        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R04-OAR-2006-0042-200715; FRL-8443-4]
        Approval and Promulgation of Implementation Plans Tennessee; Approval of Revisions to the Tennessee SIP and the Nashville/Davidson County Portion of the Tennessee SIP; Prevention of Significant Deterioration and Nonattainment New Source Review

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Tennessee on February 23, 2006, and May 31, 2006. The proposed revisions modify Tennessee's and Nashville/Davidson County's Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) regulations in the SIP to address changes to the federal NSR regulations, which were promulgated by EPA on December 31, 2002 (67 FR 80186) and reconsidered with minor changes on November 7, 2003 (68 FR 63021) (collectively, these two final actions are called the “2002 NSR Reform Rules”). EPA's 2002 NSR Reform Rules, proposed for inclusion in the Tennessee SIP and the Nashville/Davidson County portion of the Tennessee SIP, contain provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plant-wide applicability limits, and recordkeeping and reporting requirements.

          DATES:
          Comments must be received on or before August 22, 2007.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R04-OAR-2006-0042, by one of the following methods:
          1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          2. E-mail:
            adams.yolanda@epa.gov.

          3. Fax: 404-562-9019.
          4. Mail: “EPA-R04-OAR-2006-0042,” Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
          5. Hand Delivery or Courier: Ms. Yolanda Adams, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

            Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2006-0042. 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 through http://www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. 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. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            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 at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          For information regarding the Tennessee State Implementation Plan, contact Mr. James Hou, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8965. Mr. Hou can also be reached via electronic mail at hou.james@epa.gov. For information regarding New Source Review, contact Ms. Yolanda Adams, Air Permits Section, at the same address above. The telephone number is (404) 562-9214. Ms. Adams can also be reached via electronic mail at adams.yolanda@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document, references to “EPA,” “we,” “us,” or “our,” are intended to mean the Environmental Protection Agency. The supplementary information is arranged as follows:

          I. What action is EPA proposing today?
          II. Why is EPA proposing this action?
          III. What is EPA's Analysis of Tennessee's and Nashville/Davidson County's NSR Rule Revisions?
          IV. What action is EPA taking today?
          V. Statutory and Executive Order Reviews

        I. What action is EPA proposing today?
        On February 23, 2006, and May 31, 2006, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), submitted revisions to the Tennessee SIP, and the Nashville/Davidson County portion of the Tennessee SIP. Nashville/Davidson County is separately authorized to implement and enforce the NSR program in that region of Tennessee. The February 23, 2006, SIP submittal consists of revisions to the Tennessee Air Pollution Control Regulations. Specifically, the proposed SIP revisions include changes to TDEC Rule .01 of chapter 1200-3-9 entitled, “Construction Permits.” The May 31, 2006, submittal consists of revisions to the Nashville Pollution Control Division's (NPCD's) Regulation 3 entitled, “New Source Review.” TDEC submitted these revisions in response to EPA's December 31, 2002, revisions to the Federal NSR program.

        In a letter to EPA dated April 16, 2007, Tennessee requested to amend the February 23, 2006, SIP submittal in light of the decision issued by the U.S. Circuit Court of Appeals for the District of Columbia Circuit (DC Circuit Court) on June 24, 2005. The June 24, 2005, decision is discussed in further detail below. Tennessee requested that the portion of the Tennessee SIP revision related to the EPA rules that were vacated by the DC Circuit Court (specifically the clean unit and pollution control project provisions) not be approved into the SIP. The affected portions of the February 23, 2006, submittal are as follows: sections (b)2.(i)(VIII), (b)4.(iii)(III), (b)4.(vi)(IV), (b)35., (b)39., (c)4.(v), (c)6., (p), (q), and (r) of Rule 1200-3-9-.01(4); sections (b)1.(v)(III)VIII, (b)1.(vi)(III)III, (b)1.(vi)(V)V, (b)1.(xxxvii), (b)1.(xli), (b)2.(v)(IX), (b)2.(v)(X), (b)2.(xvi), (b)2.(xix), (b)7., (b)8., and (b)9. of Rule 1200-3-9-.01(5); and all references to clean units and pollution control projects at sections (a)11. and (c)4.(vi) of Rule 1200-3-9-.01(4); and sections (b)2.(xvii) and (b)5. of Rule 1200-3-9-.01(5). EPA is now proposing to approve the SIP revisions submitted by TDEC on February 23, 2006, May 31, 2006, and April 16, 2007, which will revise the Tennessee SIP and the Nashville/Davidson County portion of the Tennessee SIP.
        II. Why is EPA proposing this action?
        On December 31, 2002, EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air Act's (CAA or Act) PSD and NNSR programs (67 FR 80186). On November 7, 2003, EPA published a notice of final action on the reconsideration of the December 31, 2002, final rule changes (68 FR 63021). In that November 7, 2003, final action, EPA added the definition of “replacement unit,” and clarified an issue regarding plantwide applicability limitations (PALs). The December 31, 2002, and the November 7, 2003, final actions are collectively referred to as the “2002 NSR Reform Rules.” The purpose of this action is to propose to approve the SIP submittals from the State of Tennessee, which include the provisions of EPA's 2002 NSR Reform Rules.
        The 2002 NSR Reform Rules are part of EPA's implementation of Parts C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the PSD program, which applies in areas that meet the National Ambient Air Quality Standards (NAAQS)—“attainment” areas—as well as in areas for which there is insufficient information to determine whether the area meets the NAAQS—“unclassifiable” areas. Part D of title I of the CAA, 42 U.S.C. 7501-7515, is the NNSR program, which applies in areas that are not in attainment of the NAAQS—“nonattainment” areas. Collectively, the PSD and NNSR programs are referred to as the “New Source Review” or NSR programs. EPA regulations implementing these programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix S.
        The CAA's NSR programs are preconstruction review and permitting programs applicable to new and modified stationary sources of air pollutants regulated under the CAA. The NSR programs of the CAA include a combination of air quality planning and air pollution control technology program requirements. Briefly, section 109 of the CAA, 42 U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public health and secondary NAAQS to protect public welfare. Once EPA sets those standards, states must develop, adopt, and submit to EPA for approval, a SIP that contains emissions limitations and other control measures to attain and maintain the NAAQS. Each SIP is required to contain a preconstruction review program for the construction and modification of any stationary source of air pollution to assure that the NAAQS are achieved and maintained; to protect areas of clean air; to protect air quality related values (such as visibility) in national parks and other areas; to assure that appropriate emissions controls are applied; to maximize opportunities for economic development consistent with the preservation of clean air resources; and to ensure that any decision to increase air pollution is made only after full public consideration of the consequences of the decision.

