        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 000627195-0195-01; I.D. 060500C]
        RIN: 0648-AN94
        Fisheries of the Exclusive Economic Zone Off Alaska; Seasonal Adjustment of Closure Areas to Trawl Gear in the Central Regulatory Area of the Gulf of Alaska

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes a regulatory amendment to implement a seasonal closure of a portion of the Central Regulatory Area of the Gulf of Alaska (GOA) to vessels using trawl gear. Regulatory authority also is proposed for inseason action to open directed fishing for pollock within 10 nautical miles (nm) of the Steller sea lion haulouts located at Gull Point and Cape Barnabas for research purposes. These actions are necessary to support NMFS-sponsored research on the effect of fishing on localized pollock distribution and abundance. The proposed regulatory amendment is intended to meet the objectives in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and further the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).

          DATES:
          Comments on the proposed rule must be received by July 18, 2000.

          ADDRESSES:
          Comments may be mailed to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel. Hand delivery or courier delivery of comments may be sent to the Federal Building, 709 West 9th St., Room 453, Juneau, AK 99801. Comments will not be accepted if submitted via e-mail or Internet. Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action are available from NMFS at the listed address, or by calling the Alaska Region, NMFS, at (907) 586-7228.

          FOR FURTHER INFORMATION CONTACT:
          Thomas Pearson, (907) 481-1780, fax (907) 481-1781, or tom.pearson@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        NMFS manages the domestic groundfish fisheries of the GOA under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Act. Regulations governing the groundfish fisheries of the GOA appear at 50 CFR parts 600 and 679.

        This proposed regulatory action would impose a ban on all trawl fishing in the Chiniak Gully region on the east side of Kodiak Island and authorize a temporary reopening of the 10-nm zones around Gull Point and Cape Barnabas to directed fishing for pollock. These fishing restrictions would be in effect annually during the period of August 1st to no later than September 20 in the years 2000-2003. These restrictions are necessary to support NMFS research designed to identify and quantify the effects of commercial fishing on the availability of pollock to foraging Steller sea lions within a finite area. This research is intended to help assess the effectiveness and efficiency of alternative management methods for ensuring that pollock fisheries off Alaska neither jeopardize the continued existence of the western population of endangered Steller sea lions nor adversely modify its critical habitat. Currently the information available to evaluate alternative methods for protecting Steller sea lions and their habitat is very limited, which could result in the use of less effective and less efficient management measures. NMFS is proposing a controlled experiment off Kodiak Island in order to improve the information that can be used to assess further management actions to protect Steller sea lions and their habitat.
        The proposed research is designed to provide information bearing on the following issues: (1) Whether measurable changes exist in the distribution and abundance of pollock during the 4-year duration of the study, (2) whether commercial pollock fisheries cause short-term (days to weeks) changes in the pollock school dynamics, and (3) whether pollock fisheries cause reductions in the availability of sea lion forage (i.e., pollock) in localized regions off the east side of Kodiak Island.
        NMFS plans to conduct an echo integration trawl (EIT) survey before, during, and after the 'πC' season commercial pollock fishery off the east side of Kodiak Island in the years 2000 to 2003. An EIT survey involves systematic survey vessel track lines over which acoustic and research trawl data are collected and used to generate estimates of abundances and distribution patterns of targeted species. The 'C' season currently opens on August 20 (§ 679.22(d)(3)).
        The experimental design proposes a feasibility study in the first year and three full implementation experiments in 2001 to 2003. A feasibility study is necessary because NMFS has not conducted EIT surveys in the GOA during summer months and uncertainty exists whether survey conditions will be suitable for identifying abundance and distribution patterns of pollock. Questions also exist about conducting an EIT survey in a small geographic area during the same time period that commercial fisheries are operating.
        The research proposal identifies two treatment (fishing areas) areas at Barnabas Gully and Marmot Canyon where directed fishing for pollock typically occurs. A control site (no fishing) also is proposed in the Chiniak Gully area where trawl fishing will be prohibited in Federal waters. The prohibition on trawling in the control site is necessary to provide a basis for comparing pollock school dynamics in a fished and unfished condition (addressing issue 2 above). These study locations are proposed because they encompass historical fishing areas for pollock that are separated by topographical features with generally discrete concentrations of fish. The concentration of fishing effort in the GOA enables the designation of comparable treatment and control sites, which are essential to the study design.
        In 2001 to 2003, the EIT research surveys would be conducted in the same areas as the feasibility survey in 2000, with additional sampling after the fishing season has ended. The consistency in area and season (August to September) will enable researchers to obtain a time series of data and evaluate the effects of interannual variation. The proposed research could provide researchers with better information on pollock movements and impacts of commercial pollock harvest on foraging behavior of Steller sea lions.

        A regulatory amendment is required to prohibit trawl fishing in the control site and to allow fishing for pollock in the treatment sites, including within the 10-nm zones surrounding the Cape Barnabas and Gull Island Steller sea lion haulout sites that currently are closed to directed fishing for pollock. To accomplish this objective, the proposed regulatory amendment would implement two measures. First, it would prohibit trawl fishing in the Chiniak Gully area off the east side of Kodiak Island from August 1st to a date no later than September 20th for four years (2000 to 2003). The Chiniak Gully control site is defined by straight lines intersecting the following coordinates in the order given: 152.37° W. long., 57.81° N. lat.; 151.85° W. long., 57.81° N. lat.; 150.64° W. long., 57.22° N. lat.; 151.27° W. long., 56.98° N. lat.; 152.16° W. long., 57.62° N. lat.; and 152.37° W. long., 57.81° N. lat.

