        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 622 and 640
        [Docket No. O70717349-7570-02]
        RIN 0648-AV61
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Amendments to the Spiny Lobster Fishery Management Plans for the Caribbean and Gulf of Mexico and South Atlantic

          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 that would implement Amendment 4 to the Fishery Management Plan for the Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin Islands (Caribbean FMP) prepared by the Caribbean Fishery Management Council (Caribbean Council) and Amendment 8 to the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (Gulf and South Atlantic FMP) prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Gulf and South Atlantic Councils). This proposed rule would establish two minimum size restrictions for importation of spiny lobster into the United States -one applicable to spiny lobster imported into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands. In addition, this proposed rule would prohibit importation of egg-bearing spiny lobsters and importation of spiny lobster tail meat that is not in whole tail form with the exoskeleton attached. The intended effect of this proposed rule is to enhance the conservation of the spiny lobster resource and improve effectiveness of law enforcement related to such conservation.

          DATES:
          Written comments must be received on or before December 15, 2008.

          ADDRESSES:
          You may submit comments on the proposed rule, identified by 0648-AV61, by any of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
          • Fax: 727-824-5308; Attention: Jason Rueter.

          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, etc.) 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, WordPerfect, or Adobe PDF file formats only.

          Copies of the combined Amendments 4 and 8, which include a draft environmental impact statement (DEIS), an initial regulatory flexibility analysis (IRFA), a regulatory impact review (RIR), and a social impact assessment/fishery impact statement may be obtained from Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701 or may be downloaded from the Southeast Regional Office website at http://sero.nmfs.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:

          Jason Rueter, telephone 727-824-5305; fax 727-824-5308; e-mail jason.rueter@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The spiny lobster fishery of the Caribbean is managed under the Caribbean FMP prepared by the Caribbean Council and is implemented through regulations at 50 CFR part 622. The spiny lobster fishery of the Gulf of Mexico and South Atlantic is managed under the Gulf and South Atlantic FMP prepared by the Gulf and South Atlantic Councils and is implemented through regulations at 50 CFR part 640. Both regulations are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
        Background
        Fisheries for spiny lobster (Panulirus argus) exist throughout its range in the Caribbean and tropical western Atlantic. Foreign and U.S. scientists and fisheries managers concur that the spiny lobster stock is fully exploited or over-exploited in much of its range.
        Spiny lobster have a long (approximately 1-year) planktonic larval phase during which the larvae can be widely distributed by ocean currents over large geographic areas. Spiny lobster resources off Florida and the U.S. Caribbean are dependent, in part, on recruitment of larvae from areas in the Caribbean basin, outside the U.S. EEZ. Large quantities of spiny lobster are being harvested outside the U.S. exclusive economic zone (EEZ) at a size less than the respective continental U.S. and U.S. Caribbean minimum size limits, which are designed to prohibit harvest prior to the average size at sexual maturity. Much of this harvest outside the U.S. EEZ also involves spiny lobster less than the minimum size limits of the various foreign countries where such harvest occurs; however, enforcement has not been effective in curtailing this illegal activity.
        Large-scale harvest of sexually immature, i.e. undersized, spiny lobster outside the U.S. EEZ adversely impacts the reproductive capacity of the spiny lobster resources and subsequent recruitment throughout the Caribbean and Florida. A reduction of fishing effort on undersized, sexually immature spiny lobster and a more comprehensive and effective enforcement mechanism would increase spawning stock biomass and increase potential yield from the fisheries. Representatives of the spiny lobster seafood industry have recognized that large-scale harvest of undersized spiny lobster adversely affect the spiny lobster resource throughout large portions of its range including areas subject to U.S. jurisdiction and have asked respective governments to address the illegal harvest and exportation of undersized spiny lobster tails to the United States.
        The United States is a major importer of spiny lobster -importing over 194 million lb (88 million kg) over the past 10 years. The United States imports over 90 percent of the spiny lobster harvested in South and Central America and other Caribbean countries. The major exporters to the United States are the Bahamas, Brazil, Honduras, and Nicaragua.