        The 2002 NSR Reform Rules made changes to five areas of the NSR programs. In summary, the 2002 Rules: (1) Provide a new method for determining baseline actual emissions; (2) adopt an actual-to-projected-actual methodology for determining whether a major modification has occurred; (3) allow major stationary sources to comply with plant-wide applicability limits to avoid having a significant emissions increase that triggers the requirements of the major NSR program; (4) provide a new applicability provision for emissions units that are designated clean units; and (5) exclude pollution control projects (PCPs) from the definition of “physical change or change in the method of operation.” On November 7, 2003, EPA published a notice of final action on its reconsideration of the 2002 NSR Reform Rules (68 FR 63021), which added a definition for “replacement unit” and clarified an issue regarding PALs. For additional information on the 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

        After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), industry, state, and environmental petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005, the D.C. Circuit Court issued a decision on the challenges to the 2002 NSR Reform Rules. New York v. United States, 413 F.3d 3 (DC Cir. 2005). In summary, the DC Circuit Court vacated portions of the rules pertaining to clean units and pollution control projects, remanded a portion of the rules regarding recordkeeping, e.g. 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did not comment on the other provisions included as part of the 2002 NSR Reform Rules. On March 8, 2007, EPA issued a proposed rule in response to the Court's remand regarding the recordkeeping provisions. The proposed rule describes two alternative options to clarify what constitutes “reasonable possibility” and when the “reasonable possibility” recordkeeping requirements apply (72 FR 10445). The “reasonable possibility” standard identifies for sources and reviewing authorities the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. Further, on June 13, 2007, EPA took final action to revise the 2002 NSR Reform Rules to exclude the portions that were vacated by the DC Circuit Court (72 FR 32526). Today's action on the Tennessee SIP is consistent with the decision of the DC Circuit Court because Tennessee's submittals do not include any portions of the 2002 NSR Reform Rules that were vacated as part of the June 2005 decision.

        The 2002 NSR Reform Rules require that state agencies adopt and submit revisions to their SIP permitting programs implementing the minimum program elements of the 2002 NSR Reform Rules no later than January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i), state agencies are now required to adopt and submit SIP revisions within 3 years after new amendments are published in the Federal Register.) State agencies may meet the requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with different but equivalent regulations. However, if a state decides not to implement any of the new applicability provisions, that state is required to demonstrate that its existing program is at least as stringent as the federal program.

