        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        45 CFR Parts 80, 84, 86, 90, and 91
        RIN 0991-AB10
        Office for Civil Rights; Amending the Regulations Governing Nondiscrimination on the Basis of Race, Color, National Origin, Handicap, Sex, and Age to Conform to the Civil Rights Restoration Act of 1987

          ACTION:
          Proposed rule.

          SUMMARY:
          The Secretary proposes to amend the Department of Health and Human Services regulations implementing Title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975 to conform with certain statutory amendments made by the Civil Rights Restoration Act of 1987 (CRRA). The principal proposed conforming change is to amend the regulations to add definitions of “program or activity” or “program” that correspond to the statutory definitions enacted under the CRRA.

          DATES:
          Comments will be considered if we receive them at the appropriate address, as provided below, no later than 5 p.m. on November 27, 2000.

          ADDRESSES:
          Mail written comments or deliver them to the following address: Office for Civil Rights, Department of Health and Human Services, 200 Independence Avenue, SW., Room 509-F, Washington, DC 20201.

          FOR FURTHER INFORMATION CONTACT:
          Kathryn A. Ellis, (202) 619-0403; Kathleen O'Brien, (202) 619-2829; TDD 1-800-537-7697.

        SUPPLEMENTARY INFORMATION:

        The Department of Health and Human Services (Department or HHS) proposes to amend its civil rights regulations to conform to certain provisions of the Civil Rights Restoration Act of 1987 (Pub. L. 100-259) (CRRA), regarding the scope of coverage under civil rights statutes administered by the Department. These statutes include Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq. (Title VI), Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681, et seq. (Title IX), Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (Section 504), and the Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101, et seq. (Age Discrimination Act). Title VI prohibits discrimination on the basis of race, color, and national origin in all programs or activities that receive Federal financial assistance; Title IX prohibits discrimination on the basis of sex in education programs or activities that receive Federal financial assistance; section 504 prohibits discrimination on the basis of disability in all programs or activities that receive Federal financial assistance; and the Age Discrimination Act prohibits discrimination on the basis of age in all programs or activities that receive Federal financial assistance.
        The principal proposed conforming change is to amend each of these regulations to add a definition of “program or activity” or “program” that adopts the statutory definition of “program or activity” or “program” enacted as part of the CRRA. We believe that adding this statutory definition to the regulatory language is the best way to avoid confusion on the part of recipients, beneficiaries, and other interested parties about the scope of civil rights coverage.

        The Department's civil rights regulations, when originally issued and implemented, were interpreted by the Department to mean that acceptance of Federal assistance by an entity resulted in broad institutional coverage. In Grove City College v. Bell, 465 U.S. 555, 571-72 (1984) (Grove City College), the Supreme Court held, in a Title IX case, that the provision of Federal student financial assistance to a college resulted in Federal jurisdiction to ensure Title IX compliance in the specific program receiving the assistance, i.e., the student financial aid office, but that the Federal student financial assistance would not provide jurisdiction over the entire institution. Following the Supreme Court's decision in Grove City College, the Department changed its interpretation, but not the language, of the governing regulations to be consistent with the Court's restrictive, “program specific” definition of “program or activity” or “program”. Since Title IX was patterned after Title VI, Grove City College significantly narrowed the coverage of Title VI and two other statutes based on it: The Age Discrimination Act and Section 504. See S. Rep. No. 100-64, at 2-3, 11-16 (1987).

        Then, in 1988, the CRRA was enacted to “restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered.” 20 U.S.C. 1687 note 1. Congress enacted the CRRA in order to remedy what it perceived to be a serious narrowing by the Supreme Court of a longstanding administrative interpretation of the coverage of the regulations. At that time, the Department reinstated its broad interpretation to be consistent with the CRRA, again without changing the language of the regulations. It was and remains the Department's consistent interpretation that—with regard to the differences between the interpretation of the regulations given by the Supreme Court in Grove City College and the language of the CRRA—the CRRA, which took effect upon enactment, superseded the Grove City College decision and, therefore, the regulations must be read in conformity with the CRRA in all their applications.

        This interpretation reflects the understanding of Congress, as expressed in the legislative history of the CRRA, that the statutory definition of “program or activity” or “program” would take effect immediately, by its own force, without the need for Federal agencies to amend their existing regulations. S. Rep. No. 100-64, at 32. The legislative history also evidences congressional concern about the Department's immediate need to address complaints and findings of discrimination in federally assisted schools under the CRRA definition of “program or activity”, and includes examples demonstrating why the CRRA was “urgently” needed. See S. Rep. No. 100-64, at 11-16.