        There are two main issues associated with addressing the importation of undersized spiny lobster. First is the importation of spiny lobster that are below the domestic size limits, and concurrently the mean size at sexual maturity, that were legally harvested in another nation's waters. Second is the importation of spiny lobster below the domestic size limits, that were illegally harvested in violation of harvest restrictions in other nations. This second activity is already illegal, as the Lacey Act prohibits the importation of spiny lobster harvested in violation of the laws of another nation.
        Establishing minimum sizes for imports would address both of these issues. Prohibiting the importation of spiny lobster smaller than the domestic size limits will severely limit, if not eliminate, the market for legally and illegally harvested undersized spiny lobster. This is expected to serve as an incentive for countries that do not currently have such measures to implement consistent size limits to protect juvenile spiny lobster.
        This proposed rule would also establish measures to enhance protection of egg-bearing spiny lobster and to enhance enforcement of the size requirements.
        Measures Contained in This Proposed Rule
        Minimum Size Limits for Importation of Spiny Lobster
        This proposed rule would prohibit the importation of undersized, sexually immature spiny lobster into the United States by establishing minimum tail-weight requirements. Spiny lobster are rarely, if ever, imported as whole animals, but instead are imported as frozen tails. It is estimated over 99 percent of spiny lobster product enters the U.S. in frozen-tail form. It is standard industry practice for spiny lobster destined for importation into the United States to be marketed, sorted, shipped, stored, and sold based on tail-weight categories. In addition, U.S. Customs' entry documents and the seafood industry's sales, storage and bills of lading documents typically include the tail weights (in ounces), making this measurement an effective enforcement tool to track undersized lobster, even after it enters a U.S. port.
        This proposed rule would establish two minimum size limits that would apply to importation of spiny lobster into the United States -one that would apply any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that would apply to Puerto Rico and the U.S. Virgin Islands. First, this proposed rule would prohibit any person from importing spiny lobster with less than 5 ounces (142 grams) tail weight (5 ounces (142 grams) is defined as a tail that weighs 4.2-5.4 ounces (119-153 grams)) into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands. If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster would have the burden to prove that such spiny lobster actually does satisfy the minimum tail-weight requirement or that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster would have the burden to prove that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the burden is satisfied, such spiny lobster would be considered to be in compliance with the minimum 5-ounce (142-gram) tail-weight requirement.
        Second, the proposed rule would also prohibit any person from importing into Puerto Rico or the U.S. Virgin Islands any spiny lobster of less than 6.0 ounces (170 grams) tail weight (6 ounces (170 grams) is defined as a tail that weighs 5.9-6.4 ounces (167-181 grams)). If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight, the person importing such spiny lobster would have the burden to prove that such spiny lobster actually does satisfy the minimum tail-weight requirement or that such spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster would have the burden to prove that such spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the burden is satisfied such spiny lobster would be considered to be in compliance with the minimum 6-ounce (170-gram) tail-weight requirement.
        These proposed minimum tail-weight requirements correspond to the existing minimum size limits applicable to the U.S. fisheries in the continental United States and in Puerto Rico and the U.S. Virgin Islands, respectively.
        Other Import Restrictions
        This proposed rule would also prohibit importation of spiny lobster tail meat in other than whole tail form with the exoskeleton attached and would prohibit importation of egg-bearing spiny lobster or those from which eggs or the abdominal appendages to which eggs attach (swimmerets or pleopods) have been removed or stripped. Prohibiting importation of tail meat in other than whole tail form is necessary for effective enforcement of the tail-weight (or tail-length) requirement. Because the vast majority of tail meet is imported in whole tail form, any associated adverse economic impacts are expected to be minimal and would be offset by conservation benefits. The prohibitions related to egg-bearing spiny lobster would provide further protection for sexually mature female spiny lobster and would enhance the reproductive capacity of the resource.
        Availability of Amendments 4 and 8

        Additional background and rationale for the measures discussed above are contained in Amendments 4 and 8. The availability of Amendments 4 and 8 was announced in the Federal Register on October 15, 2008 (73 FR 61015). Written comments on Amendments 4 and 8 must be received by 5 p.m., eastern time, on December 15, 2008. All comments received on Amendments 4 and 8 or on this proposed rule during their respective comment periods will be addressed in the preamble to the final rule.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendments 4 and 8, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        NMFS prepared a DEIS for this amendment. A notice of availability for the DEIS was published on June 27, 2008 (73 FR 36503).

        NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. 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 of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES). A summary of the IRFA follows.

        The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The proposed rule would implement importation standards for spiny lobster, Panulirus argus.
        The purpose of the proposed rule is to implement importation standards that will increase law enforcement's ability to effectively prevent the importation of undersized spiny lobster, spiny lobster with eggs or from which eggs have been removed, and spiny lobster tail meat in any form other than a whole tail with the exoskeleton attached.
        No duplicate, overlapping or conflicting Federal rules have been identified.
        The primary entities that are expected to be affected would be businesses that import spiny lobster into the United States from countries: (1) with legal minimum size standards that are less than those proposed or without such standards, and (2) without legal prohibitions against harvesting female lobsters with eggs, detaching their eggs and/or removing pleopods (swimmerets), or (3) without prohibitions on marketing spiny lobster tail meat in a form other than a whole tail with the exoskeleton attached.

        Businesses that import spiny lobster are expected to be within the following industries: Fish and Seafood Merchant Wholesalers (NAICS 424460), Fish and Seafood Markets (NAICS 445220), Fish and Frozen Seafood Processing (NAICS 311712), Packaged Frozen Food Merchant Wholesalers (NAICS 424420), and Supermarkets and Other Grocery, Except Convenience, Stores (NAICS 445110). The Small Business Administration (SBA) has established that a business in one of these industries is a small business if it is independently owned and operated, not dominant in its field of operation (including its affiliates), and if it has no more than 100 employees (NAICS 424460 and 424420), 500 employees (NAICS 311712), $6.5 million in annual receipts (NAICS 445220) or $25 million in annual receipts (NAICS 445110). According to Firm Size Data (www.sba.gov/advo/research/data.html), in 2005 there were: 2,243 firms in NAICS 424460 and at least 1,935 of those firms were small businesses; 2,761 firms in NAICS 424420 and at least 2,113 of them were small businesses; 504 firms in NAICS 311712 and 482 of them were small businesses; 43,686 firms in NAICS 445110 and at least 35,511 of them were small businesses; and 2,118 firms in NAICS 445220 and at least 2,008 were small businesses.
        The U.S. is the largest importer of spiny lobster. From 2002 through 2007, U.S. rock lobster imports, which includes spiny lobster, originated from 17 countries that harvest spiny lobster (Brazil, Bahamas, Belize, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Jamaica, Martinique, Mexico, Nicaragua, Panama, Trinidad and Tobago, Turks and Caicos Islands, and Venezuela), and of these countries, only Costa Rica, Guatemala, and Trinidad and Tobago have no harvest-size standards for spiny lobster. Additionally, a preliminary review of Panama fishing laws has not shown such a standard. Of the 13 countries with known harvest-size standards, 7 have legal size standards for spiny lobster that meet or exceed the proposed 5-ounce (142-gram) minimum tail weight that would apply anywhere subject to the jurisdiction of the United States (excluding Puerto Rico and the U.S. Virgin Islands where a more restrictive 6-ounce (170-gram) minimum tail weight would apply). These 7 countries are: The Bahamas, Colombia, Dominican Republic, Honduras, Turks and Caicos Islands, Nicaragua, and Venezuela. Thus, the 5-ounce (142-gram) minimum tail weight proposed by this rule would affect small businesses that import frozen spiny lobster from the following countries of origin into anywhere subject to the jurisdiction of the U.S., excluding Puerto Rico or the U.S. Virgin Islands: The Bahamas, Belize, Brazil, Colombia, Jamaica, Martinique, Mexico, Nicaragua, Panama, and Trinidad and Tobago.
        Many of the 17 countries of origin that harvest spiny lobster also prohibit harvest of berried (egg-bearing) lobsters and removal of pleopods. The Bahamas, Brazil, Belize, Colombia, Costa Rica, Dominican Republic, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Turks and Caicos Islands, and Venezuela prohibit taking of berried lobsters. Hence, the prohibition against importation of berried lobsters would not affect these countries. However, the prohibition against importation of berried lobsters could affect spiny lobster imports from Guatemala, Martinique and Trinidad and Tobago. The Bahamas and Belize have laws that prohibit the removal of pleopods. Consequently, the prohibition against importation of spiny lobster with their pleopods removed may affect imports from Brazil, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Jamaica, Martinique, Mexico, Nicaragua, Panama, Trinidad and Tobago, Turks and Caicos Islands, and Venezuela.
        U.S. Customs data show there were no imports of rock lobster into the U.S. Virgin Islands from 2001 through 2007. Consequently, it is expected that there are no small businesses that import spiny lobster into the U.S. Virgin Islands and would be affected by this proposed rule. The same data show imports of rock lobster into Puerto Rico originated from The Bahamas, Dominican Republic and Honduras, which have legal size standards less than the minimum legal standards of Puerto Rico and the U.S. Virgin Islands. Both Puerto Rico and the U.S. Virgin Islands, however, prohibit the possession of spiny lobster with a carapace less than 3.5 inches (8.89 cm), which, in turn, prohibits the importation of lobsters that do not meet their size standard. Puerto Rico also prohibits possession of berried lobsters. Therefore, the proposed prohibition against importation of berried lobsters should not affect small businesses that import spiny lobster into Puerto Rico. Furthermore, preliminary evidence suggests little to none of the spiny lobster imports into Puerto Rico include meat with the exoskeleton removed.
        This proposed rule would also prohibit importation of spiny lobster with their pleopods removed. Most imports of spiny lobster are parts of or whole lobster with the meat attached to the exoskeleton. Hence, this particular prohibition is expected to affect a small minority of imports.