        The second management measure would authorize inseason action to open directed fishing for pollock within 10 nm of the Steller sea lion haulouts located at Gull Point and Cape Barnabas during the same period of time the Chiniak Gully control site is closed if specified conditions are met. Fishing within 10 nm of these two haulout sites would be authorized as part of the treatment area of Barnabas Gully, unless NMFS' EIT survey conducted as part of its proposed research design prior to the August 20 opening of the pollock C season indicates that the abundance and size distribution of pollock in the Barnabas Gully area are insufficient to support a commercial fishery. If the annual EIT survey fails to locate commercial concentrations of pollock in Barnabas Gully, the treatment area for a year would be moved from Barnabas Gully to Marmot Canyon and the pollock fishing closures within 10 nm surrounding Cape Barnabas and Gull Point would remain effective. These considerations are intended to focus the research area where large concentrations of pollock are present to minimize the potential for localized depletion.
        Pursuant to section 7 of the Endangered Species Act (ESA), NMFS completed a biological opinion (B.O.) on December 3, 1998, which was revised December 16, 1998, that evaluated the effects of the Atka mackerel fisheries of the Bering Sea and Aleutian Islands management area (BSAI) and the pollock fisheries of the BSAI and the GOA on candidate and listed species, including the Steller sea lion, and designated critical habitat. The B.O. concluded that the Atka mackerel fisheries were not likely to jeopardize candidate or listed species or adversely modify any designated critical habitat. However, the B.O. concluded that the pollock fisheries were likely to jeopardize the endangered western population of Steller sea lions and adversely modify its critical habitat. On October 15, 1999, NMFS issued revised final reasonable and prudent alternatives (RFRPAs) to avoid the likelihood that the pollock fisheries jeopardize the endangered western population of Steller sea lions and adversely modify its critical habitat. The RFRPAs were implemented by emergency interim rule at the commencement of the 2000 pollock fisheries (65 FR 3892, January 25, 2000). This emergency interim rule was extended through December 31, 2000 (65 FR 36795, June 12, 2000), to continue to implement RFRPAs to protect Steller sea lions and their designated critical habitat. Among other things, the RFRPAs allow the proposed research and directed fishing for pollock to be authorized until permanent rulemaking is implemented.
        The RFRPAs establish pollock “no trawl zones” in waters of the GOA around Steller sea lion rookeries and major haulouts out to 10 nm. Three exceptions to these closures were described, including one for the Steller sea lion haulouts at Cape Barnabas and Gull Point, where these sites may be opened for the purpose of conducting research to determine the effects of the pollock fisheries on prey resources in this area.
        Species listed under the ESA are present in the action area and some may be negatively affected by the proposed research. Therefore, NMFS has initiated formal consultation under section 7 of the ESA on the proposed action to authorize directed fishing for pollock within 10 nm of the Gull Point and Cape Barnabas haulout areas during the August 20 opening of the pollock “C” season in the GOA. Consultation will need to be concluded prior to agency determination on whether or not to approve the proposed action.
        Classification
        At this time, NMFS has not determined that the proposed seasonal adjustments of fishery closures this rule would implement are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.
        This proposed rule has been determined to be not significant for purposes of E.O. 12866.
        Nothing in this proposed action would result in any changes in reporting or recordkeeping requirements. The analysis for this proposed action did not reveal any existing Federal rules that duplicate, overlap, or conflict with this action.
        NMFS prepared an IRFA that describes the impact this proposed rule, if adopted, may have on small entities. Most of the vessels that the proposed rule would apply to are between 80 and 100 feet in length and are small entities under the $3 million gross earnings criterion. This action would apply to all of the approximately 200 groundfish trawl vessels that participate in the Gulf of Alaska groundfish trawl fisheries during the months of August and September. However, only about 10 percent (20 vessels) have fished in the areas subject to the controlled experiment during those months. Most of the vessels that otherwise would trawl for groundfish in the proposed Chiniak Gully area are home ported in and operate out of Kodiak, adjacent to the proposed closure area. Although vessels would be able to harvest elsewhere, they would be expected to incur some additional costs as a result of traveling greater distances to alternative fishing areas. However, these costs are expected to be low and would be short-lived while the benefits of the improved information the controlled experiment is designed to provide could be substantial. NMFS anticipates that the information the experiment would produce would help decrease the risk of not implementing effective measures to protect Steller sea lions, and decrease the cost of providing a given level of protection for the sea lions.
        NMFS considered maintaining the status quo, which could have resulted in less severe economic impacts on some small entities. However, this alternative would not allow NMFS to conduct the controlled experiment and obtain information that could be used to assess further management actions to protect Steller sea lions and their habitat. NMFS also considered an alternative that would exempt small entities from the proposed time/area closure. However, such an exemption would undermine the intent of the action to allow a controlled experiment to assess the effects of trawl fishing on the availability of prey for Steller sea lions. The preferred alternative, which this proposed rule would implement, was designed to cause the least economic impact to small entities while still obtaining the necessary information to protect Steller sea lions. Without the information obtained through this proposed action, other management actions that would cause greater economic impacts, such as permanent closure of all critical habitat to protect Steller sea lions, may have to be implemented.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries, Recordkeeping and reporting requirements.

          Dated: June 27, 2000.
          Andrew A. Rosenberg,
          Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons discussed in the preamble, 50 CFR part 679 is proposed to be amended as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
          1. The authority citation for 50 CFR part 679 continues to read as follows:

            Authority:
            16 U.S.C. 773 et
              seq., 1801 et
              seq., and 3631 et seq.
            2. In § 679.22, paragraph (b)(5) is added to read as follows:

            § 679.22
            Closures.

            (b) * * *
            (5) Chiniak Gully Research Area (effective through December 31, 2003)—(i) Description of Chiniak Gully. The Chiniak Gully Research Area is defined as that part of statistical Area 630 bounded by straight lines connecting the coordinates in the order listed:
            57.81° N. lat., 152.37° W. long.;
            57.81° N. lat., 151.85° W. long.;
            57.22° N. lat., 150.64° W. long.;
            56.98° N. lat., 151.27° W. long.;

            57.62° N. lat., 152.16° W. long.; and hence counterclockwise along the shoreline of Kodiak Island to
            57.81° N. lat., 152.37° W. long.
            (ii) Closure. (A) The Chiniak Gully Research Area is closed to vessels using trawl gear from August 1 to a date no later than September 20, except that trawl gear may be tested in the manner described at § 679.24(d)(2) in the Kodiak Test Area defined at § 679.24(d)(4)(i) and illustrated in Figure 7 to this part.

            (B) Prior to September 20, the Regional Administrator may publish notification in the Federal Register rescinding the trawl closure in the Chiniak Gully Research Area described in paragraph (b)(5)(i) of this part and reinstating closures to directed fishing for pollock within 10 nm of the Steller sea lion haulout sites located at Gull Point and Cape Barnabas if such closures were rescinded under paragraph (b)(5)(iii) of this section.
            (iii) Exemption to Steller sea lion critical habitat closures. (A) General. During the C season in Statistical Area 630 of the GOA, defined at § 679.23(d)(3)(iii) of this part, the Regional Administrator may rescind the prohibition on directed fishing for pollock within 10 nm of the Steller sea lion haulout sites at Cape Barnabas and Gull Point on Kodiak Island, which are defined at § 679.22(b)(3)(ii)and Table 13 of this part.
            (B) Criteria for exemption. NMFS will conduct an annual echo integration trawl survey of pollock abundance and distribution off the east side of Kodiak Island prior to the start of the pollock C season defined at § 679.23(d)(3)(iii). If survey results indicate that the abundance and size distribution of pollock in the area between the Steller sea lion haulouts at Cape Barnabas and Gull Point, defined at § 679.22(b)(3)(ii) and Table 13 of this part, are sufficient to support a commercial fishery, then NMFS will authorize directed fishing for pollock within 10 nm of these two haulout sites during that C season.
            (C) Notification. If the Regional Administrator rescinds the closures to directed fishing for pollock around the Cape Barnabas and Gull Point haulout sites under this paragraph (b)(5)(iii), NMFS will publish notification in the Federal Register announcing this action prior to the start of the pollock C season.