        On February 23, 2006, May 31, 2006, and April 16, 2007, the State of Tennessee submitted SIP revisions for the purpose of revising the State's and Nashville/Davidson County's NSR permitting provisions. These changes were made primarily to adopt EPA's 2002 NSR Reform Rules. As discussed in further detail below, EPA believes the revisions contained in the Tennessee submittals are approvable for inclusion into the Tennessee SIP and the Nashville/Davidson County portion of the Tennessee SIP.
        III. What is EPA's Analysis of Tennessee's and Nashville/Davidson County's NSR Rule Revisions?
        Tennessee and Nashville/Davidson County currently have SIP-approved NSR programs for new and modified stationary sources. EPA is proposing to approve revisions to Tennessee's and Nashville/Davidson County's existing NSR regulations in the SIP. The Tennessee proposed revisions became state-effective on February 14, 2006, and were submitted to EPA on February 23, 2006. The Nashville/Davidson County proposed revisions were approved by the Air Pollution Control Board of the State of Tennessee on May 10, 2006, and were submitted to EPA on May 31, 2006. Copies of the revised rules, as well as the State's Technical Support Documents, can be obtained from the Docket, as discussed in the “Docket” section above. A discussion of the specific changes to TDEC's and NPCD's rules that are proposed for inclusion in the SIP are summarized below.
        TDEC's Rule 1200-3-9-.01(4) contains the preconstruction review program that provides for the PSD of ambient air quality as required under Part C of title I of the CAA. NPCD's Regulation 3 contains Nashville/Davidson County's PSD program. The PSD program applies to major stationary sources or modifications constructed in areas that are designated as attainment or unclassifiable with respect to the NAAQS. TDEC's PSD program was originally approved into the SIP by EPA on April 24, 1980, and has been revised several times. NPCD's PSD program was originally approved into the Nashville/Davidson County portion of the Tennessee SIP on June 24, 1982, and has been revised several times as well.
        TDEC's permitting requirements for major sources in or impacting upon nonattainment areas are set forth at Rule 1200-3-9-.01(5). NPCD's NNSR requirements are set forth at Regulation 3. The Tennessee NNSR program was originally approved into the Tennessee SIP on June 7, 1979, with subsequent amendments. The Nashville NNSR program was originally approved into the Nashville/Davidson County portion of the Tennessee SIP on June 24, 1982, with subsequent amendments. The NNSR requirements apply to the construction and modification of any major stationary source of air pollution in a nonattainment area, as required by Part D of title I of the CAA. To receive approval to construct, a source that is subject to these requirements must show that it will not cause a net increase in pollution, will not create a delay in meeting the NAAQS, and that the source will install and use control technology that achieves the lowest achievable emissions rate.
        The current revisions to TDEC's Rule 1200-3-9-.01, and NPCD's Regulation 3, which EPA is proposing to approve into the Tennessee SIP and the Nashville/Davidson County portion of the Tennessee SIP, were provided to update the existing provisions to be consistent with the current Federal PSD and NNSR rules, including the 2002 NSR Reform Rules. These revisions address baseline actual emissions, actual-to-projected-actual applicability tests, and PALs. State agencies may meet the requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with different but equivalent regulations. TDEC and NPCD have made one change to the Federal regulations. The definition of “baseline actual emissions,” found in parts 1200-3-9-.01(4)(b)45 and 1200-3-9-.01(5)(b)1.(xlvii) of the TDEC rule, and Section 3-1(e) of NPCD Regulation 3, was changed to remove the provision allowing different consecutive 24-month periods for different pollutants. Therefore, under TDEC's and NPCD's rules, a single 24-month period must be used for all regulated NSR pollutants when calculating baseline actual emissions. This provision was changed from the Federal requirements on the recommendation of the industry and environmental advocacy representatives in the Tennessee stakeholder group that worked with the State to develop the revisions to the Tennessee NSR program.
        As part of our review of the Tennessee SIP submittals, we performed a line-by-line review of the proposed revisions, including the provision which differs from the Federal rules, and have determined that they are consistent with the program requirements for the preparation, adoption and submittal of implementation plans for NSR set forth at 40 CFR 51.165 and 51.166. TDEC's Rule 1200-3-9-.01 and NPCD's Regulation 3 do not incorporate the portions of the Federal rules that were vacated by the DC Circuit Court, including the clean unit provisions, the pollution control projects exclusion, and the equipment replacement provision which was promulgated shortly after the 2002 NSR Reform Rules. As noted earlier, EPA responded to the DC Circuit Court's remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules by proposing two alternative options to clarify when the recordkeeping requirements apply. TDEC's and NPCD's rules contain recordkeeping requirements that are substantially the same as the remanded Federal rule. While final action by EPA with regard to the remand may require EPA to take further action on the Tennessee SIP, at this time the rules contained in the proposed SIP revisions are the same as existing Federal law and are therefore approvable.
        IV. What action is EPA taking today?
        For the reasons discussed above, EPA is proposing to approve the changes made to Tennessee's Rule 1200-3-9-.01 (Construction Permits) as submitted by TDEC on February 23, 2006, and amended on April 16, 2007, as revisions to the Tennessee SIP. In addition, EPA is proposing to approve changes made to NPCD Regulation 3 (New Source Review) as submitted by TDEC on May 31, 2006, as revisions to the Nashville/Davidson County portion of the Tennessee SIP.
        V. Statutory and Executive Order Reviews

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed 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 the proposed approvals in 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 rule proposes to 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 (Pub. L. 104-4).

        This proposed rule 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 (59 FR 22951, November 9, 2000). This 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 action merely proposes to 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 proposed rule 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 approves a sate rule implementing a Federal standard.

        In reviewing SIP submissions, EPA's role is to approve 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 a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP 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 proposed rule does 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 52
          Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

          Dated: July 12, 2007.
          J.I. Palmer, Jr.,
          Regional Administrator, Region 4.

      [FR Doc. E7-14171 Filed 7-20-07; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 130114034-3034-01]
        RIN 0648-BC93
        Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 2013 Tribal Fishery for Pacific Whiting

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule for the 2013 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would establish a formula, specifically [17.5 percent * (U.S. Total Allowable Catch)] plus 16,000 metric tons (mt), for determining the Pacific whiting tribal allocation for 2013 for Pacific Coast Indian tribes that have a Treaty right to harvest groundfish.

          DATES:
          Comments on this proposed rule must be received no later than April 4, 2013.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2013-0013 by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0013; click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Kevin C. Duffy.
          • Fax: 206-526-6736, Attn: Kevin C. Duffy.

            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 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). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:

          Kevin C. Duffy (Northwest Region, NMFS), phone: 206-526-4743, fax: 206-526-6736 and email: kevin.duffy@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Electronic Access

        This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at  https://www.federalregister.gov. Background information and documents are available at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish/Groundfish-Fishery- Management/Whiting-Management and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

        Background
        The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area covered by the FMP request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” The procedures NOAA employs in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures. The Council's groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP.
        Since 1996, NMFS has been allocating a portion of the U.S. total allowable catch (TAC) (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.
        To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation every year since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been made in consideration of their participation in the fishery. In 2008 the Quileute Tribe and Quinault Indian Nation expressed an interest in commencing participation in the whiting fishery. Tribal allocations for 2009-2012 were based on discussions with all three tribes regarding their intent for those fishing years. The table below provides a history of U.S. OYs/ACLs and the annual tribal allocation in metric tons (mt).