        The proposed regulatory change described in the previous paragraph would address an issue recently raised by the Third Circuit Court of Appeals in Cureton v. NCAA, 198 F.3d 107, 115-16 (1999) (Cureton). That court determined that, because the Department did not amend its Title VI regulation after the enactment of the CRRA, application of the Department's Title VI regulation to disparate impact discrimination claims is “program specific” (i.e., limited to specific programs in an institution affected by the Federal funds), rather than institution-wide (i.e., applicable to all of the operations of the institution regardless of the use of the Federal funds). In the court's view, the regulations should clarify the application of the broad institutional coverage to disparate impact claims, because the disparate impact analysis appears in regulation, and not in a statute. We disagree with the Cureton decision for the reasons described in this preamble. Nevertheless, the proposed regulatory changes would explicitly incorporate definitions of “program or activity” or “program” that correspond to those enacted under the CRRA and thereby remove any doubt that the regulations apply institution-wide to both disparate impact discrimination and disparate treatment discrimination. (“Disparate treatment” refers to policies or practices that treat individuals differently based on their race, color, national origin, sex, disability, or age, as applicable. Disparate treatment is generally barred by the civil rights statutes and regulations. “Disparate impact” refers to criteria or methods of administration that have a significant disparate effect on individuals based on race, color, national origin, sex, disability, or age, as applicable. Those criteria or practices may constitute impermissible discrimination based on legal standards that include consideration of their necessity.)
        The statutory definition, which is being incorporated into the regulations, addresses four broad categories of recipients: (1) State or local governmental entities; (2) Colleges, universities, other postsecondary educational institutions, public systems of higher education, local educational agencies, systems of vocational education, and other school systems; (3) Private entities, such as corporations, partnerships, and sole proprietorships, including those whose principal business is providing education, health care, housing, social services, or parks and recreation; and (4) Entities that are established by a combination of two or more of the first three types of entities.
        Under the first part of the definition, if State and local governmental entities receive financial assistance from the Department, the “program or activity” or “program” in which discrimination is prohibited includes all of the operations of any State or local department or agency to which the Federal assistance is extended. For example, if the Department provides financial assistance to a State health agency, all of the agency's operations are subject to the nondiscrimination requirements of the regulations. In addition, “program or activity” or “program” includes all of the operations of the entity of a State or local government that distributes the Federal assistance to another State or local governmental agency or department and all of the operations of the State or local governmental entity to which the financial assistance is extended.
        Under the second part of the definition of “program or activity” or “program”, if colleges, universities, other postsecondary institutions, public systems of higher education, local educational agencies, systems of vocational education, or other school systems receive financial assistance from the Department, all of their operations are subject to the nondiscrimination requirements of the regulations. For example, if a college or university receives Federal financial assistance from the Department to support medical research, all of the operations of the college or university are covered, not solely the operations of the component performing the medical research.
        Under the third part of the definition, in the case of private entities not already listed under the second part of the definition, if the Federally assisted entity or organization is principally engaged in the business of education, health care, housing, social services, or parks and recreation, then the entire corporation, partnership, or other private organization or sole proprietorship is the covered “program or activity” or “program”. For example, if a private hospital receives financial assistance from the Department, it will be covered on an institution-wide basis under this portion of the definition of “program or activity” or “program” because it is an entity principally engaged in the business of providing health care. All of its operations are covered by the nondiscrimination requirements of the regulations.
        Also under the third part of the definition, if a private entity is not principally engaged in the business of education, health care, housing, social services, or parks and recreation, and the Department extends financial assistance to the private entity “as a whole”, all of the private entity's operations at all of its locations would be covered. If the Department were to extend general assistance, that is, assistance that is not designated for a particular purpose, to this type of corporation or other private entity, that would be considered financial assistance to the private entity “as a whole”. In other instances in which the Department extends financial assistance to this type of entity, the coverage would be limited to the entire plant or other comparable geographically separate facility to which assistance is extended.
        Under the fourth part of the definition, if an entity of a type not already covered by one of the first three parts of the definition is established by two or more of the entities listed under the first three parts of the definition, then all of the operations of that new entity are covered.
        The proposed regulations also would modify or delete some existing sections of the Department regulations that have become superfluous following the CRRA enactment, to conform with the CRRA definitions of “program or activity” or “program.” This is consistent with the approach taken by other Federal agencies in the Title IX common rule NPRM, for example, in which it was noted that regulatory language in the Department of Education's Title IX regulations made superfluous by the enactment of the CRRA was omitted in that proposed rule (64 FR 58568, 58571). The Title IX, Title VI, and section 504 regulations of the Department of Education and HHS are substantially similar because both were derived from the original Department of Health, Education and Welfare regulation.

        The Department's Title IX regulations, promulgated in 1975, defined “recipient” as an entity “to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance.” 45 CFR 86.2(h). At that time, the words “or benefits from” were necessary to clarify that all of the operations of a university or other educational institution that receives Federal financial assistance—not just the particular programs receiving financial assistance—are covered by Title IX's nondiscrimination requirements. As previously discussed, this interpretation was rejected by the Supreme Court in 1984 in Grove City College, which held that Federal student financial aid established Title IX jurisdiction only over the financial aid program, not the entire institution. However, Congress' 1988 enactment of the CRRA counteracted this decision by defining “program or activity” and “program” to provide expressly that Title IX covers all educational programs of a recipient institution. Because of this statutory change, the words “or benefits from” are no longer necessary as a regulatory matter. For that reason, we propose to delete the words “or benefits from” and similar phrases from the Title IX regulation. We also propose to delete similar language from the Department's Section 504 and Age Discrimination Act regulations. These deletions do not affect the reach of Title IX, Section 504, or the Age Discrimination Act.

        The existing Title VI regulation of the Department of Health and Human Services, promulgated in 1964 by the Department of Health, Education, and Welfare in 29 FR 16298 and 29 FR 16988 and in 1965 in 30 FR 16988, include an assurance requirement for institutions in § 80.4(d)(2) that has created confusion with regard to the scope of “program or activity” and “program” under Title VI. One example is the previously referenced decision in Cureton. The current provision states, in part: The assurance “* * * shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is sought * * *”. 45 CFR 80.4(d)(2). This NPRM proposes to delete that portion of the assurance to avoid any further confusion. As previously stated, it was appropriate to apply the CRRA statutory definition of “program or activity” to the regulations. For the same reasons, portions of the illustrations in § 80.5(c) and (e) would be deleted, since they could create similar confusion. Specifically, current § 80.5(c) states that, with regard to prohibited discrimination in university graduate research, training, demonstration, or other grants, “the prohibition extends to the entire university unless it satisfies the responsible Department official that practices with respect to other parts or programs of the university will not interfere, directly or indirectly, with fulfillment of the assurance required with respect to the graduate school.” Similarly, current § 80.5(e) states: “In other construction grants the assurances required will be adapted to the nature of the activities to be conducted in the facilities for construction of which the grants have been authorized by Congress.” These proposed deletions would not affect the reach of Title VI.

        In addition, we are proposing conforming changes that delete references to “program” or “program or activity” in the existing regulations that refer to Federal Financial assistance or to specific activities of the recipient, or that conform the meaning to the broad definition in the CRRA and eliminate potential confusion in the use of these terms, and continue the longstanding Department interpretation of the statutes and regulations. These changes will ensure that there is no confusion as to the use of these terms in the regulations. For example, in the Title VI regulation § 80.2 refers to “Federal assisted programs and activities listed in Appendix A to this part.” Appendix A is a list of Federal financial assistance triggering coverage under the civil rights laws. “Federal assisted programs and activities” as used in § 80.2 clearly refers to Federal programs of assistance. We propose to delete “assisted programs and activities” in this subsection and substitute “financial assistance.” We are proposing comparable conforming changes in our Title VI, Section 504, Title IX and Age Discrimination Act regulations, including both the government-wide coordinating Age Discrimination Act regulation and the HHS-specific Age Discrimination Act regulation. For example, in some instances, we have proposed to delete “program” or “program or activity” and substitute “Federal financial assistance,” or “aids, benefits or services.” These substitutions are not intended to change the scope or substance of the regulations. They are intended only to remove any confusion that might result from the adoption of the proposed definitions of “program or activity” or “program”. In other instances, we have proposed to change “programs and activities” to “programs or activities” to conform the regulation to the phrase used in the CRRA—when it is used in the broad manner defined in the CRRA. We have not proposed to modify the term “activity” when it appears separately from the phrase “program or activity” and is used in a manner unrelated to the CRRA phrase “program or activity.” These proposed changes are not intended to change the scope or substance of the regulations, but to remove any confusion that might result from the proposed definitions.

        It is important to note that the proposed changes would not in any way alter the requirement of the CRRA that a proposed or effectuated fund termination be limited to the particular program or programs “or part thereof” that discriminates or, as appropriate, to all of the programs that are infected by the discriminatory practices. See S. Rep. No. 100-64, at 20 (“The [CRRA] defines ‘program’ in the same manner as ‘program or activity,’ and leaves intact the ‘or part thereof’ pinpointing language.”).