      [FR Doc. 00-16770 Filed 6-30-00; 8:45 am]
      BILLING CODE 3510-22-F


        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Centers for Medicare & Medicaid Services
        42 CFR Part 440
        [CMS-2234-P]
        RIN 0938-A045
        Medicaid Program; State Option To Establish Non-Emergency Medical Transportation Program

          AGENCY:
          Centers for Medicare & Medicaid Services (CMS), HHS.

          ACTION:
          Proposed rule.

          SUMMARY:
          This proposed rule would implement section 6083 of the Deficit Reduction Act of 2005 which provides States with additional State plan flexibility to establish a non-emergency, medical transportation brokerage program, and to receive the Federal medical assistance percentage rate. This authority supplements the current authority that States have to provide non-emergency medical transportation to Medicaid beneficiaries who need access to medical care, but have no other means of transportation.

          DATES:
          To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on September 24, 2007.

          ADDRESSES:
          In commenting, please refer to file code CMS-2234-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
          You may submit comments in one of four ways (no duplicates, please):
          1. Electronically. You may submit electronic comments on specific issues in this regulation to http://www.cms.hhs.gov/eRulemaking. Click on the link “Submit electronic comments on CMS regulations with an open comment period.” (Attachments should be in Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft Word.)
          2. By regular mail. You may mail written comments (one original and two copies) to the following address ONLY:
          Centers for Medicare & Medicaid Services, Department of Health and Human Services,  Attention: CMS-2244-P,  P.O. Box 8017, Baltimore, MD 21244-8017.
          Please allow sufficient time for mailed comments to be received before the close of the comment period.
          3. By express or overnight mail. You may send written comments (one original and two copies) to the following address ONLY:
          Centers for Medicare & Medicaid Services, Department of Health and Human Services,  Attention: CMS-2234-P,  Mail Stop C4-26-05,  7500 Security Boulevard,  Baltimore, MD 21244-1850.
          4. By hand or courier. If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) before the close of the comment period to one of the following addresses. If you intend to deliver your comments to the Baltimore address, please call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.
          Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security Boulevard,  Baltimore, MD 21244-1850.
          (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
          Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

            Submission of comments on paperwork requirements. You may submit comments on this document's paperwork requirements by mailing your comments to the addresses provided at the end of the “Collection of Information Requirements” section in this document.

          For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

          FOR FURTHER INFORMATION CONTACT:
          Donna Schmidt, (410) 786-5532.

        SUPPLEMENTARY INFORMATION:

          Submitting Comments: We welcome comments from the public on all issues set forth in this rule to assist us in fully considering issues and developing policies. You can assist us by referencing the file code CMS-2234-P and the specific “issue identifier” that precedes the section on which you choose to comment.

          Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://www.cms.hhs.gov/eRulemaking. Click on the link “Electronic Comments on CMS Regulations” on that Web site to view public comments.
        Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
        I. Background
        A. General

        For more than a decade, States have been asking for the tools to modernize their Medicaid programs. With the enactment of section 6083 of the Deficit Reduction Act of 2005 (DRA), Pub. L. 109-171, on February 8, 2006, States now have new options to create programs that are more aligned with today's Medicaid populations and the health care environment. Cost sharing, benefit flexibility through benchmark plans, the health opportunity accounts (HOA), and the flexibility to design cost-effective transportation programs provide opportunities to modernize Medicaid, make the cost of the program and health care more affordable, and expand coverage for the uninsured.
        B. Statutory Authority
        Section 6083 of the DRA amended section 1902(a) of the Social Security Act (the Act) by adding a new section 1902(a)(70), which allows States to amend their Medicaid State plans to establish a non-emergency medical transportation brokerage program without regard to statutory requirements for comparability, state-wideness, and freedom of choice. This proposed regulation would provide States with the flexibility granted by the statute.
        II. Provisions of the Proposed Regulations
        [If you choose to comment on issues in this section, please include the caption “Provisions of the Proposed Regulations” at the beginning of your comments.]
        A. Overview
        The Department of Health and Human Services (DHHS) began issuing guidance about the new flexibilities available to States within months of the enactment of the DRA. On March 31, 2006, DHHS issued a State Medicaid Director letter providing guidance on the implementation of section 6083 of the DRA. The proposed regulation would formalize the guidance issued on non-emergency medical transportation programs. The proposed regulation would add a new paragraph (4) to 42 CFR 440.170(a).
        B. Requirements of the Provision for State Plans
        Under § 431.53, States are required in their Title XIX State plans to ensure necessary transportation of Medicaid beneficiaries to and from providers. Expenditures for transportation may be claimed as administrative costs, or a State may elect to include transportation as medical assistance under its State Medicaid plan.
        Before enactment of the DRA, if a State wanted to provide transportation as medical assistance under the State plan, it could not restrict beneficiary choice by selectively contracting with a broker, nor could it provide services differently in different areas of the State without receiving, under section 1915(b) of the Act, a waiver of freedom of choice, comparability, and state-wideness otherwise required at section 1902(a) of the Act. These waivers allowed States to selectively contract with brokers and to operate their programs differently in different areas of the State.
        The DRA gives the States greater flexibility in providing non-emergency medical transportation. States are no longer required to obtain a section 1915(b) waiver in order to provide non-emergency transportation as an optional medical service through a competitively contracted broker. A State plan amendment for such a brokerage program eliminates the administrative burden of the 1915(b) biannual waiver renewal. Under new section 1902(a)(70) of the Act, a State may now use a non-emergency medical transportation brokerage program when providing transportation as medical assistance under the State plan, notwithstanding the provisions of sections 1902(a)(1), 1902(a)(10)(B), and 1902(a)(23) of the Act, concerning state-wideness, comparability, and freedom of choice, respectively.
        Current regulations provide that when a State includes transportation in its State plan as medical assistance, it is required to use a direct vendor payment system that is consistent with applicable regulations at § 440.170(a), and it must also comply with all other requirements related to medical services, including freedom of choice, comparability, and state-wideness. To implement the provisions of section 1902(a)(70) of the Act, we propose revising § 440.170(a) to add a new paragraph (4), Non-emergency medical transportation brokerage program, to reflect the increased flexibility allowed by the DRA.
        We propose allowing, at the option of the State, the establishment of a non-emergency medical transportation brokerage program. We believe that this may prove to be a more cost-effective way of providing transportation for individuals eligible for medical assistance under the State plan, who need access to medical care or services and have no other means of transportation.
        As provided by the statute, we propose specifying in § 440.170(a)(4) that the broker could provide for transport services that include wheelchair vans, taxis, stretcher cars, bus passes and tickets, secured transportation. We are interpreting “secured transportation” in this context to mean a form of transportation containing an occupant protection system that addresses the safety needs of disabled or special needs individuals.
        The Deficit Reduction Act also provides that other forms of transportation may be included as determined by the Secretary to be appropriate. At this time, we are not proposing to determine any additional transportation services to be generally appropriate. We are proposing, however, to allow States to identify additional transportation alternatives that are otherwise covered under the State plan (and not specific to services available through transportation brokers). CMS will review these alternatives in the State plan amendment approval process for transportation services generally. In that process, we will consider individual circumstances in the State and applicable utilization controls. For example, air transportation may be appropriate in States with significant rural populations and low population density, but not in other States. Even in those States, air transportation may only be appropriate with appropriate utilization controls. Thus, we are proposing to make this determination in the context of our review of State plan amendments based on the information furnished by the State.
        At § 440.170(a)(4), we propose that the competitive bidding process be consistent with applicable Department regulations at 45 CFR 92.36, based on the State's evaluation of the broker's experience, performance, references, resources, qualifications and cost, and that the contract with the broker include oversight procedures to monitor beneficiary access and complaints, and ensure that transport personnel are licensed, qualified, competent, and courteous. We are proposing that State and local bodies that wish to serve as brokers compete on the same terms as non-governmental entities.