            Year
            U.S. OY
            Tribal allocation

            2000
            232,000 mt
            32,500 mt.

            2001
            190,400 mt
            27,500 mt.

            2002
            129,600 mt
            22,680 mt.

            2003
            148,200 mt
            25,000 mt.

            2004
            250,000 mt
            32,500 mt.

            2005
            269,069 mt
            35,000 mt.

            2006
            269,069 mt
            32,500 mt.

            2007
            242,591 mt
            35,000 mt.

            2008
            269,545 mt
            35,000 mt.

            2009
            135,939 mt
            50,000 mt.

            2010
            193,935 mt
            49,939 mt.

            2011
            290,903 mt
            66,908 mt.

            2012
            186,037 mt TAC 1

            48,556 mt.

            1 Beginning in 2012, the United States started using the term Total Allowable Catch, based on the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting.

        In exchanges between NMFS and the tribes during December 2012, and again in January, 2013, the Makah and Quileute tribes indicated their intent to participate in the tribal whiting fishery in 2013. The Quinault Indian Nation indicated that they are not planning to participate in 2013, but reserved the right to participate if circumstances changed. The Hoh tribe has not expressed an interest in participating to date.

        Since 2008, NMFS and the co-managers, including the States of Washington and Oregon, as well as the Treaty tribes, have been involved in a process designed to determine the long-term tribal allocation for Pacific whiting. At the September 2008 Council meeting, NOAA, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NOAA would provide to the tribes and states of Washington and Oregon a summary of the current scientific information regarding whiting, receive comment on the information and possible analyses that might be undertaken, and then prepare analyses of the information to be used by the co-managers (affected tribes, affected states, and NMFS) in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the co-managers on a long-term tribal allocation for incorporation into the Council's planning process for the 2010 season. An additional purpose was to provide the tribes the time and information to develop an inter-tribal allocation or other necessary management agreement. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers met in 2009 and discussed this preliminary information.
        In 2010, NMFS finalized the report summarizing scientific information available on the migration and distribution of Pacific whiting on the West Coast. In addition, NMFS responded in writing to requests from the tribes for clarification on the paper and requests for additional information. NMFS also met with each of the tribes in the fall of 2010 to discuss the report and to discuss a process for negotiation of the long-term tribal allocation of Pacific whiting.
        In 2011, NMFS again met individually with the Makah, Quileute, and Quinault tribes to discuss these matters. Due to the detailed nature of the evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process continued in 2012 and will not be completed prior to the 2013 Pacific whiting fishery; thus the tribal allocation of whiting for 2013 will not reflect a negotiated long-term tribal allocation. Instead, it is an interim allocation not intended to set precedent for future allocations.
        Tribal Allocation for 2013
        It is necessary to propose a range for the tribal allocation, rather than a specific allocation amount, because the specific allocation depends on the amount of the coastwide TAC (United States plus Canada) and corresponding U.S. TAC for 2013 (73.88% of the coastwide TAC). The Joint Management Committee (JMC), which was established pursuant to the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2013.
        In order for the public to have an understanding of the potential tribal whiting allocation in 2013, NMFS is using the range of U.S. TACs over the last ten years, 2003 through 2012, to project a range of potential tribal allocations for 2013. This range of TACs is 148,200 mt (2003) to 290,903 mt (2011).
        As described above, the Makah tribe and Quileute Indian Nation have stated their intent to participate in the Pacific whiting fishery in 2013. The Makah tribe has requested 17.5% of the U.S. TAC, and the Quileute Indian Nation has requested 16,000 mt. Accommodating both requests results in a formula [17.5 percent* (U.S. TAC)] + 16,000 mt for application to the range of TACs. Application of this formula to the range of U.S. TACs over the last ten years results in a tribal allocation of between 41,935 and 66,906 mt for 2013. At the lower end of the range of U.S. TACs, this tribal allocation would represent 28 percent of the U.S. TAC, and at the higher end of the range, this tribal allocation would represent 23 percent of the U.S. TAC. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that these percentages are within the range of the tribal treaty right to Pacific whiting.
        As described earlier, NOAA Fisheries proposes this rule as an interim allocation for the 2013 tribal Pacific whiting fishery. As with past allocations, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.

        The rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).
        Classification
        NMFS has preliminarily determined that the management measures for the 2013 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.

        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS and is published on the NMFS Web site under Groundfish Management (see ADDRESSES).
        Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration has established size criteria for all different industry sectors in the U.S., including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts less than $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is a business with annual receipts less than $7.0 million. For nonprofit organizations, the RFA defines a small organization as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