        The Western Central Atlantic Fishery Commission has reported that harvesting and trading of spiny lobster below the minimum legal size is a serious problem, especially in Brazil. It has also been reported to be a problem in Nicaragua, Honduras and the Bahamas. From 2002 through 2007, of the top four countries of origin of imported frozen rock lobster and other sea crawfish (HS 030611000) that harvest spiny lobster, about 32 percent of frozen rock lobster and other sea crawfish by value were imported from Brazil, followed by about 21 percent from the Bahamas, about 18 percent from Honduras, and 16 percent from Nicaragua, for a total of about 86 percent of the frozen rock lobster imports from countries that harvest spiny lobster. The remaining countries of origin are Colombia (about 4 percent), Belize (about 3 percent), Mexico (about 3 percent), Jamaica (about 2 percent), Panama (about 1 percent), and Dominican Republic, Turks and Caicos Islands, Haiti, Costa Rica, Guatemala, Venezuela, Trinidad and Tobago, and Martinique, all under one percent.
        During the same period, U.S. imports of non-frozen rock lobster and other sea crawfish (HS 030621000) from countries of origin that also harvest spiny lobster were Costa Rica, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Turks and Caicos Islands, and Venezuela. Because Honduras, Nicaragua, Turks and Caicos Islands, and Venezuela have minimum size standards that are equivalent to the proposed size standards that would apply anywhere subject to the United States, except Puerto Rico or the U.S. Virgin Islands, this proposed rule would affect small businesses that import non-frozen spiny lobster from the following countries of origin: Costa Rica, Guatemala, Jamaica, and Mexico. About 93 percent of the non-frozen rock lobster imports by value from countries of origin that harvest spiny lobster are from Mexico, and increasingly these imports from Mexico have been live lobsters. Collectively, the imports of non-frozen rock lobster from these four countries of origin (Costa Rica, Guatemala, Jamaica, and Mexico) represent about 94 percent of the non-frozen imports by value for countries that harvest spiny lobster.
        Frozen imports of rock lobster represent the large majority of rock lobster imports. During the period from 2002 through 2007, of the top four countries of origin that harvest spiny lobster, about 32 percent of frozen rock lobster and other sea crawfish were imported from Brazil, followed by about 21 percent from the Bahamas, about 18 percent from Honduras, and 16 percent from Nicaragua, for a total of about 86 percent of the rock lobster imports from these countries.
        Customs data from January 22, 2004, through December 31, 2007, for frozen rock lobster imports from the top four countries of origin (Brazil, Bahamas, Honduras, and Nicaragua), indicate 98 businesses imported frozen rock lobster from these 4 countries. Thirteen of these businesses are foreign-based, and at least 3 are subsidiaries of much larger companies. Of the remaining 82 businesses, 45 of them imported frozen rock lobster in 1 year, followed by 17 businesses in 2 years, 10 in 3 years, and 10 in 4 years. The number of small businesses in any 1 year that imported frozen rock lobster from one or more of these countries ranged from 47 to 32 from 2004 through 2007, with an average of 38 annually. Therefore, 86 percent of the annual imports of frozen rock lobster from countries that harvest spiny lobster are brought in by an average of 38 small businesses. This is indicative that this proposed rule would not have an adverse impact on a substantial number of small or large businesses.