        We propose in paragraph (a)(4)(iv) to include prohibitions on broker self-referrals and conflict of interest, based on the prohibitions on physician referrals under section 1877 of the Act (42 U.S.C. 1395(nn)). Section 1877 of the Act generally prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity, with which he or she (or an immediate family member) has a financial relationship (ownership or compensation) unless an exception applies. In addition, to prevent other types of fraud and abuse, the anti-kickback provisions in section 1128B(b)of the Act (42 U.S.C. 1320a-7b(b)) and the provisions in the civil False Claims Act (31 U.S.C. 3729) also apply to this transportation program as they apply to the Medicaid program generally.
        We believe that the Congress intended that section 1877 of the Act and the applicable regulations be used as a model for establishing broker prohibitions on referrals, conflicts of interest, and impermissible kickbacks, in order to prevent fraud and abuse.
        A financial relationship, as defined in our regulations implementing section 1877 of the Act at § 411.354(a), includes any direct or indirect ownership or investment interest in the entity that furnishes designated health services and any compensation arrangement between such an entity and the physician or an immediate family member of the physician.
        Section 1877 of the Act includes certain ownership and investment exceptions, compensation exceptions, and some exceptions that apply to ownership, investment, and compensation relationships. In addition, section 1877(b)(4) of the Act allows the Secretary to create an exception in the case of any other financial relationship that does not pose a risk of program or patient abuse.
        For purposes of new § 440.170(a), we propose that the term “transportation broker” include contractors, owners, investors, Boards of Directors, corporate officers, and employees.
        We propose to use the definition of “financial relationship” as set forth in regulations at § 411.354(a) by means of cross-reference, with the term “transportation broker” substituted for “physician” and “non-emergency transportation” substituted for “DHS.” We propose to use the definition of “immediate family member” or member of a “physician's immediate family” as set forth in the physician self-referral provisions in § 411.351, with the term “transportation broker” substituted for “physician.”
        Based on the prohibitions in section 1877 of the Act, we propose that the broker be an independent entity, in that the broker may not itself provide transportation under the contract with the State and that the broker may not refer or subcontract to a transportation service provider with which it has certain financial relationships, unless certain exceptions apply. Federal funds may not be used for any prohibited referrals.
        Similar to some of the ownership exceptions in section 1877 of the Act, we propose including exceptions for a non-governmental broker that provides transportation in a rural area when there is no other qualified provider available; when the necessary transportation provided by the non-governmental broker is so specialized that no other qualified provider is available; or when the availability of qualified providers other than the non-governmental broker is insufficient to meet the existing need.
        For purposes of this regulation we propose that a qualified provider would be any Medicaid participating provider or other provider determined by the State to be qualified. A “rural area,” as defined in § 412.62(f)(iii), is any area that is outside an urban area. These exceptions address specific circumstances in which there is a lack of transportation resources and there is documentation to support these exceptions.
        Governmental Brokerages
        We did not wish to prevent a government entity that is awarded a brokerage contract through the competitive bidding process from referring an individual in need of transportation service to a government transportation provider that is generally available in the community. Therefore, we have included an exception to allow such a governmental broker to provide an individual transportation service or to arrange for the individual transportation service by referring to or subcontracting with another government-owned or -controlled transportation provider, when certain conditions have been met that will assure an arms-length transaction.
        The broker would first be required to be a distinct governmental unit, and the contract could not include payment of costs other than those unique to the distinct brokerage function. This means the contract could not provide for payment of costs normally shared with or paid by other governmental units (such as a regional transportation authority). This requirement would ensure that the distinct broker unit did not have direct financial conflicts of interest resulting from commingling funding with State or local general revenue funds. Second, the broker would have to document, after considering the specific transportation needs of the individual, that the government provider was the most appropriate, effective, and lowest cost alternative for each individual transportation service. And third, the broker would have to document that for each individual transportation service, the Medicaid program was paying no more than the rate charged to the general public. Because there could still be conflicts of interest resulting from management oversight from a parent or related governmental unit, we considered proposing to limit the exception to circumstances where the distinct unit governmental broker was independent of external review and oversight by the parent entity. However, we currently believe that the proposed conditions would be sufficient to protect against inappropriate inter-governmental referrals.
        We are soliciting comments, suggestions, and examples regarding the following exceptions mentioned above: the service area is rural and there is no other Medicaid participating or qualified provider available except the non-governmental broker; the transportation provided by the non-governmental broker is so specialized that no other qualified provider is available (including comments on how “specialized” should be defined); available qualified providers other than the non-governmental broker are insufficient to meet the need; the broker is a distinct government unit and is paid only for costs that are unique to the distinct brokerage function and the broker documents that services provided by any other governmental entity are the most appropriate, least costly alternative, and the Medicaid program is paying no more than the rate charged to the public.
        Additionally, we are proposing to include a prohibition on a broker accepting any form of remuneration or payment from a transportation provider in exchange for influencing a referral or subcontract for transportation services. We also propose that in referring or subcontracting with transportation providers, the broker be prohibited from withholding necessary transportation from a recipient or providing transportation that is not the most appropriate and cost-effective means of transportation.
        Under section 1905(a)(28) of the Act, the Secretary is given the authority to specify any other medical care which can be covered by the State. We would therefore use authority to make Federal financial participation available at the medical assistance rate for the cost of the brokerage contract, providing that such a contract complied with the requirements set forth in this regulation.