        We propose to replace the current definition of “program” in the Title VI regulation in 45 CFR 80.13 with the proposed definition of “program or activity” and “program”. We propose to add the definition of “program or activity” and “program” to the Title IX regulation in 45 CFR 86.2. We propose to add the definition of “program or activity” to the Section 504 regulation in 45 CFR 84.3, the government-wide Age Discrimination Act regulation in 45 CFR 90.4, and the HHS-specific Age Discrimination Act regulation in 45 CFR 91.4. Because, as previously explained, the proposed changes merely incorporate statutory language and do not alter the Department's consistent position that the regulations must be read in conformity with the CRRA, the Department views these changes as technical in nature. However, the Department is inviting public comment on the proposed changes, consistent with its policy of involving interested members of the public in its rulemaking process. Conforming changes to the nonregulatory guidance in Appendix B of part 80 and Appendix A of part 84 will be published in the Federal Register in a separate notice. Nothing in these proposed changes affects coverage under the Federal employment nondiscrimination statutes, including Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, and the Age Discrimination in Employment Act.
        Collection of Information Requirements
        This proposed rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995.
        Regulatory Impact Analysis

        We have examined the impacts of this proposed rule as required by Executive Order 12866, the Unfunded Mandates Reform Act of 1995, and the Regulatory Flexibility Act. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits, including potential economic, environmental, public health and safety effects, distributive impacts, and equity. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects of $100 million or more annually. We have determined that there probably will be no cost impacts because this regulatory action implements statutory amendments and longstanding Department policy. Recently the Third Circuit Court of Appeals interpreted existing regulations inconsistently with the language of the CRRA and our existing practices. The Department disagrees with that decision. However, these proposed regulations would clarify the Department's policy and practice in light of that decision, and would do that only a short time after the court decision, thereby ensuring continuity in that policy and practice and avoiding changes in the behavior of recipients within the Third Circuit that could occur if Federal civil rights jurisdiction were changed. Therefore, it is possible that there will be no costs associated with the proposed regulations. Since we believe that this proposed rule would have no significant effect on program expenditures, we do not consider this to be a major rule. Accordingly, we have not prepared an RIA.
        The Unfunded Mandates Reform Act of 1995 also requires that agencies perform an assessment of anticipated costs and benefits before proposing any rule that may result in expenditures, in any given year by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million. We are not preparing an analysis under this Act because this rule is not a major rule as defined at 5 U.S.C. 804(2), nor will it have a significant economic impact on the operations of a substantial number of small providers of health and human services. The proposed rule implements statutory amendments and longstanding Department policy.
        We have reviewed this proposed rule under the threshold criteria of Executive Order 13132, Federalism. We have determined that it does not significantly affect the rights, roles and responsibilities of States.
        In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

          List of Subjects
          45 CFR Part 80
          Civil rights, Discrimination.
          45 CFR Part 84
          Blind, Civil rights, Discrimination, Handicapped, Individuals with Disabilities.
          45 CFR Part 86
          Civil rights, Sex discrimination.
          45 CFR Parts 90 and 91
          Aged, Civil rights, discrimination.

          Dated: August 1, 2000.
          Thomas E. Perez,
          Director, Office for Civil Rights.
          Dated: August 2, 2000.
          Donna Shalala,
          Secretary.

        For the reasons discussed in the preamble, the Secretary proposes to amend parts 80, 84, 86, 90, and 91 of title 45 of the Code of Federal Regulations as follows:

          PART 80—NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
          1. The authority citation for part 80 continues to read as follows:

            Authority:
            Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1.

            § 80.2
            [Amended]
            2. Section 80.2 is amended by removing the words “program for which” and adding, in their place, “program to which” and removing the words “assisted programs and activities” and adding, in their place, “financial assistance”.

            § 80.3
            [Amended]
            3. Section 80.3(d) is amended by removing the words “the benefits of a program”, and adding, in their place, the word “benefits”.
            4. Section 80.4 is amended as follows—
            A. Removing the words “to carry out a program” in the first sentence of paragraph (a)(1);
            B. Removing the words “except a program” and adding, in their place, the words “except an application” in the first sentence of paragraph (a)(1);
            C. Removing the words “for each program” and the words “in the program” in the fifth sentence of paragraph (a)(1);
            D. Removing the words “State programs” and adding, in their place, the words “Federal financial assistance” in the heading of paragraph (b);
            E. Removing the words “to carry out a program involving” and adding, in their place, the word “for” in paragraph (b); and
            F. Revising paragraph (d)(2).
            The revision of paragraph (d)(2) reads as follows:

            § 80.4
            Assurances required.

            (d) * * *
            (2) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.

            5. Section 80.5 is amended as follows—
            A. Removing the words “under the program” in paragraph (a).
            B. Revising paragraph (c); and C. Removing the last sentence of paragraph (e).
            The revision of paragraph (c) reads as follows:

            § 80.5
            Illustrative application.

            (c) In a research, training, demonstration, or other grant to a university for activities to be conducted in a graduate school, discrimination in the admission and treatment of students in the graduate school is prohibited, and the prohibition extends to the entire university.

            § 80.6
            [Amended]
            6. Section 80.6(b) is amended by removing the words “of any program under” in the last sentence and adding, in their place, the word “in”.

            § 80.9
            [Amended]
            7. Section 80.9(e) is amended by removing the word “programs” in the first sentence and adding, in its place, the words “Federal statutes, authorities, or other means by which Federal financial assistance is extended”.
            8. Section 80.13 is amended by removing the words “for any program,” and “under any such program” in paragraph (i); removing the words “for the purpose of carrying out a program” in paragraph (j); and revising paragraph (g) and revising the authority citation following the section to read as follows:

            § 80.13
            Definitions.

            (g) The term program or activity and the term program means all of the operations of—
            (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (ii) The entity of such State or local government that distributes Federal financial assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
            (ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;

            (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—

            (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
            (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (4) Any other entity which is established by two or more of the entities described in paragraph (g)(1), (g)(2), or (g)(3) of this section; any part of which is extended Federal financial assistance.

              (Secs. 602, 606, Civil Rights Act of 1964, (42 U.S.C. 2000d-1, 2000d-4a))

            9. Appendix A to part 80 is amended by revising the heading of part 1 and the heading of part 2 to read as follows:
            Appendix A to Part 80—Federal Financial Assistance to Which These Regulations Apply
            Part 1—Assistance Other Than Continuing Assistance to States

            Part 2—Continuing Assistance to States

            10. The title of part 84 is revised to read as follows:

          PART 84—NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
          11. The authority citation for part 84 continues to read as follows:

            Authority:
            20 U.S.C. 1405; 29 U.S.C. 794; 42 U.S.C. 290dd-2; 21 U.S.C. 1174.