          List of Subjects
          50 CFR Part 622
          Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
          50 CFR Part 640
          Fisheries, Fishing, Incorporation by reference, Reporting and recordkeeping requirements.

          Dated: October 23, 2008.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR parts 622 and 640 are proposed to be amended as follows:

          PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

        1. The authority citation for part 622 continues to read as follows:

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

        2. In § 622.1, a sentence is added to the end of paragraph (b) to read as follows:

          § 622.1
          Purpose and scope.

          (b) * * * This part also governs importation of Caribbean spiny lobster into Puerto Rico or the U.S. Virgin Islands.

        3. In § 622.2, the definition of “Import” is added in alphabetical order to read as follows:

          § 622.2
          Definitions and acronyms.

            Import means, for the purpose of §§ 622.1(b) and 622.50 only,—
          (1) To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, Puerto Rico or the U.S. Virgin Islands, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States; but
          (2) Does not include any activity described in paragraph (1) of this definition with respect to fish caught in the U.S. exclusive economic zone by a vessel of the United States.

        4. In § 622.3, paragraph (a) is revised and paragraph (f) is added to read as follows:

          § 622.3
          Relation to other laws and regulations.
          (a) The relation of this part to other laws is set forth in § 600.705 of this chapter and paragraphs (b) through (f) of this section.

          (f) Regulations pertaining to additional prohibitions on importation of spiny lobster into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands are set forth in part 640 of this chapter.

        5. In § 622.7, paragraph (ii) is added to read as follows:

          § 622.7
          Prohibitions.

          (ii) Fail to comply with the Caribbean spiny lobster import prohibitions, as specified in § 622.50.

        6. Section 622.50 is added to subpart C to read as follows:

          § 622.50
          Caribbean spiny lobster import prohibitions.
          (a) Minimum size limits for imported spiny lobster. There are two minimum size limits that apply to importation of spiny lobster into the United States -one that applies any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands.

          (1) No person may import a Caribbean spiny lobster with less than a 6-ounce (170-gram) tail weight into Puerto Rico or the U.S. Virgin Islands. For the purposes of paragraph (a) of this section, a 6-ounce (170-gram) tail weight is defined as a tail that weighs 5.9-6.4 ounces (167-181 grams). If the documentation accompanying an imported Caribbean spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight, the person importing such Caribbean spiny lobster has the burden to prove that such Caribbean spiny lobster actually does satisfy the minimum tail-weight requirement or that such Caribbean spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such Caribbean spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such Caribbean spiny lobster has the burden to prove that such Caribbean spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such Caribbean spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the burden is satisfied such Caribbean spiny lobster will be considered to be in compliance with the minimum 6-ounce (170-gram) tail-weight requirement.
          (2) See § 640.27 of this chapter regarding the minimum size limit that applies to spiny lobster imported into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands.
          (b) Additional Caribbean spiny lobster import prohibitions—(1) Prohibition related to tail meat. No person may import into any place subject to the jurisdiction of the United States Caribbean spiny lobster tail meat that is not in whole tail form with the exoskeleton attached.
          (2) Prohibitions related to egg-bearing spiny lobster. No person may import into any place subject to the jurisdiction of the United States Caribbean spiny lobster with eggs attached or Caribbean spiny lobster from which eggs or pleopods (swimmerets) have been removed or stripped. Pleopods (swimmerets) are the first five pairs of abdominal appendages.