        In accordance with Federal requirements in sections 1902(a)(2) and 1903(w) of the Act and applicable Federal regulations described at § 433.50 through § 433.74, under the brokerage contract with the State Medicaid agency, the non-Federal share of the Medicaid payments made for operating a transportation brokerage program could only be derived from permissible sources and must comply with the applicable statute and regulations cited above. Also, the return of any Medicaid payments (directly or indirectly) to a State or local government entity under the non-emergency transportation brokerage program is prohibited.
        We propose that the State, in contracting with the broker, would be required to specify that violation of these provisions would be deemed to be a breach of contract and that the State could move to terminate the contract with the broker.
        III. Collection of Information Requirements

        Under the Paperwork Reduction Act of 1995, we are required to provide 60-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that we solicit comment on the following issues:
        • The need for the information collection and its usefulness in carrying out the proper functions of our agency.
        • The accuracy of our estimate of the information collection burden.
        • The quality, utility, and clarity of the information to be collected.
        • Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
        We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements:
        Section 6083 of the DRA (Non-emergency Medical Transportation Brokerage Program) provides States with the option to submit a State Plan amendment (SPA) to establish a non-emergency medical transportation brokerage program. To effectuate this option, States must submit an amendment to their existing State Plan. CMS has provided States with a letter providing guidance on this provision and the implementation of the DRA, and an associated SPA template for use by States to modify their Medicaid State plan if they choose to implement this option.
        The template is a total of five pages and we estimate that it will take no more than 12 minutes for a State to actually complete and submit the template to CMS. The potential number of respondents is 56 (50 States, DC, and five territories); however, we do not expect the territories and/or all 50 states to respond. We estimate that only five States will submit annually. Once approved, the State will not need to resubmit unless it is materially changing the brokerage program.
        At this rate, it will cost no more than $50 (or $50 × 1/5 hrs × 5 states); the national total for the first year could be potentially $560 (56 × $10).
        We have submitted a copy of this proposed rule to OMB for its review of the information collection requirements described above. These requirements are not effective until they have been approved by OMB.
        If you comment on these information collection and recordkeeping requirements, please mail copies directly to the following:
        Centers for Medicare & Medicaid Services, Office of Strategic Operations and Regulatory Affairs,  Division of Regulations Development,  Attn: Melissa Musotto, [CMS-2234-P],  Room C4-26-05, 7500 Security Boulevard,  Baltimore, MD 21244-1850; and

        Office of Information and Regulatory Affairs,  Office of Management and Budget,  Room 10235, New Executive Office Building,  Washington, DC 20503,  Attn: Katherine Astrich, CMS Desk Officer, CMS-2244-P, katherine_astrich@omb.eop.gov. Fax (202) 395-6974.
        IV. Regulatory Impact Statement
        [If you choose to comment on issues in this section, please include the caption “Regulatory Impact Statement” at the beginning of your comments.]
        We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
        Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if 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 ($100 million or more in any 1 year). We estimate that this regulation will have estimated budget savings of $60 million between FY 2006 and FY 2010 due to the implementation of section 6083 of the Deficit Reduction Act of 2005. This rule would not reach the economic threshold and thus is not considered a major rule.
        The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6.5 million to $30.5 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this rule would not have a significant economic impact on a substantial number of small entities.
        In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this rule would not have a significant impact on the operations of a substantial number of small rural hospitals.
        Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This rule would have no consequential effect on State, local, or tribal governments or on the private sector.
        Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule and subsequent final rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation would not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.
        In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

          List of Subjects in 42 CFR Part 440
          Grant programs—health, Medicaid.

        For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services would amend 42 CFR chapter IV as set forth below:

          PART 440—SERVICES: GENERAL PROVISIONS
          1. The authority citation for part 440 continues to read as follows:

            Authority:
            Sec. 1102 of the Social Security Act (42 U.S.C. 1302), as amended.

          2. A new authority citation is added in numerical order to § 440.1 to read as follows:

            § 440.1
            Basis and purpose.

            1902(a)(70), State option to establish a non-emergency medical transportation program.