        For the years 2007 to 2011, the total whiting fishery (tribal and non-tribal) has averaged harvests of 199,000 mt annually, worth $37 million in terms of ex-vessel revenues. As the U.S. OY/ACL has been highly variable during this time, so have harvests. During this period, harvests have ranged from 122,000 mt (2009) to 248,000 mt (2008). In 2011, the harvest was approximately 231,000 mt. Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $16 million (2009) to $58 million (2008). Ex-vessel revenues in 2011 were about $53 million.
        The prices for whiting are largely determined by the world market for groundfish, because most of the whiting harvested is exported. Average ex-vessel price for trawl harvested whiting in 2011 was $230 per mt. For 2012, average ex-vessel prices increased to $309 per mt, leading to $49 million in ex-vessel revenues based on total harvests of about 160,000 mt. Note that the use of ex-vessel values does not take into account the wholesale or export value of the fishery or the costs of harvesting and processing whiting into a finished product. NMFS does not have sufficient information to make a complete assessment of these values.
        The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low ex-vessel prices per pound. This fishery also has seasonal aspects based on the distribution of whiting off the west coast.
        Since 1996, there has been a tribal allocation of the U.S. whiting TAC. There are four tribes associated with the whiting fishery: Hoh, Makah, Quileute, and Quinault.
        This rule would establish the formula for determining 2013 interim tribal allocation. The alternatives are “No-Action” vs. the “Proposed Action.” The proposed allocation, based on discussions with the tribes, is for NMFS to allocate between 28 percent and 23 percent of the U.S. total allowable catch for 2013. NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights, and the participating tribe has on occasion shown an ability to harvest the amount of whiting requested. A higher allocation would, arguably, also be within the scope of the treaty right. However, a higher allocation would unnecessarily limit the non-tribal fishery. A no-action alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2013, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there are tribal requests for allocations in 2013, this alternative received no further consideration.
        This proposed rule would affect how whiting is allocated to the following sectors/programs: Tribal, Shorebased Individual Fishing Quota (IFQ) Program—Trawl Fishery, Mothership Coop (MS) Program—Whiting At-sea Trawl Fishery, and Catcher-Processor (C/P) Coop Program—Whiting At-sea Trawl Fishery. The amount of whiting allocated to these sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the other three sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.
        The shorebased IFQ fishery is managed with individual fishing quotas for most groundfish species, including whiting. Annually quota pounds (QP) are allocated from the shorebased sector allocation based on the individual quota shares (QS) of each QS owner. (QP is expressed as a weight and QS is expressed as a percent of the shorebased allocation for a given species or species group.) QP may be transferred from a QS account to a vessel account or from one vessel account to another vessel account. Vessel accounts are used to track how QP is harvested (landings and discards) by limited entry trawl vessels of all IFQ species/species groups. Shorebased IFQ catch must be landed at authorized first receiver sites.

        The IFQ whiting quota shares (QS) were allocated to a mixture of limited entry permit holders and shorebased processors. One non-profit organization received quota share based on the ownership of multiple limited entry permits. The MS coop sector can consist of one or more coops and a non-coop subsector. For a MS coop to participate in the Pacific whiting fishery, it must be composed of MS catcher-vessel (MS/CV) endorsed limited entry permit owners. Each permitted MS coop is authorized to harvest a quantity of Pacific whiting based on the sum of the catch history assignments for each member's MS/CV-endorsed permit identified in the NMFS-accepted coop agreement for a given calendar year. Each MS/CV endorsed permit has an allocation of Pacific whiting catch based on its catch history in the fishery. The catch history assignment (CHA) is expressed as a percentage of Pacific whiting of the total MS sector allocation. Currently the MS sector is composed of only a single coop. (Shorebased IFQ QS and MS sector CHA are not scheduled to begin trading until 2014, pending resolution of the Pacific Dawn v Bryson litigation where the rules used to allocate whiting QS and CHA are being challenged.)
        The C/P coop program is a limited access program that applies to vessels in the C/P sector of the Pacific whiting at-sea trawl fishery and is a single voluntary coop. Unlike the MS coop regulations, where multiple coops can be formed around the catch history assignments of each coop's member's endorsed permit, the single C/P coop receives the total Pacific whiting allocation for the catcher/processor sector. Only C/P endorsed limited entry permits can participate in this coop. Currently, the shorebased IFQ Program is composed of 138 QS permits/accounts, 142 vessel accounts, and 50 first receivers. The mothership coop fishery is currently composed of a single coop, with six mothership processor permits, and 36 MS/CV endorsed permits, with one permit having two catch history assignments endorsed to it. The C/P coop is composed of 10 catcher-processor permits owned by three companies. There are four tribes that can participate in the tribal whiting fishery. The current tribal fleet is composed of 5 trawlers that either deliver to a shoreside plant or to a contracted mothership.
        Participants in the whiting fishery include fish harvesting companies, fish processing companies, companies involved in both harvesting and processing of seafood products such as catcher-processors, organizations, and governmental jurisdictions.

        These regulations directly affect IFQ Quota share holders who determine which vessel accounts receive QP, holders of mothership catcher-vessel-endorsed permits who determine how many co-ops will participate in the fishery and how much fish each co-op is to receive, and the catcher-processor co-op which is made up of three companies that own the catcher-processor permits. As part of the permit application processes for the non-tribal fisheries, based on a review of the SBA size criteria, applicants are asked if they considered themselves a “small” business, and they are asked to provide detailed ownership information. Although there are three non-tribal sectors, many companies participate in two or more of these sectors. All mothership catcher-vessel participants participate in the shorebased IFQ sector, while two of the three catcher-processor companies also participate in both the shorebased IFQ sector and in the MS sector. Many companies own several QS accounts. After accounting for cross participation, multiple QS account holders, and for affiliation through ownership, there are 100 non-tribal entities directly affected by these proposed regulations, 82 of which are considered to be “small” businesses. These regulations also directly affect tribal whiting fisheries. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the four tribes and their fleets are considered “small” entities.