          PART 640—SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH ATLANTIC

        7. The authority citation for part 640 continues to read as follows:

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

        8. Section 640.1 is revised to read as follows:

          § 640.1
          Purpose and scope.
          (a) The purpose of this part is to implement the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic prepared by the South Atlantic and Gulf of Mexico Fishery Management Councils under the Magnuson-Stevens Act.
          (b) This part governs conservation and management of spiny lobster and slipper (Spanish) lobster in the EEZ in the Atlantic Ocean and Gulf of Mexico off the Atlantic and Gulf of Mexico states from the Virginia/North Carolina border south and through the Gulf of Mexico. This part also governs importation of spiny lobster into any place subject to the jurisdiction of the United States.
          (c) An owner or operator of a vessel that has legally harvested spiny lobsters in the waters of a foreign nation and possesses spiny lobster, or separated tails, in the EEZ incidental to such foreign harvesting is exempt from the requirements of this part 640, except for § 640.27 with which such an owner or operator must comply, provided proof of lawful harvest in the waters of a foreign nation accompanies such lobsters or tails.

        9. In § 640.2, the definition for “Regional Director” is removed, the definition for “Spiny lobster” is revised, and definitions for “Import” and “Regional Administrator” are added in alphabetical order to read as follows:

          § 640.2
          Definitions.

            Import means—
          (1) To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States; but
          (2) Does not include any activity described in paragraph (1) of this definition with respect to fish caught in the U.S. exclusive economic zone by a vessel of the United States.

            Regional Administrator (RA) ,for the purposes of this part, means the Administrator, Southeast Region, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701, or a designee.

            Spiny lobster means the species Panulirus argus, or a part thereof.

        10. In § 640.3, paragraph (a) is revised, and paragraph (c) is added to read as follows:

          § 640.3
          Relation to other laws.
          (a) The relation of this part to other laws is set forth in § 600.705 of this chapter and paragraphs (b) and (c) of this section.

          (c) Regulations pertaining to additional prohibitions on importation of spiny lobster into Puerto Rico or the U.S. Virgin Islands are set forth in part 622 of this chapter.

        11. In § 640.7, introductory text is revised, and paragraph (w) is added to read as follows:

          § 640.7
          Prohibitions.
          In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to do any of the following:

          (w) Fail to comply with the spiny lobster import prohibitions, as specified in § 640.27.

        12. Section 640.8 is revised to read as follows:

          § 640.8
          Facilitation of enforcement.
          See § 600.730 of this chapter.
          13. Section 640.9 is revised to read as follows:

          § 640.9
          Penalties.
          See § 600.735 of this chapter.

        14. Section 640.27 is added to subpart B to read as follows:

          § 640.27
          Spiny lobster import prohibitions.
          (a) Minimum size limits for imported spiny lobster. There are two minimum size limits that apply to importation of spiny lobster into the United States -one that applies any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands.
          (1) No person may import a spiny lobster with less than a 5-ounce (142-gram) tail weight into any place subject to the jurisdiction of the United States excluding Puerto Rico and the U.S. Virgin Islands. For the purposes of paragraph (a) of this section, a 5-ounce (142-gram) tail weight is defined as a tail that weighs 4.2-5.4 ounces (119-153 grams). If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster has the burden to prove that such spiny lobster actually does satisfy the minimum tail-weight requirement or that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster has the burden to prove that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the burden is satisfied, such spiny lobster will be considered to be in compliance with the minimum 5-ounce (142-gram) tail-weight requirement.