            3. Section 440.170 is amended by revising paragraph (a)(2) and adding new paragraph (a)(4) to read as follows:

            § 440.170
            Any other medical care or remedial care recognized under State law and specified by the Secretary.
            (a) * * *
            (2) Except as provided in paragraph (a)(4), transportation, as defined in this section, is furnished only by a provider to whom a direct vendor payment can appropriately be made by the agency.
            (3) * * *
            (4) Non-emergency medical transportation brokerage program. At the option of the State, and notwithstanding § 431.50 (statewide operation) and § 431.51 (freedom of choice of providers) of this chapter and § 440.240 (comparability of services for groups), a State plan may provide for the establishment of a non-emergency medical transportation brokerage program in order to more cost-effectively provide non-emergency medical transportation services for individuals eligible for medical assistance under the State plan who need access to medical care or services, and have no other means of transportation. These transportation services include wheelchair vans, taxis, stretcher cars, bus passes and tickets, secured transportation containing an occupant protection system that addresses safety needs of disabled or special needs individuals, and other forms of transportation otherwise covered under the state plan.
            (i) Non-emergency medical transportation services may be provided under contract with an individual or entity that meets the following requirements:
            (A) Is selected through a competitive bidding process that is consistent with 45 CFR part 92.36 and is based on the State's evaluation of the broker's experience, performance, references, resources, qualifications, and costs.
            (B) Has oversight procedures to monitor beneficiary access and complaints and ensure that transport personnel are licensed, qualified, competent, and courteous.
            (C) Is subject to regular auditing and oversight by the State in order to ensure the quality of the transportation services provided and the adequacy of beneficiary access to medical care and services.
            (D) Is subject to a written contract that imposes the requirements related to prohibitions on referrals and conflicts of interest described at § 440.170(a)(4)(ii), and provides for the broker to be liable for the full cost of services resulting from a prohibited referral or subcontract.
            (ii) Federal financial participation is available at the medical assistance rate for the cost of a written brokerage contract that:
            (A) Except as provided in paragraph (a)(4)(ii)(B) of this section, prohibits the broker (including contractors, owners, investors, Boards of Directors, corporate officers, and employees) from providing non-emergency medical transportation services or making a referral or subcontracting to a transportation service provider if:
            (1) The broker has a financial relationship with the transportation provider as defined at § 411.354(a) of this chapter with “transportation broker” substituted for “physician” and “non-emergency transportation” substituted for “DHS”; or
            (2) The broker has an immediate family member, as defined at § 411.351 of this chapter, that has a direct or indirect financial relationship with the transportation provider, with the term “transportation broker” substituted for “physician.”
            (B) Exceptions: The prohibitions described at clause (A) of this paragraph do not apply if there is documentation to support the following:
            (1) Transportation is provided in a rural area, as defined at § 412.62(f), and there is no other available Medicaid participating provider or other provider determined by the State to be qualified except the non-governmental broker.
            (2) Transportation is so specialized that there is no other available Medicaid participating provider or other provider determined by the State to be qualified except the non-governmental broker.
            (3) Except for the non-governmental broker, the availability of other Medicaid participating providers or other providers determined by the State to be qualified is insufficient to meet the need for transportation.
            (4) The broker is a distinct government entity and the individual service is provided by the broker, or is referred to or subcontracted with another government-owned or operated transportation provider generally available in the community, if the following conditions are met:
            (i) The contract with the broker provides for payment that does not exceed actual costs calculated as a distinct unit, excluding personnel or other costs shared with or allocated from parent or related entities;
            (ii) The broker documents that, with respect to the individual's specific transportation needs, the government provider is the most appropriate and lowest cost alternative; and
            (iii) The broker documents that the Medicaid program is paying no more than the rate charged to the general public.
            (C) Transportation providers may not offer or make any payment or other form of remuneration, including any kickback, rebate, cash, gifts, or service in kind to the broker in order to influence referrals or subcontracting for non-emergency medical transportation provided to a Medicaid recipient.
            (D) In referring or subcontracting for non-emergency medical transportation with transportation providers, a broker may not withhold necessary non-emergency medical transportation from a Medicaid recipient or provide non-emergency medical transportation that is not the most appropriate and a cost-effective means of transportation for that recipient for the purpose of financial gain, or for any other purpose.
            (E) The non-Federal share of all Medicaid payments under the transportation brokerage program must be in compliance with applicable Federal requirements in sections 1902(a)(2) and 1903(w) of the Act, and applicable Federal regulations set forth at § 433.50 through § 433.74 of this chapter.

              (Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program)

            Dated: August 30, 2006.
            Mark B. McClellan,
            Administrator, Centers for Medicare & Medicaid Services.
            Approved: May 10, 2007.
            Michael O. Leavitt,
            Secretary.

            Editorial Note:
            This document was received at the Office of the Federal Register on August 13, 2007.

       [FR Doc. E7-16172 Filed 8-23-07; 8:45 am]
      BILLING CODE 4120-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-XA421
        Fisheries of the Exclusive Economic Zone Off Alaska; Scallops

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

          ACTION:
          Notice of availability of a fishery management plan amendment; request for comments.

          SUMMARY:
          The National Marine Fisheries Service (NMFS) announces that the North Pacific Fishery Management Council (Council) has submitted Amendment 13 to the Fishery Management Plan for the Scallop fishery off Alaska (FMP) for review by the Secretary of Commerce (Secretary). If approved, Amendment 13 would implement an annual catch limit (ACL) and accountability measures (AMs) to prevent overfishing in the target fishery for weathervane scallops. Implementing these measures would require revising the maximum sustainable yield (MSY) and the optimum yield (OY) for weathervane scallops to account for total catch. Amendment 13 would also clarify that, in the absence of a statewide estimate of spawning biomass for weathervane scallops, the overfishing level (OFL) is specified as the MSY. Under Amendment 13, scallop species not targeted in the fishery would be classified as Ecosystem Component (EC) species. Amendment 13 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMP, and other applicable laws.

          DATES:
          Written comments on Amendment 13 must be received on or before 5 p.m., Alaska local time, on September 9, 2011.

          ADDRESSES:

          Send comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-XA421, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.

          • Fax: (907) 586-7557.
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

            Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, or Adobe PDF file formats only.

          Electronic copies of Amendment 13 and the Environmental Assessment prepared for this action may be obtained from the Federal eRulemaking Portal http://www.regulations.gov or from the Alaska Region Web site at http://alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Peggy Murphy or Gretchen Harrington, 907-586-7228.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP or FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice of availability announces that proposed Amendment 13 to the FMP is available for public review and comment.

        The Council developed the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.), and it was approved by the Secretary on July 26, 1995. The scallop fisheries in the U.S exclusive economic zone off Alaska are jointly managed according to the FMP and implementing regulations issued by NMFS or the State of Alaska (State). The FMP delegates many management measures for the scallop fisheries to the State with Federal oversight. Under the FMP, the State sets a guideline harvest level (GHL) for each scallop registration area and manages each fishery inseason to the corresponding GHL. The GHL is an amount of harvest the managers determine acceptable for the upcoming fishing year. The GHL for each scallop fishery is set within the applicable guideline harvest range, which the State has established in regulations.
        The FMP covers all scallop stocks off Alaska. Weathervane scallops are currently the only scallop species targeted in commercial fisheries. All other scallop species, including pink, spiny, and rock scallops, are not targeted but occasionally occur as bycatch in the weathervane scallop fisheries.
        Amendment 13 was unanimously adopted by the Council in October 2010. Amendment 13 would (1) revise the MSY and OY to include all fishing mortality; (2) specify that the OFL equals the MSY in the absence of a statewide estimate of spawning biomass for weathervane scallops; (3) specify an acceptable biological catch (ABC) control rule to account for uncertainty in the OFL; (4) set the ACL equal to the ABC; (5) specify accountability measures to prevent catch from exceeding the ACL and to correct for an overage if the ACL is exceeded; and (6) create an EC category for non-target scallop species. With adoption of Amendment 13, the Council intended to bring the FMP into compliance with the new requirements of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2007.
        The Magnuson-Stevens Act establishes, either expressly or by logical extension, four basic requirements that prompted the Council's recommendation to amend the FMP. The Guidelines for National Standard 1 of the Magnuson-Stevens Act (50 CFR 600.310; NS 1 Guidelines) provide guidance to regional fishery management councils about how to satisfy the obligations of the Magnuson-Stevens Act relative to preventing overfishing and establishing an ABC and ACL. The following is a summary of these four requirements.
        1. For stocks in the fishery, the FMP must establish a mechanism for specifying an ACL that will prevent overfishing;
        2. For each stock or stock complex in the fishery, the FMP must establish an ABC control rule that accounts for relevant sources of scientific uncertainty;
        3. The Council's Scientific and Statistical Committee (SSC) must provide the Council with scientific advice on the ABC control rule and periodic recommendations for specifying the ABC for each stock or stock complex in the fishery; and
        4. The FMP must establish accountability measures that prevent exceeding the ACL and correct overages of the ACL if they do occur.
        The Council designed Amendment 13 to address these requirements while maintaining the FMP's cooperative State and Federal management structure, to the extent possible.
        Maximum Sustainable Yield, Optimum Yield, and Overfishing Level
        Currently, the FMP specifies an MSY and OY range that reflect only the retained catch in the weathervane scallop fishery. Amendment 13 would revise the retained catch MSY and OY range to reflect total catch by encompassing all sources of scallop fishing mortality, including discards in the directed scallop fishery, bycatch in the groundfish fisheries, and mortality associated with research surveys. The additional fishing mortality from these other sources was estimated as 3.6 percent of the annual retained catch. The statewide weathervane scallop MSY would be revised from 1.24 million pounds (562 metric tons) to 1.284 million pounds (582 metric tons) of shucked meats. The OY is estimated statewide with an upper bound of the MSY. Amendment 13 would also revise the weathervane scallop OY range to be 0 to 1.284 million pounds (582 metric tons) of shucked meats.