        This rule will allocate fish between tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) and non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries undertake a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportioning process. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, last year, NMFS did such a reapportionment. On, October 4, 2012, NMFS announced: “The best available information on October 2, 2012 indicates that at least 28,000 mt of the tribal allocation of 48,556 mt for the 2012 tribal Pacific whiting fishery will not be used by December 31, 2012. Recent conversations with tribal fishery managers indicate that reapportioning 28,000 mt, leaving a tribal allocation of 20,556 mt, will not limit tribal harvest opportunities for the remainder of year. Tribal harvests to date amount to less than 1,000 mt. In addition, the Quileute Tribe has not entered the fishery to date. Even if the Quileute Tribe enters the fishery, the remaining tribal allocation following reapportionment will allow for their participation.” This reapportioning process allows unharvested tribal allocations of whiting to be fished by the non-tribal fleets, benefitting both large and small entities. See ADDRESSES.
        NMFS believes this proposed rule would not adversely affect small entities. Nonetheless, NMFS has prepared this IRFA and is requesting comments on this conclusion.
        There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
        No Federal rules have been identified that duplicate, overlap, or conflict with this action.
        NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
        NMFS issued a Supplemental Biological Opinion on March 11, 2006 concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
        On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concludes that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.
        As Steller sea lions and humpback whales are also protected under the Marine Mammal Protection Act (MMPA), incidental take of these species from the groundfish fishery must be addressed under MMPA section 101(a)(5)(E). On February 27, 2012, NMFS published notice that the incidental taking of Steller sea lions in the West Coast groundfish fisheries is addressed in NMFS' December 29, 2010 Negligible Impact Determination (NID) and this fishery has been added to the list of fisheries authorized to take Steller sea lions (77 FR 11493). NMFS is currently developing MMPA authorization for the incidental take of humpback whales in the fishery.
        On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat.

        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule.

          List of Subjects in 50 CFR Part 660
          Fisheries, Fishing, Indian fisheries.

          Dated: February 27, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.

        2. In § 660.50, paragraph (f)(4) is revised to read as follows:

          § 660.50
          Pacific Coast treaty Indian fisheries.

          (f) * * *
          (4) Pacific whiting. The tribal allocation for 2013 will be 17.5 percent of the U.S. TAC plus 16,000 mt.

      [FR Doc. 2013-04922 Filed 3-4-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 070209029-7029-01; I.D. 112906A]
        RIN 0648-AU58
        Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Observer Program

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues a proposed rule to amend regulations implementing the North Pacific Groundfish Observer Program (Observer Program). This action is necessary to avoid expiration of these regulations on December 31, 2007, and ensure uninterrupted observer coverage in North Pacific groundfish fisheries. The proposed rule is intended to promote the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs).

          DATES:
          Written comments must be received by March 23, 2007.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Comments may be submitted by any of the following methods:
          • Mail: to P.O. Box 21668, Juneau, AK 99802;
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK, 99802;
          • Fax: (907) 586-7557;
          • E-mail: 0648-AU58obs@noaa.gov. Include in the subject line of the email the following identifier: Observer Program Extension 0648-AU58. E-mail comments, with or without attachments, are limited to five megabytes; or
          • Webform at the Federal e-Rulemaking Portal: http://www.regulations.gov.
          Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from the mailing address above or by calling the Sustainable Fisheries Division, Alaska Region, NMFS, at 907-586-7228.

          FOR FURTHER INFORMATION CONTACT:
          Jason Anderson, 907-586-7228, or jason.anderson@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        NMFS manages the U.S. groundfish fisheries of the Bering Sea and Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) in the Exclusive Economic Zone (EEZ) under the FMPs. The North Pacific Fishery Management Council (Council) has prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
        Groundfish fisheries in the GOA and BSAI are managed under quotas set annually for groundfish species and for several other species that groundfish fishery participants are prohibited from retaining. Management programs under the FMPs allocate specific quotas among areas, seasons, gear types, processor and catcher vessel sectors, cooperatives, and individual fishermen. Annual quotas are based on NMFS stock assessments and Council recommendations. The Alaska Region NMFS is responsible for monitoring the catch of these quotas, and for closing the fisheries when quotas are reached. Stock assessments, quota monitoring, and management require an accounting for all groundfish and prohibited species catch, including discarded catch.
        Observer requirements for fisheries off Alaska have been in place since the mid-1970s, when the Magnuson Fishery Conservation and Management Act (re-authorized in 1996 as the Magnuson-Stevens Act) was implemented and NMFS began to monitor U.S. EEZ foreign groundfish fisheries. The Secretary of Commerce (Secretary) and the Council recognized that living marine resources cannot be effectively managed without the types of information that are either available only or most efficiently through an observer program. Therefore, when foreign vessel fisheries ended in 1991, the Council developed and the Secretary approved a domestic Observer Program that authorized the placement of observers on domestic fishing vessels and at shoreside processing plants participating in Alaskan groundfish fisheries. The domestic Observer Program was implemented through Amendment 18 to the GOA FMP and Amendment 13 to the BSAI FMP (54 FR 50386, December 6, 1989, and 55 FR 4839, February 12, 1990). Observer coverage requirements have remained mostly unchanged since approval of the program.
        The current Observer Program has an integral role in the management of North Pacific fisheries. The information collected by observers provides the best available scientific information for managing the fisheries and developing measures to minimize bycatch in furtherance of the purposes and national standards of the Magnuson-Stevens Act. Observers collect catch data used by managers for quota monitoring and management of groundfish and prohibited species, biological data and samples used by scientists for stock assessment analyses, information used by managers to document and reduce fishery interactions with protected resources, and information and samples used by scientists in marine ecosystem research. The Observer Program also provides information, analyses, and support in the development of proposed policy and management measures. Further, observers interact with the fishing industry on a daily basis and the Observer Program strives to promote constructive communication between the agency and interested parties. Observations are used by managers and enforcement personnel to document the effectiveness of the management programs of various entities, including NMFS, the U.S. Coast Guard, and the U.S. Fish and Wildlife Service.