            § 84.2
            [Amended]
            12. Section 84.2 is amended by removing the word “each” the second time it appears and adding, in its place, the word “the”; and by removing the words “or benefits from”.
            13. Section 84.3 is amended by redesignating paragraphs (k) and (l) as paragraphs (l) and (m), respectively; and adding a new paragraph (k) and adding an authority citation following this section to read as follows:

            § 84.3
            Definitions.

            (k) Program or activity means all of the operations of—
            (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (ii) The entity of such State or local government that distributes Federal financial assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
            (ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
            (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
            (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
            (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (4) Any other entity which is established by two or more of the entities described in paragraph (k)(1), (2), or (3) of this section; any part of which is extended Federal financial assistance.

              (29 U.S.C. 794(b))

            § 84.4
            [Amended]
            14. Section 84.4 is amended by—
            A. Removing the words “or benefits from” in paragraphs (a) and (b)(5);
            B. Removing the words “programs or activities” whenever they appear in paragraph (b)(3), and adding, in their place, the words “aids, benefits, or services”;
            C. Removing the words “or benefiting from” in paragraph (b)(6); and
            D. In paragraph (c) removing the word “Programs” in the heading and adding, in its place, the words “Aids, benefits, or services”; removing the words “from the benefits of a program” and adding, in their place, the words “from aids, benefits, or services”, and removing the words “from a program” and adding, in their place, the words “from aids, benefits, or services”.

            §§ 84.4, 84.6, 84.12, 84.32, 84.33, 84.36
            [Amended]
            15. Remove the word “program” and add, in its place, the words “program or activity” in the following sections:
            A. Section 84.4(b)(1)(v);
            B. Section 84.4(b)(4);
            C. Section 84.6(a)(3), whenever it appears;
            D. Section 84.12(a), (c) introductory text, and (c)(1);
            E. Section 84.32;
            F. Section 84.33(a); and
            G. Section 84.36, in the first sentence.

            § 84.5
            [Amended]
            16. Section 84.5(a) is amended in the first sentence by removing the words “for a program or activity” and by removing the words “the program” and adding, in their place, the words “the program or activity”.

            § 84.8
            [Amended]
            17. Section 84.8(a) is amended by removing the words “programs and activities” in the second sentence and adding, in their place, the words “programs or activities”.

            § 84.11
            [Amended]
            18. Section 84.11 is amended by—
            A. Removing the words “programs assisted” and adding, in their place, the words “programs or activities assisted” in paragraph (a)(2);
            B. Removing the word “programs” and revising “apprenticeship” to read “apprenticeships” in the last sentence of paragraph (a)(4).
            C. Removing the word “programs” and adding the words “those that are” before “social or recreational” in paragraph (b)(8).

            Subpart C—Accessibility

          19. The heading of Subpart C is amended by removing the word “PROGRAM”.

            § 84.22
            [Amended]

            20. Section 84.22 is amended in paragraph (a) by removing the words “Program accessibility” in the heading and adding, in their place, the word “Accessibility” and by removing the words “each program or activity to which this part applies so that the program or activity, when viewed in its entirety,” in the first sentence and adding in their place, the words “its program or activity so that when each part is viewed in its entirety, it”; in paragraph (b) by removing the words “offer programs and activities to” in the last sentence and adding, in their place, the word “serve”; and in paragraph (e)(3) by removing the words “program accessibility” and adding, in their place, the words “full accessibility under paragraph (a)”.

            § 84.31
            [Amended]
            21. Section 84.31 is amended by removing the words “or benefit from” whenever they appear; and by removing the words “programs and activities” and adding, in their place, the words “programs or activities”.

            § 84.33
            [Amended]
            22. Section 84.33 is amended by—
            A. Removing the words “individualized education program” and adding, in their place, the words “Individualized Education Program” in paragraph (b)(2);
            B. Removing the words “in or refer such person to a program other than the one that it operates” and adding, in their place, the words “or refer such a person for aids, benefits, or services other than those that it operates or provides” in the first sentence of paragraph (b)(3);
            C. Removing the words “in or refers such person to a program not operated” in the second sentence of paragraph (c)(1), and adding, in their place, the words “or refers such person for aids, benefits, or services not operated or provided”;
            D. Removing the words “of the program” in the second sentence of paragraph (c)(1) and adding, in their place, the words “of the aids, benefits, or services”;
            E. Removing the words “in or refers such person to a program not operated” in paragraph (c)(2), and adding, in their place, the words “or refers such person for aids, benefits, or services not operated or provided”;
            F. Removing the words “from the program” in paragraph (c)(2), and adding, in their place, the words “from the aids, benefits, or services”;
            G. Removing the words “in the program” in paragraph (c)(2), and adding, in their place, the words “in the aids, benefits, or services”;
            H. Removing the words “If placement in a public or private residential program” and adding, in their place, the words “If a public or private residential placement” in paragraph (c)(3); and removing the words “the program”, and adding, in their place, the words “the placement”; and
            I. Removing the words “such a program” in the last sentence of paragraph (c)(4), and adding, in their place, the words “a free appropriate public education”.

            § 84.35
            [Amended]
            23. Section 84.35(a) is amended by removing the words “program shall” and adding, in their place, the words “program or activity shall” and by removing the word “a” before the word “regular” and by removing the word “program” before the word “and”.

            § 84.37
            [Amended]
            24. Section 84.37(c)(1) is amended by removing the words “programs and activities” in the first sentence and adding, in their place, the words “aids, benefits, or services”; and by removing the words “in these activities” in the last sentence.

            § 84.38
            [Amended]
            25. Section 84.38 is amended by—
            A. Removing the word “programs” in the section heading;
            B. Removing the words “operates a” and adding, in their place, the word “provides”;
            C. Removing the words “program or activity or an” after the word “care” and adding, in their place, the word “or”;
            D. Removing the words “ program or activity” after the word “education”;
            E. Removing the words “from the program or activity”;
            F. Revising the word “aid” to read “aids”; and
            G. Removing the words “under the program or activity”.

            § 84.39
            [Amended]
            26. Section 84.39 is amended by—
            A. Removing the word “programs” in the section heading;
            B. Removing the words “operates a” and adding, in their place, the word “provides” in paragraph (a);
            C. Removing the word “program” after the word “education” in paragraph (a);
            D. Removing the words “from such program” in paragraph (a);
            E. Removing the words “the recipient's program” in paragraph (a), and adding, in their place, the words “that recipient's program or activity”; and
            F. Removing the words “operates special education programs shall operate such programs” in paragraph (c), and adding, in their place, the words “provides special education shall do so”.

            § 84.41
            [Amended]
            27. Section 84.41 is amended by removing the words “programs and activities” whenever they appear in the section and adding, in their place, the words “programs or activities”; and by removing the words “or benefit from” whenever they appear in the section.

            § 84.43
            [Amended]
            28. Section 84.43 is amended by—
            A. Removing the words “program or activity” in paragraph (a) and adding, in their place, the words “aids, benefits, or services”; and
            B. Removing the words “programs and activities” in paragraph (d), and adding, in their place, the words “program or activity”.