        Currently, the FMP specifies an overfishing control rule for weathervane scallops stocks as a fishing rate in excess of the natural mortality rate. If an estimate of the statewide weathervane scallop spawning biomass was available, the overfishing control rule would be applied to that estimate to determine the OFL. An estimate of the statewide weathervane scallop spawning biomass is not currently available, however, which prevents application of the overfishing control rule to annually determine the OFL. Therefore, until such an estimate of spawning biomass is available, Amendment 13 would specify a default OFL equal to the MSY of 1.284 million pounds. The OFL would be set statewide because the best available information indicates that there is one statewide stock of weathervane scallops and the information necessary to set regional OFLs is not available. In practice, the statewide MSY has functioned as the OFL since 1996. The average annual weathervane scallop catch since 1996 has been less than half of the MSY.
        Acceptable Biological Catch and Annual Catch Limit
        Amendment 13 would establish an ABC control rule and set the ACL equal to the ABC. Annually, the ABC control rule would be used to set the maximum ABC for the statewide weathervane scallop stock at 90 percent of the OFL. This 10 percent buffer would reduce the risk of overfishing occurring in the weathervane scallop fishery.
        The ABC is set to account for the scientific uncertainty in the estimate of the OFL. Lacking a stock assessment model, the sources of scientific uncertainty in the scallop OFL estimate are not directly quantifiable at this time. Therefore, under Amendment 13, scientific uncertainty in the OFL estimate is incorporated in the size of the buffer between the OFL and the ABC.
        Scientific and Statistical Committee
        The Council's SSC would annually establish the ABC for weathervane scallops through the following process. The Scallop Plan Team meets shortly after the scallop fishing season concludes to compile the Stock Assessment and Fishery Evaluation (SAFE) report. The SAFE includes stock assessments, fishery information, and reference points. The Scallop Plan Team would evaluate whether the total catch exceeded the ACL in the previous fishing season. The Scallop Plan Team would then calculate the maximum ABC using the ABC control rule for the upcoming fishing season. The Scallop Plan Team may recommend that the SSC set an ABC lower than the maximum ABC, but it should provide an explanation for such a recommendation.
        The SSC would then review the SAFE and recommendations from the Scallop Plan Team. The SSC would set a statewide ABC for the directed weathervane scallop fishery prior to the beginning of the fishing season. The SSC may set an ABC lower than the maximum ABC calculated using the ABC control rule, but it must provide an explanation for why a lower ABC was set.
        Accountability Measures
        Amendment 13 would establish AMs to prevent ACLs from being exceeded and to correct overages of the ACL if they do occur. First, under Amendment 13, the State would establish the annual GHL for each scallop management area at a level sufficiently below the ACL so that the sum of the directed scallop fishery removals and estimated discard mortality in directed scallop and groundfish fisheries does not exceed the ACL.
        Second, the inseason management measures that prevent catch from exceeding the GHL, and have been a part of management of the weathervane scallop fishery since the inception of this FMP, would also prevent catch from exceeding the ACL. State management requires 100 percent observer coverage of all vessels in the weathervane scallop fishery. Fishery observers provide inseason data on catch and bycatch. Managers monitor inseason fisheries landings and observer data and have the authority to close a fishery inseason to prevent catch from exceeding the GHL.
        Third, if total catch does exceed the ACL, State managers would account for the overage through a downward adjustment to the GHL in the following season by an amount sufficient to remedy the biological consequences of the overage.
        Ecosystem Component
        Under the NS 1 Guidelines, all stocks in an FMP are considered to be “in the fishery,” unless they are identified as EC species through an FMP amendment process. Council review of the FMP determined that weathervane scallops are “in the fishery” as they are targeted and retained for sale. Amendment 13 would establish an EC category in the FMP that contains all non-targeted scallop species, including pink or reddish scallops, spiny scallops, and rock scallops.
        Non-targeted scallops are managed under the scallop FMP but are not generally retained in commercial scallop fisheries off Alaska. These non-target scallop species occupy habitats at different depths than the targeted weathervane scallops; therefore NMFS does not anticipate that incidental catch in the weathervane scallop fishery would pose a serious risk to these stocks. The best available scientific information does not indicate that any of the non-target scallop species are overfished, subject to overfishing or approaching an overfished condition, or likely to become overfished if placed in the EC category.
        According to the NS 1 Guidelines, no reference points are required for EC species; however, under Amendment 13, these species would be monitored to ensure they are not targeted and that incidental catch does not reach a point where there are concerns for the sustainability of these stocks. Harvest limits and related management measures would be developed and implemented prior to developing a fishery for any of these species.

        An Environmental Assessment was prepared for Amendment 13 that provides detailed descriptions of the scallop fishery management background, the purpose and need for action, the management alternatives evaluated to address this action, and the environmental, social, and economic impacts of the alternatives (see ADDRESSES).
        NMFS solicits public comments on Amendment 13 and associated documents. Public comments on Amendment 13 must be received, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period (see DATES). Comments received by the end of the comment period will be considered in the decision to approve, disapprove, or partially approve Amendment 13. Comments received after that date will not be considered.