        High quality observer data are a cornerstone of Alaska groundfish fisheries management. However, the quality and utility of observer data suffer due to the current structure of procuring and deploying observers. Under the current program, coverage levels vary with the size of the vessel or the quantity of fish processed. Vessel owners and operators choose when and where to carry observers, and fishery managers do not control when and where observers are deployed. To address these concerns, the Council directed NMFS to develop an alternate program structure. Since the early 1990's, the Council and NMFS have explored alternative program structures as part of three separate actions. However, the Council identified problems with each of these actions and none were adopted. While the Council was developing and considering options for an alternate program structure, the Council recommended, and the Secretary approved, several extensions of the Observer Program regulations. A thorough discussion of the history of the Observer Program, including past efforts to restructure and extend the Observer Program, is provided in the EA/RIR/IRFA prepared for this action (see ADDRESSES), and is not repeated here.
        In October 2002, the Council tasked its observer advisory committee (OAC) to develop a problem statement and alternatives for restructuring the Observer Program. In April 2003, the Council adopted a suite of alternatives that contemplated restructuring the Observer Program in a stepwise approach, beginning in the GOA. However, as NMFS began evaluating these alternatives, it became apparent that certain operational and data quality issues would be difficult to resolve in a revised program under which NMFS contracted directly with observers for observer services in the GOA, but retained the current system for procuring observer services in the BSAI.
        From December 2003 through June 2005, the Council refined the suite of alternatives, and in June 2005 adopted the current alternatives for analysis. These alternatives include options to restructure the Observer Program for all groundfish and halibut vessels fishing in the GOA only, for halibut vessels and certain sectors fishing in both the GOA and BSAI, and for all groundfish and halibut fisheries. Shoreside and stationary floating processors were included under each alternative depending on their location and management program. In addition to the “no-action” alternative under which the Observer Program would expire, the Council also asked staff to analyze an alternative that would remove the December 31, 2007, expiration date and continue current observer coverage regulations without an expiration date.
        While the Council intended to adopt a preferred alternative by January 1, 2008, several issues arose during the course of analysis of the alternatives that has made this difficult. First, due to uncertainty about the applicability of overtime pay provisions of the Fair Labor Standards Act to contracted observers, staff were unable to adequately analyze observer costs under any of the restructure alternatives. Second, the Research Plan authority to assess a fee for observer coverage could not be exclusively applied to a subset of the North Pacific groundfish fisheries vessels. Therefore, all the action alternatives except Alternative 2 (extension of the current program) required new statutory authorization for fee collection from a portion of the fleet or to implement different fee mechanisms for different sectors, as were considered in the analysis.
        Because observer costs cannot be adequately calculated and the uncertainty that Congress would authorize fee collection, NMFS recommended that the Council adopt Alternative 2 as its preferred alternative. The Council concurred and adopted Alternative 2 at its February 2006 meeting. The Council also amended the problem statement to reflect that, while Alternative 2 does not address most of the issues in the problem statement, it ensures Observer Program viability, and the continued collection of information necessary to manage the North Pacific fisheries. While the costs of the restructuring alternatives cannot be adequately calculated at this time, the analysis prepared for this action includes restructuring alternatives to provide context to the Council's adoption of Alternative 2.
        Expiration of the Observer Program would result in significant costs to groundfish fishery participants. Without data collected by observers, NMFS would be forced to adopt a much more conservative approach towards managing the groundfish fisheries of the GOA and BSAI. Such an approach could lead to early fisheries closures because there would be no observer data for total allowable catch (TAC) and prohibited species catch limit calculations. NMFS would likely rely on more population models to generate allowable biological catch and TAC recommendations. In addition, failure to maintain a groundfish observer program in the North Pacific would violate the terms of a variety of statutes, including the Endangered Species Act (ESA). The ESA requires observer coverage as a reasonable and prudent measure for certain management actions. These are non-discretionary measures under current biological opinions and are prescribed under the incidental take statements for endangered marine mammals, salmon, and seabirds.
        Also in June 2006, the Council decided it would consider a new amendment proposing restructuring alternatives for the Observer Program when (1) legislative authority is established for fee-based alternatives; (2) the cost issues described above are clarified (by statute, regulation, or guidance) to allow estimated costs associated with the fee-based alternatives; or (3) the Council responds to changes in conditions that cannot be anticipated now.
        On January 12, 2007, the President signed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Pub. Law No. 109-479). The reauthorized Magnuson-Stevens Act includes language that would appear to allow the Council to adopt a fee collection program as considered in the analysis. However, the exact nature of the fee program authorized by the Magnuson-Stevens Act must be determined, the Council must consider a new amendment to restructure the current Observer Program, and NMFS must undergo rulemaking to implement a new Observer Program. Therefore, implementing a fee collection and restructured Observer Program prior to the December 31, 2007, expiration date would be difficult. Additionally, the observer cost issues described above remain unresolved.
        Revisions to Observer Program Regulations
        For the reasons described above, NMFS proposes to remove the December 31, 2007, expiration date from the heading of 50 CFR 679.50 and from regulations at § 679.50(j)(1)(vi). The current Observer Program would continue until the Council recommends and the Secretary approves and implements further action to amend the program. Continuation of the current Observer Program is necessary to prevent interruption of many current management programs.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        NMFS prepared an IRFA as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives and legal basis for this action are contained in the preamble and are not repeated here. A copy of the IRFA is available from NMFS (see ADDRESSES). A summary of the analysis follows.
        This proposed rule would extend the effective date of regulations governing the Observer Program beyond December 31, 2007, the current expiration date. Extending the Observer Program beyond December 31, 2007, is necessary for uninterrupted continuation of many of the current management programs. The entities that would be directly regulated by this proposed action are groundfish and halibut harvesters and processors of the BSAI and GOA EEZ. These entities include the halibut vessels, groundfish catcher vessels, groundfish catcher processor vessels, and shoreside processors active in these areas. It also includes organizations to which direct allocations of groundfish are made, such as the BSAI community development quota (CDQ) groups and the American Fisheries Act (AFA) fishing sectors.