            § 84.44
            [Amended]
            29. Section 84.44 is amended by—
            A. Removing the words “program of” in the second sentence of paragraph (a);
            B. Removing the words “in its program” in paragraph (c); and
            C. Removing the words “under the education program or activity operated by the recipient” in paragraph (d)(1).

            § 84.47
            [Amended]
            30. Section 84.47 is amended by removing the words “programs and activities” in paragraph (a)(1), and adding, in their place, the words “aids, benefits, or services”.

            § 84.51
            [Amended]
            31. Section 84.51 is amended by removing the words “or benefit from” whenever they appear in the section; and by removing the word “and” before the word “activities” and adding, in its place, the word “or”.

            § 84.54
            [Amended]
            32. Section 84.54 is amended by removing the words “operates or supervises a program or activity” and adding, in their place, the words “provides aids, benefits, or services”.

            § 84.55
            [Amended]
            33. Section 84.55 is amended by removing the word “programs” in paragraph (a) and adding in its place, the words “programs or activities”.

          PART 86—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
          34. The heading for part 86 is revised to read as set forth above.
          35. Section 86.2 is amended by—
          A. Redesignating paragraphs (h) through (r) as paragraphs (i) through (s), respectively;
          B. Adding a new paragraph (h) and revising the authority citation following the section; and
          C. Revising newly redesignated paragraph (i) to remove the words “or benefits from”.
          New paragraph (h) reads as follows:

            § 86.2
            Definitions

            (h) Program or activity and program means all of the operations of—

            (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (ii) The entity of such a State or local government that distributes Federal financial assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
            (ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
            (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
            (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
            (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (4) Any other entity which is established by two or more of the entities described in paragraph (h)(1), (2), or (3) of this section; any part of which is extended Federal financial assistance.

              (Secs. 901, 902, 908, Education Amendments of 1972, 20 U.S.C. 1681, 1682, 1687)

            § 86.4
            [Amended]
            36. Section 86.4 is amended by removing the word “each” and adding, in its place, the word “the” in the first sentence of paragraph (a).

            § 86.6
            [Amended]
            37. Section 86.6 is amended by removing the words “or benefits from” in paragraph (c).

            § 86.11
            [Amended]
            38. Section 86.11 is amended by removing the word “each” and adding, in its place, the word “the”; and by removing the words “or benefits from”.
            39. The titles of Subparts D and E are amended by removing the word “and” and adding, in its place, the word “or”.

            § 86.31
            [Amended]
            40. Section 86.31 is amended by—
            A. Removing the word “and” in the section heading, and adding, in its place, the word “or”;
            B. Removing the words “or benefits from” in the first sentence of paragraph (a); and
            C. Removing the words “Programs not operated” in the heading of paragraph (d), and adding, in their place, the words “Aid, benefits, or services not provided”.

            § 86.40
            [Amended]
            41. Section 86.40 is amended by removing the words “in the normal education program or activity” in paragraph (b)(2); and by removing the words “instructional program in the separate program” in paragraph (b)(3) and adding, in their place, the words “separate portion”.
            42. Section 86.51 is amended by removing the words “or benefits from” in paragraph (a)(1).

          PART 90—NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
          43. The authority citation for part 90 is revised to read as follows:

            Authority:

            Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq.

            § 90.1
            [Amended]
            44. Section 90.1 is amended by removing the words “programs and activities” in the last sentence and adding, in their place, the words “programs or activities”.

            § 90.3
            [Amended]
            45. Section 90.3 is amended by removing the word “and” in the section heading and adding, in its place, the word “or”.
            46. Section 90.4 is amended by adding in alphabetical order a new definition of “Program or activity” and adding an authority citation following the section to read as follows:

            § 90.4
            How are the terms in these regulations defined?

              Program or activity means all of the operations of—(a)(1) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (2) The entity of such State or local government that distributes Federal financial assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (b)(1) A college, university, or other postsecondary institution, or a public system of higher education; or
            (2) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
            (c)(1) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
            (i) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
            (2) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (d) Any other entity which is established by two or more of the entities described in paragraph (a), (b), or (c) of this definition; any part of which is extended Federal financial assistance.

              (42 U.S.C. 6107)

            § 90.34
            [Amended]
            47. Section 90.34 is amended by removing the word “programs” and adding, in its place, the words “programs or activities” whenever they appear in the section.

            § 90.42
            [Amended]
            48. Section 90.42 is amended by removing the words “programs and activities” in the first sentence of paragraph (a) and adding, in their place, the words “programs or activities”.

            § 90.43
            [Amended]
            49. Section 90.43 is amended by removing the word “program” in the last sentence of paragraph (c)(4).

            § 90.47
            [Amended]
            50. Section 90.47 is amended by removing the word “Federal” in the first sentence of paragraph (c)(2).

            § 90.48
            [Amended]
            51. Section 90.48 is amended by removing the words “program or activity” in the last sentence and adding, in their place, the words “Federal financial assistance”.

            § 90.49
            [Amended]

            52. Section 90.49 is amended by removing the word “program” whenever it appears in paragraph (c) and adding, in its place, the words “program or activity”.

          PART 91—NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM HHS
          53. The heading for part 91 is revised to read as set forth above.
          54. The authority citation for part 91 continues to read as follows:

            Authority:

            Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq. (45 CFR part 90).

            § 91.1
            [Amended]
            55. Section 91.1 is amended by removing the words “programs and activities” in the last sentence and adding, in their place, the words “programs or activities”.

            § 91.2
            [Amended]
            56. Section 91.2 is amended by removing the words “programs and activities” in the last sentence and adding, in their place, the words “programs or activities”.

            § 91.3
            [Amended]
            57. Section 91.3 is amended by removing the word “programs” in the section heading and adding, in its place, the words “programs or activities”; and removing the words “or benefits from” in paragraph (a).
            58. Section 91.4 is amended by adding in alphabetical order a new definition of “Program or activity” and adding an authority citation following the section to read as follows:

            § 91.4
            Definition of terms used in these regulations

              Program or activity means all of the operations of—
            (a)(1) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (2) The entity of such State or local government that distributes Federal financial assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (b)(1) A college, university, or other postsecondary institution, or a public system of higher education; or
            (2) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
            (c)(1) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
            (i) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
            (2) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (d) Any other entity which is established by two or more of the entities described in paragraph (a), (b), or (c) of this definition; any part of which is extended Federal financial assistance.

            (Authority: 42 U.S.C. 6107)

            § 91.17
            [Amended]
            59. Section 91.17 is amended by removing the word “program” whenever it appears and adding, in its place, the words “program or activity”.

            § 91.18
            [Amended]
            60. Section 91.18 is amended by removing the word “program” and adding, in its place, the words “program or activity”.

