INFORMATION. 

ADDRESSES: The 130th Council meeting 

will be held at the Council’s office, 1164 

Bishop Street, Suite 1400, Honolulu, HI 

96813. The 130th Council meeting 

telephone conference call-in-number is: 

(866)867–8289, passcode 1683776. For 

Guam and International Participants, 

the call-in-number is: (813)376–1442, 

passcode 1683776. 

The public hearings will held in Hilo, 

HI; Kailua-Kona, HI; Lihue, HI; Kahului, 

HI; and Honolulu, HI. For specific dates, 

times and locations, see SUPPLEMENTARY

INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

Kitty M. Simonds, Executive Director; 

telephone: (808)522–8220; FAX: 

(808)522–8226. 

SUPPLEMENTARY INFORMATION: 

Background Information 

The Western Pacific Fishery 

Management Council has recently 

initiated a shift towards ecosystem 

approaches to fisheries management by 

drafting place-based fishery ecosystem 

plans (FEPs)to amend and reorganize 

the existing species-based fishery 

management plans (FMPs). The draft 

FEPs include the: (a) American Samoa 

Archipelago FEP, (b) Hawaii 

Archipelago FEP, (c) Mariana 

Archipelago FEP, (d) Pacific Pelagic 

FEP, and e) Pacific Remote Island Areas 

FEP. 

Recognizing that implementation of a 

successful ecosystem approach to 

fisheries management will require 

incremental steps as well as broad 

public and governmental agency 

collaboration, these FEPs lay the 

institutional framework on which 

further fisheries ecosystem management 

measures will be built. Pending final 

action by the Council and the approval 

of the FEPs by the Secretary of 

Commerce, the current FMP regulations 

will be reorganized and consolidated 

into place-based regulations specific to 

each FEP area however, no substantive 

changes to current regulations will 

occur at this reorganization stage. 

In October and November 2005, 

public hearings on the draft FEPs were 

conducted throughout the Western 

Pacific Region in the following areas: 

Tutuila, AS; Saipan, CNMI; Tinian, 

CNMI; Rota, CNMI; Honolulu, HI; and 

Tumon Bay, GU. At the 129th Council 

meeting held November 8–11, 2005, in 

Tumon Bay, Guam, the Council 

recommended to tentatively adopt the 

draft FEPs and to consider final 

approval at the next Council meeting. 

130th Council Meeting Agenda 

Tuesday December 20, 2005, 12 noon 

Hawaii Standard Time 

1. Introductions 

2. Approval of Agenda 

3. Western Pacific Fishery Ecosystem 

Plans 

A. Final Action on FEP Objectives 

B. Final Action on FEP Boundaries 

C. Final Action FEP Management Unit 

Species designations 

D. Final Action on Structure of 

Council Advisory Bodies 

E. Final Action on Regional and 

International Coordination and 

Community Participation 

4. Public Hearing 

5. Council Discussion and Action 

6. Update on Hawaii Bottomfish 

Overfishing 

7. Other Business 

Dates, Times, and Locations of Public 

Hearings 

(1) Hilo, HI – Monday, December 12, 

2005, from 6–9 p.m. at the University of 

Hawaii-Hilo Campus Center, 200 W. 

Kawili St., Hilo, HI 96720; 

(2) Kailua-Kona, HI – Tuesday, 

December 13, 2005, from 6–9 p.m. at the 

King Kamehameha Hotel, 75–5660 

Palani Rd., Kona, HI 96740; 

(3) Kauai, HI – Wednesday, December 

14, 2005, from 6–9 p.m. at Chiefess 

Kamakahelei Middle School, 4431 

Nuhou St., Lihue, HI 96766.