        The IRFA identified the following small entities that would be impacted by this rule. Based on 2005 data, 23 of the 87 catcher/processors active in the North Pacific groundfish fisheries would be considered small entities. All five North Pacific observer provider companies and the six CDQ groups would be considered small entities. Estimates of the number of shoreside processors that are small entities include all Alaska processors that reported processing groundfish to NMFS in 2002. Due to insufficient ownership and affiliation information, it is not possible, at this time, to determine how many of the 73 shoreside processors qualify as small entities. However, at least eight shoreside processors would be considered large entities because of American Fisheries Act (AFA) affiliations. Finally, 807 groundfish and halibut catcher vessels have gross revenues less than $4 million, and would be considered small entities.
        Alternative 1 is the no action alternative. Under this alternative, the current Observer Program would continue to be the only system under which groundfish observers would be provided in the BSAI and GOA groundfish fisheries. Regulations authorizing the current program expire at the end of 2007.
        No additional recordkeeping and reporting requirements are associated with this action.
        Alternative 2 is the preferred alternative, and would extend the existing program. Under this alternative, the 2007 sunset date for the existing program would be removed and the program would be extended indefinitely with no changes to the overall service delivery model until the Council took further action.
        Alternative 3 would restructure the Observer Program for GOA groundfish and all halibut fisheries, while BSAI groundfish fisheries would be administered under the current system. A new ex-vessel value fee program would be established to fund coverage for GOA groundfish vessels, GOA-based processors, and halibut vessels operating throughout Alaska. Regulations that divide the fleet into zero, 30 percent, and 100 percent coverage categories would no longer apply to vessels and processors in the GOA. Fishermen and processors would no longer be responsible for obtaining their own observer coverage. Rather, NMFS would determine when and where to deploy observers based on data collection and monitoring needs, and would contract directly for observers using fee proceeds and/or direct Federal funding.
        Alternative 4 would restructure the Observer Program for all fisheries with coverage less than 100 percent. All vessels and processors assigned to Tiers 3 and 4 would participate in the new program throughout Alaska and pay an ex-vessel value based fee. In general, this alternative would apply to all halibut vessels, all groundfish catcher vessels less than 125 ft (38.1 m) in length overall and all non-AFA shoreside processors. All vessels and processors assigned to Tiers 1 and 2 (100 percent or greater coverage) would continue to operate under the current “pay-as-you-go” system throughout Alaska.
        Alternative 5 would restructure the Observer Program for all groundfish and halibut fisheries off Alaska. This alternative would establish a new fee-based groundfish observer program in which NMFS has a direct contract with observer providers for all GOA and BSAI groundfish and halibut vessels. Under this alternative, vessels with 100 percent or greater coverage requirements would pay a daily observer fee and vessels with coverage requirements less than 100 percent would pay an ex-vessel value based fee.
        As noted in the preamble above, Alternative 1 would result in significant costs to the fleet.
        The impacts to small entities of the Alternatives 2 through 5, expressed as a percentage of the ex-vessel value of groundfish and halibut landed, are presented in the EA/RIR/IRFA prepared for this action and are summarized here. Current observer costs expressed as a percentage of ex-vessel landed catch value can be considered a reasonable estimate of the costs to each sector of the fleet under Alternative 2 (rollover of the existing program). In the BSAI management area for the years 2000 through 2003, these costs averaged 2.54 percent for catcher/processors, 1.49 percent for catcher vessels, and 0.89 percent for all processors, including motherships. In the GOA management area for these same years, these costs averaged 1.11 percent for catcher/processors, 1.71 percent for catcher vessels, and 0.65 percent for all processors.
        Although adoption of Alternative 3, 4 or 5 would require new statutory authority that currently does not exist, adoption of any of these alternatives as presented in the EA/RIR/IRFA would require selection of a low, middle, or high ex-vessel fee percentage. Estimated costs expressed as a percentage of ex-vessel value of groundfish and halibut landings for the low, middle, and high endpoint options for Alternative 3 are 0.52 percent, 0.70 percent, and 1.05 percent, respectively. Estimated costs in terms of a percent of ex-vessel value for Alternative 4 are 0.69 percent, 0.83 percent, and 1.15 percent. Finally estimated costs in terms of a percent of ex-vessel value for Alternative 5 are 0.69 percent, 0.83 percent, and 1.15 percent.
        The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries, Reporting and recordkeeping requirements.

          Dated: February 15, 2007.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        1. The authority citation for part 679 continues to read as follows:

          Authority:
          16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 note; 3631 et seq.

        2. In § 679.50, paragraph (j)(1)(vi) is removed and the section heading is revised to read as follows:

          § 679.50
          Groundfish Observer Program.

      [FR Doc. E7-3019 Filed 2-21-07; 8:45 am]
      BILLING CODE 3510-22-S