            § 91.31
            [Amended]
            61. Section 91.31 is amended by removing the words “programs and activities” in the first sentence and adding, in their place, the words “programs or activities”.

            § 91.32
            [Amended]
            62. Section 91.32 is amended by removing the word “program” in paragraph (b).

            § 91.44
            [Amended]
            63. Section 91.44 is amended by removing the word “program” in paragraph (a)(2).

            § 91.46
            [Amended]
            64. Section 91.46 is amended by removing the words “program and activity” in the first sentence of paragraph (b) and adding, in their place, the words “program or activity”; and by removing the word “Federal” in the first sentence of paragraph (c)(2).

            § 91.49
            [Amended]
            65. Section 91.49 is amended by removing the words “program or activity” in paragraph (b)(2) and adding, in their place, the words “Federal financial assistance”.

      [FR Doc. 00-27306 Filed 10-25-00; 8:45 am]
      BILLING CODE 4153-01-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 70
        [IA 0146-1146; FRL-7128-5]
        Approval of Operating Permit Program; State of Iowa

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve amendments to the Iowa Title V operating permit program. EPA granted full approval of Iowa's Title V program on July 14, 1997. These amendments incorporate existing periodic monitoring guidance and adopt by reference compliance assurance monitoring requirements.

          DATES:
          Comments must be received on or before February 11, 2002.

          ADDRESSES:
          Written comments should be mailed to Lynn M. Slugantz, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
          Copies of documents relative to this action are available for public inspection during normal business hours at the above-listed Region 7 location. Interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

          FOR FURTHER INFORMATION CONTACT:
          Lynn M. Slugantz at (913) 551-7883.

        SUPPLEMENTARY INFORMATION:
        Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

          What is the Part 70 operating permit program?
          What is the Federal approval process for an operating permit program?
          What does Federal approval of a state operating permit program mean to me?
          What is being addressed in this document?
          Have the requirements for approval of an operating permit program revision been met?
          What action is EPA taking?

        What Is the Part 70 Operating Permit Program?
        The Clean Air Act (CAA) Amendments of 1990 require all states to develop an operating permit program that meets certain Federal criteria listed in 40 Code of Federal Regulations (CFR) part 70. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the Part 70 operating permit program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

        Sources required to obtain an operating permit under this program include: “major” sources of air pollution and certain other sources specified in the CAA or in our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or particulate matter that is 10 micrometers in size (PM10); those that emit 10 tons per year of any single hazardous air pollutant (HAP) (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of HAPs.
        Revisions to the state and local agencies' operating permit program are subject to public notice, comment, and our approval.
        What Is the Federal Approval Process for an Operating Permit Program?
        In order for state regulations to be incorporated into the Federally enforceable Title V operating permit program, states must formally adopt the regulations consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
        Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the operating permit program. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
        All state regulations and supporting information approved by EPA under section 502 of the CAA are incorporated into the Federally approved operating permit program. Records of such actions are maintained in the CFR at Title 40, Part 70, Appendix A, entitled “Approval Status of State and Local Operating Permits Program.”
        What Does Federal Approval of an Operating Permit Program Mean to Me?
        Enforcement of the state regulation before and after it is incorporated into the Federally approved operating permit program is primarily a state responsibility. However, after the state program is Federally approved, we oversee the program and review proposed permits submitted by the state in accordance with 40 CFR part 70. We are also authorized to enforce the permit program and individual permits issued under the program. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
        What Is Being Addressed in This Document?
        The Iowa Department of Natural Resources (IDNR) has adopted amendments to 567 Iowa Administrative Code (IAC) 22.108(3). The purpose of the amendments is to incorporate IDNR's existing Title V Periodic Monitoring Guidance into its rules. Periodic monitoring is required by 40 CFR 70.6 and 71.6 where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring. Also, the amendments to 567 IAC 22.108(3) adopt by reference Compliance Assurance Monitoring (CAM) that is required to be included in 40 CFR part 70 or 71 operating permits for major stationary sources of air pollution that are required to obtain operating permits under Title V of the CAA. Periodic monitoring and CAM are needed to provide reasonable assurance of compliance with applicable requirements under the CAA. The amendments were adopted and filed by the Environmental Protection Commission on June 21, 2001; published on July 11, 2001; and became effective on August 15, 2001.

        As a part of our review of these amendments, EPA requested clarification from IDNR regarding the list of factors to be considered in evaluating the type of periodic monitoring appropriate for an applicable requirement, as set forth in the narrative of the June 18, 2001, Periodic Monitoring Guidance. This narrative lists numerous factors to be considered, while Attachment 1 to that guidance contains a decision matrix considering only type of source and whether the source is controlled or uncontrolled. In response to EPA's request, IDNR sent EPA a November 7, 2001, letter in which the state clarified that it has flexibility in deciding to follow the matrix which is found in Appendix A to that guidance or to make a case-by-case determination that differs from the periodic monitoring guidance and the matrixes.
        EPA believes that the state's ability to deviate from the guidance on a case-by-case basis is essential to implementation of this program, and our proposed approval of the state program revisions is based, in part, on the state's assurance that it retains authority to establish appropriate periodic monitoring on a case-by-case basis. In proposing to approve this rule revision, EPA reserves its authority to object to permit provisions regarding periodic monitoring if they do not meet the requirements of the CAA or 40 CFR 70.6(a)(3).
        Have the Requirements for Approval of a Revision to the Operating Permit Program Been Met?
        Our review of the material submitted indicates the state has amended rules for the Title V program in accordance with the requirements of section 502 of the CAA and the Federal rule, 40 CFR part 70, and met the requirement for a program revision as established in 40 CFR 70.4(i).
        What Action Is EPA Taking?
        EPA is proposing to approve amendments to Iowa rule, 567 IAC 22.108(3), effective August 15, 2001, as supplemented on November 7, 2001, as a revision to the Iowa Title V operating permit program.
        Administrative Requirements

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this proposed rule would approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
        This proposal also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This proposal would merely approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposal also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

        In reviewing Title V operating permit program submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove an operating permit program submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program submission, to use VCS in place of an operating permit program submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposal would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects In 40 CFR Part 70
          Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

          Dated: January 2, 2002.
          William Rice,
          Acting Regional Administrator, Region 7.

      [FR Doc. 02-757 Filed 1-10-02; 8:45 am]
      BILLING CODE 6560-50-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R03-OAR-2008-0189; FRL-8576-5]
        Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Section 110(a)(1) 8-Hour Ozone Maintenance Plan and 2002 Base-Year Inventory for the Schuylkill County Area

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) submitted a SIP revision consisting of a maintenance plan that provides for continued attainment of the 8-hour ozone national ambient air quality standard (NAAQS) for at least 10 years after the April 30, 2004 designations, as well as a 2002 base-year inventory for the Schuylkill County Area. EPA is proposing approval of the maintenance plan and the 2002 base-year inventory in accordance with the requirements of the Clean Air Act (CAA).