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

          Dated: July 5, 2011.
          Eric C.  Schwaab,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 2011-17360 Filed 7-8-11; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        33 CFR Part 165
        [Docket No. USCG-2008-0124]
        RIN 1625-AA87
        Security Zone; Freeport LNG Basin, Freeport, TX

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Coast Guard proposes to establish a permanent security zone in the Freeport LNG Basin. This security zone is needed to protect vessels, waterfront facilities, the public, and other surrounding areas from destruction, loss, or injury caused by sabotage, subversive acts, accidents, or other actions of a similar nature. Entry into this zone would be prohibited, except for vessels that have obtained the express permission from the Captain of the Port Houston-Galveston or his designated representative.

          DATES:
          Comments and related material must reach the Coast Guard on or before June 1, 2009.

          ADDRESSES:
          You may submit comments identified by Coast Guard docket number USCG-2008-0124 using any one of the following methods:
          (1) Federal eRulemaking Portal: http://www.regulations.gov.
          (2) Fax: 202-493-2251.
          (3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
          (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

          To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Lieutenant Cliff Harder, Marine Safety Unit Galveston, telephone (409) 978-2700, extension 2705, or e-mail cliff.j.harder@uscg.mil. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

        SUPPLEMENTARY INFORMATION:

        Public Participation and Request for Comments

        We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.
        Submitting Comments

        If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0124), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand-deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
        To submit your comment online, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2008-0124” in the Docket ID box, press Enter, and then click on the balloon shape in the Actions column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.
        Viewing Comments and Documents

        To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert USCG-2008-0124 in the Docket ID box, press Enter, and then click on the item in the Docket ID column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.
        Privacy Act

        Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.
        Public Meeting

        We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.
        Background and Purpose

        Heightened awareness of potential terrorist acts requires enhanced security of our ports, harbors, and vessels. To enhance security, the Captain of the Port Houston-Galveston proposes to establish a permanent security zone within the port of Freeport, TX. This would make permanent a temporary final rule that was effective from January 15, 2009, to April 30, 2009. See 74 FR 13341.
        This proposed rule would establish a new distinct security zone in the Freeport LNG Basin. This zone would protect waterfront facilities, persons, and vessels from subversive or terrorist acts. Vessels operating within the Captain of the Port Houston-Galveston Zone are potential targets of terrorist attacks, or platforms from which terrorist attacks may be launched upon from other vessels, waterfront facilities, and adjacent population centers.
        This zone is being proposed for an area concentrated with commercial facilities considered critical to national security. This proposed rule is not designed to restrict access to vessels engaged, or assisting in commerce with waterfront facilities within the security zones, vessels operated by port authorities, vessels operated by waterfront facilities within the security zones, and vessels operated by federal, state, county or municipal agencies. By limiting access to this area the Coast Guard would reduce potential methods of attack on vessels, waterfront facilities, and adjacent population centers located within the zones. All vessels not exempted under current 33 CFR 165.814(c) desiring to enter this zone would be required to obtain express permission from the Captain of the Port Houston-Galveston or his designated representative prior to entry.
        Discussion of Proposed Rule
        The Captain of the Port Houston-Galveston proposes to amend 33 CFR 165.814 to establish a permanent security zone in the Freeport LNG Basin. In proposed paragraph (a)(5)(iii), the zone would encompass all waters shoreward of a line drawn between the eastern point at latitude 28°56′25″ N, 095°18′13″ W, and the western point at 28°56′28″ N, 095°18′31″ W. This security zone would be part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks.
        All vessels not exempted under current paragraph (c) of section 165, would be prohibited from entering the proposed security zone unless authorized by the Captain of the Port Houston-Galveston or his designated representative. Revisions to paragraph (c)(2) would provide methods of obtaining authorization: In Houston, vessels can contact the Captain of the Port Houston-Galveston, through Vessel Traffic Service Houston/Galveston on VHF Channel 5A, by telephone at (713) 671-5103, or by facsimile at (713) 671-5159. In Freeport, vessels can contact the Captain of the Port Houston-Galveston through Marine Safety Unit Galveston, by telephone at (409) 978-2700, or by facsimile at (409) 978-2671.
        We propose to delete paragraph (b) of 33 CFR 165.814 because it merely states a past effective date for that section and there is no need for this effective date in the regulatory text of a permanent regulation. Accordingly, we propose to redesignate paragraph (c) of section 165.814 as (b).
        Regulatory Evaluation
        This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The basis of this finding is that the security zone is not part of the navigable waterway or a commercial fishing ground. It does not impede commercial traffic to or from the Port of Freeport or on the adjacent Intracoastal Waterway.
        Small Entities
        Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
        The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
        This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reason: This proposed rule would not interfere with regular vessel traffic within the Freeport Ship Channel and/or the Intracoastal Waterway.

        If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.
        Assistance for Small Entities
        Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Cliff Harder at (409) 978-2700, extension 2705. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
        Collection of Information

        This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

        Federalism
        A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
        Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
        Taking of Private Property
        This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
        Civil Justice Reform
        This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        Protection of Children
        We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
        Indian Tribal Governments
        This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.
        Energy Effects
        We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
        Technical Standards
        The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
        This proposed rule would not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
        Environment

        We have analyzed this proposed rule under Department of Homeland Security Management Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this preliminary determination is available in the docket where indicated under ADDRESSES. This proposed rule involves establishing a permanent security zone in the Freeport LNG Basin. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

          List of Subjects in 33 CFR Part 165
          Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

        For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

          PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
          1. The authority citation for part 165 continues to read as follows:

            Authority:
             33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

          2. Amend § 165.814 as follows:
          a. Remove paragraph (b) and redesignate paragraph (c) as (b);
          b. Add paragraph (a)(5)(iii) and revise redesignated paragraph (b)(2) to read as follows:

            § 165.814
            Security Zone; Captain of the Port Houston-Galveston Zone.
            (a) * * *
            (5) * * *
            (iii) The Freeport LNG Basin containing all waters shoreward of a line drawn between the eastern point at latitude 28°56′25″ N., 095°18′13″ W., and the western point at 28°56′28″ N., 095°18′31″ W. east towards the jetties.
            (b) * * *
            (2) Other persons or vessels requiring entry into a zone described in this section must request express permission to enter from the Captain of the Port Houston-Galveston, or designated representative. The Captain of the Port Houston-Galveston's designated representatives are any personnel granted authority by the Captain of the Port Houston-Galveston to receive, evaluate, and issue written security zone entry permits, or the designated on-scene U.S. Coast Guard patrol personnel described in paragraph (b)(4).

            Dated: February 18, 2009.
            William J. Diehl,
            Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.

      [FR Doc. E9-9991 Filed 4-29-09; 8:45 am]
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