          DATES:
          Written comments must be received on or before July 7, 2008.

          ADDRESSES:
          Submit your comments, identified by Docket ID Number EPA-R03-OAR-2008-0189 by one of the following methods:
          A. http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          B. E-mail: fernandez.cristina@epa.gov.

          C. Mail: EPA-R03-OAR-2008-0097, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
          D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2008-0189. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

          FOR FURTHER INFORMATION CONTACT:
          Melissa Linden, (215) 814-2096, or by e-mail at linden.melissa@epa.gov.

        SUPPLEMENTARY INFORMATION:
        On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Schuylkill County Area.
        I. Background
        Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS.

        On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include: (1) An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds (VOCs) and nitrogen oxides (NOX) for a 10-year maintenance period, from a base-year chosen by the state; (2) a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004); (3) an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard; (4) a contingency plan, that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible; (5) a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan.
        II. Summary of SIP Revision
        The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Schuylkill County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA.

          Attainment Emission Inventory: An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NOX, using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NOX, and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NOX emissions inventories for the Schuylkill County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NOX (e.g., “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”).

        Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004 designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NOX emissions reduction summary for 2002, 2009, and 2018.

          Table 1.—VOC Emissions Summary: 2002, 2009 and 2018
          [tons per summer day]

            Major source category
            2002
            2009
            2018

            Stationary Point Sources
            1.16
            0.92
            1.09

            Stationary Area Sources
            7.74
            7.19
            7.56

            Highway Vehicles
            9.02
            4.89
            2.73

            Nonroad Sources
            2.59
            2.38
            1.86

            Total
            20.51
            15.38
            13.24

          Table 2.—NOX Emissions Summary: 2002, 2009 and 2018
          [tons per summer day]

            Major source category
            2002
            2009
            2018

            Stationary Point Sources
            3.62
            4.42
            4.37

            Stationary Area Sources
            0.86
            0.92
            0.94

            Highway Vehicles
            16.71
            9.00
            3.80

            Nonroad Sources
            2.42
            1.85
            1.11

            Total
            23.61
            16.19
            10.22

        EPA believes Pennsylvania has demonstrated that the VOCs and NOX emissions in the Schuylkill County Area will improve due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state-adopted measures.

          Maintenance demonstration: As Tables 1 and 2 indicate, the Schuylkill County Attainment Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that future emissions of VOCs and NOX remain at or below the 2002 base-year emissions levels through the year 2018.
        Based upon the comparison of the projected emissions and the 2002 base-year inventory emissions, along federal and state measures, EPA concludes that PADEP successfully demonstrates that the 8-hour ozone standard will be maintained in the Schuylkill County Area. Further details of Schuylkill County Attainment Area's 8-hour ozone maintenance demonstration can be found in a Technical Support Document (TSD) prepared for this rulemaking.

          Ambient Air Quality Monitoring: With regard to the ambient air monitoring component of the maintenance plan, Pennsylvania commits to continue operating its current air quality monitoring stations in accordance with 40 CFR Part 58, to verify the attainment status of the area, with no reductions in the number of sites from those in the existing network unless pre-approved by EPA.

          Contingency Plan: Section 110(a)(1) of the CAA requires that the state develop a contingency plan which will ensure that any violation of a NAAQS is promptly corrected. The purpose of the contingency plan is to adopt measures, outlined in the maintenance plan, in order to assure continued attainment in the event of a violation of the 8-hour ozone NAAQS. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s).
        Since the Schuylkill County Area does not have a monitor, contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentrations at the design monitor for the Reading Area are above 84 parts per billion (ppb). If this trigger point occurs, PADEP will evaluate whether additional local emission control measures should be implemented in Schuylkill County in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of federal, state, and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing the contingency measures outlined in their maintenance plan.

          Verification of continued attainment: PADEP will track the attainment status of the 8-hour ozone NAAQS for Schuylkill County by reviewing air quality at the design monitor for the Reading Area and emissions data during the maintenance period. An annual evaluation of vehicle miles traveled and emissions reported from stationary sources will be performed and compared to the assumptions about the factors used in the maintenance plan. PADEP will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, Subpart A) for any unanticipated increases. Based on these evaluations, PADEP will consider whether any further emission control measures should be implemented.
        III. Proposed Action
        EPA is proposing to approve the maintenance plan and the 2002 base-year inventory for the Schuylkill County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan and 2002 base-year inventory for the Schuylkill County Area because it meets the requirements of section 110(a)(1) of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
        IV. Statutory and Executive Order Reviews
        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

        • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
        • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        In addition, this proposed rule to approve the maintenance plan and the 2002 base-year inventory for the Schuylkill County Area in the Commonwealth of Pennsylvania does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

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

          Dated: May 28, 2008.
          William T. Wisniewski,
          Acting Regional Administrator, Region III.

      [FR Doc. E8-12601 Filed 6-4-08; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 180320301-8301-01]
        RIN 0648-XG121
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS proposes to implement annual management measures and catch limits for the northern subpopulation of Pacific sardine (hereafter, Pacific sardine), for the fishing year from July 1, 2018, through June 30, 2019. The proposed action would prohibit directed commercial fishing for Pacific sardine off the coasts of Washington, Oregon, and California, except in the live bait, tribal, or minor directed fisheries, or as incidental catch in other fisheries. The incidental harvest of Pacific sardine would initially be limited to 40-percent by weight of all fish per trip when caught with other CPS or up to 2 metric tons (mt) when caught with non-CPS. The proposed annual catch limit (ACL) for the 2018-2019 Pacific sardine fishing year is 7,000 mt. This proposed rule is intended to conserve and manage the Pacific sardine stock off the U.S. West Coast.

          DATES:
          Comments must be received by June 11, 2018.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2018-0044, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0044, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 501 W Ocean Blvd., Ste. 4200, Long Beach, CA 90802-4250; Attn: Joshua Lindsay.
          • Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Copies of the report “Assessment of Pacific Sardine Resource in 2018 for U.S.A. Management in 2017-2018” are available http://www.pcouncil.org/wp-content/uploads/2017/03/G5a_Stock_Assessment_Rpt_Full_ElectricOnly_Apr2017BB.pdf, and may be obtained from the West Coast Region (see ADDRESSES).

          FOR FURTHER INFORMATION CONTACT:
          Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034, joshua.lindsay@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its implementing regulations require NMFS to set annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the harvest guideline (HG) control rule, which, in conjunction with the overfishing limit (OFL) and acceptable biological catch (ABC) rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq.

        During public meetings each year, the Southwest Fishery Science Center (SWFSC) presents the estimated biomass for Pacific sardine to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC). The Team, Subpanel and SSC review the biomass and the status of the fishery, and make applicable catch limit and additional management measure recommendations. Following Council review and public comment, the Council adopts a biomass estimate and makes its catch limit and any in-season accountability measure recommendations to NMFS. Annual specifications published in the Federal Register establish these catch limits and management measures for each Pacific sardine fishing year. This rule proposes the Council's recommended catch limits for the 2018-2019 fishing year, as well as management measures to ensure that harvest does not exceed those limits, and adoption of an OFL and ABC that is established after taking into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine.
        According to the FMP, the quota for the principal commercial fishery is determined using the FMP-specified HG formula. The HG formula in the CPS FMP is HG = [(Biomass-CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:
        1. Biomass. The estimated stock biomass of Pacific sardine age one and above. For the 2018-2019 management season, this is 52,065 mt.
        2. CUTOFF. This is the biomass level below which no HG is set. The FMP established this level at 150,000 mt.
        3. DISTRIBUTION. The average portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent.
        4. FRACTION. The temperature-varying harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.
        As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery quota, includes a CUTOFF parameter, which has been set as a biomass level of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Since this year's biomass estimate is below that value, the formula results in an HG of zero, and no Pacific sardine are available for the primary commercial directed fishery during the 2018-2019 fishing season.

        At the April 2018 Council meeting, the Council's SSC approved, and the Council adopted, the SWFSC's “Assessment of the Pacific Sardine Resource in 2018 for U.S. Management in 2018-2019”, available here: http://www.pcouncil.org/wp-content/uploads/2017/03/G5a_Stock_Assessment_Rpt_Full_ElectricOnly_Apr2017BB.pdf. The resulting Pacific sardine biomass estimate of 52,065 mt was adopted as the best available science for setting harvest specifications. Based on recommendations from its SSC and other advisory bodies, the Council recommended, and NMFS is proposing, an OFL of 11,324 mt, an ABC of 9,436 mt, and a prohibition on Pacific sardine catch, unless it is harvested as part of the live bait, tribal, or minor directed fisheries, or as incidental catch in other fisheries. As an additional management measure, the Council also recommended, and NMFS is proposing, an ACL of 7,000 mt.
        Because Pacific sardine is known to school with other CPS stocks, the Council recommended, and NMFS is proposing, incidental catch limits to allow for the continued prosecution of these other important CPS fisheries. Furthermore, the Council recommended, and NMFS is proposing, the following automatic inseason actions to reduce the potential for both targeting and discard of Pacific sardine in these fisheries:
        • An incidental per landing by weight allowance of 40 percent Pacific sardine in non-treaty CPS fisheries until a total of 2,500 mt of Pacific sardine has been landed; and
        • A reduction of the incidental per landing allowance to 20 percent for the remainder of the 2018-2019 fishing year once 2,500 mt Pacific sardine has been landed.

        Additionally, the Council recommended, and NMFS is proposing, a 2-mt incidental per landing allowance in non-CPS fisheries.

        The NMFS West Coast Regional Administrator would publish a notice in the Federal Register to announce when catch reaches the incidental limits as well as any changes to allowable incidental catch percentages. Additionally, to ensure that the regulated community is informed of any closure, NMFS would make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.
        In each of the previous six fishing years, the Quinault Indian Nation requested, and NMFS approved, a set-aside for the exclusive right to harvest Pacific sardine in the Quinault Usual and Accustomed Fishing Area off the coast of Washington State, pursuant to the 1856 Treaty of Olympia (Treaty with the Quinault). For the 2018-2019 fishing year, the Quinault Indian Nation has requested, and NMFS is proposing, a tribal set-aside of 800 mt. This is the same amount that was requested and approved for the 2017-2018 season.
        At the April 2018 meeting, the Council also voted in support of two exempted fishing permit (EFP) proposals requesting an exemption from the prohibition to directly harvest Pacific sardine. This action accounts for the potential of NMFS approval of up to 610 mt of the ACL to be harvested for EFP activities.

        Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2018 for U.S. Management in 2018-2019” (see ADDRESSES).
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with the tribal representative on the Council who has agreed with the provisions that apply to tribal vessels.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:
        For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

        The purpose of this proposed rule is to conserve the Pacific sardine stock by preventing overfishing, so that directed fishing may occur in future years. This will be accomplished by implementing the 2018-2019 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The small entities that would be affected by the proposed action are the vessels that would be expected to harvest Pacific sardine as part of the West Coast CPS small purse seine fleet if the fishery were open. In 2014, the last year that a directed fishery for Pacific sardine was allowed, there were approximately 81 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast; 58 vessels in the Federal CPS limited entry fishery off California (south of 39° N lat.); and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2014 for those vessels was well below the threshold level of $11 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule is considered to equally affect all of these small entities in the same manner. Therefore, this rule would not create disproportionate costs between small and large vessels/businesses.
        The CPS FMP and its implementing regulations require NMFS to annually set an OFL, ABC, ACL, and HG or annual catch target (ACT) for the Pacific sardine fishery based on the specified harvest control rules in the FMP applied to the current stock biomass estimate for that year. The derived annual HG is the level typically used to manage the principal commercial sardine fishery and is the harvest level NMFS typically uses for profitability analysis each year. As stated above, the CPS FMP dictates that when the estimated biomass drops below a certain level (150,000 mt) there is no HG. Therefore, for the purposes of profitability analysis, this action is essentially proposing an HG of zero for the 2018-2019 Pacific sardine fishing season (July 1, 2018, through June 30, 2019). The estimated biomass used for management during the preceding fishing year (2017-2018) was also below 150,000 mt. Therefore, NMFS did not implement a HG for the 2017-2018 fishing year, thereby prohibiting the primary commercial directed Pacific sardine fishery. Since there is again no directed fishing for the 2018-2019 fishing year, this proposed rule will not change the potential profitability as compared to the previous fishing year.
        The revenue derived from harvesting Pacific sardine is typically only one of the sources of fishing revenue for the commercial vessels that participate in this fishery. As a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS/sardine vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, mackerel, and in particular, squid, making Pacific sardine only one component of a multi-species CPS fishery. Additionally, some sardine vessels that operate off of Oregon and Washington also fish for salmon in Alaska or squid in California during times of the year when sardine are not available. The purpose of the incidental catch limits proposed in this action are to ensure the vessels impacted by a prohibition on directly harvesting sardine can still access these other profitable fisheries while still minimizing Pacific sardine harvest. These proposed incidental allowances are similar to those implemented last year and should not restrict access to those other fisheries.
        CPS vessels typically rely on multiple species for profitability because abundance of Pacific sardine, like the other CPS stocks, is highly associated with ocean conditions and seasonality. Variability in ocean conditions and season results in variability in the timing and location of CPS harvest throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time. Therefore, as abundance levels and markets fluctuate, the CPS fishery as a whole has relied on a group of species for its annual revenues.
        Therefore the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
        This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.

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

          Dated: May 21, 2018.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2018-11208 Filed 5-24-18; 8:45 am]
       BILLING CODE 3510-22-P