          (2) See § 622.50 of this chapter regarding a more restrictive minimum size limit that applies to spiny lobster imported into Puerto Rico or the U.S. Virgin Islands.
          (b) Additional spiny lobster import prohibitions -(1) Prohibition related to tail meat. No person may import into any place subject to the jurisdiction of the United States spiny lobster tail meat that is not in whole tail form with the exoskeleton attached.
          (2) Prohibitions related to egg-bearing spiny lobster. No person may import into any place subject to the jurisdiction of the United States spiny lobster with eggs attached or spiny lobster from which eggs or pleopods (swimmerets) have been removed or stripped. Pleopods (swimmerets) are the first five pairs of abdominal appendages.

          PART 640—[AMENDED]
          15. In addition to the amendments set forth above, in 50 CFR part 640, remove the words “Magnuson Act” and “Regional Director” and add in their places the words “Magnuson-Stevens Act” and “Regional Administrator”, respectively, wherever they occur.

      [FR Doc. E8-25823 Filed 10-28-08; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 600
        [I.D. 032803G]
        Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits (EFPs)

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

          ACTION:
          Notification of a proposal for EFPs to conduct experimental fishing; request for comments.

          SUMMARY:
          The Administrator, Northeast Region, NMFS (Regional Administrator) has made a preliminary determination that the subject EFP application contains all the required information and warrants further consideration.  The Regional Administrator has also made a preliminary determination that the activities authorized under the EFP would be consistent with the goals and objectives of the Northeast (NE) Multispecies Fishery Management Plan (FMP).  However, further review and consultation may be necessary before a final determination is made to issue the EFP.  Therefore, NMFS announces that the Regional Administrator proposes to issue an EFP that would allow one vessel to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the Northeastern United States.  The EFP would allow for exemptions from:   The requirement to count days-at-sea (DAS) under this EFP against the NE multispecies DAS allocation for a total of 30 DAS; the fishing restrictions imposed by the Gulf of Maine (GOM) rolling closure areas; the minimum mesh size requirements specified for the GOM Regulated Mesh Area; and the minimum fish size requirements for the temporary retention of undersized fish for data collection purposes.  The EFP would allow these exemptions for not more than 30 days of sea trials.  All experimental work would be monitored by University of New Hampshire Cooperative Extension scientists/observers.
          Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.

          DATES:
          Comments must be received on or before April 23, 2003.

          ADDRESSES:
          Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930.  Mark the outside of the envelope “Comments on UNH Cooperative Extension Codend Mesh Size Selectivity Study.”  Comments may also be sent via facsimile (fax) to (978) 281-9135.

          FOR FURTHER INFORMATION CONTACT:
          Brian Hooker, Fishery Management Specialist, phone number 978-281-9220.

        SUPPLEMENTARY INFORMATION:
        The UNH Cooperative Extension submitted an application for an EFP on January 21, 2003, with final revisions received on March 21, 2003.  The experimental fishing application requests authorization to use one commercial fishing vessel to conduct sea trials of a hydrodynamic codend cover.  The purpose of this experiment is to design a cover that would surround the codend without masking the net.  Floats, weights, and kites would be placed on the outside of a trawl net to hold a supplemental small-mesh net away from the codend being examined.  This would better enable researchers to evaluate a variety of codends by quantifying the amount of fish that escape, as well as those that are retained.  The UNH researchers would use alternate tows both with, and without, the codend cover to evaluate differences in fish retention.  Also, underwater video technology would be employed to observe the codend, the cover, and the fish escaping from the net.  The codend cover would then be used to determine species and size selectivity of different trawl codend mesh sizes in the GOM multispecies fishery.  Furthermore, the proposal seeks to determine fish retention in large mesh codends for GOM cod, haddock, whiting, and flounders (winter, witch, dabs).  The experiment would compare the selectivity of 6.5-inch (16.51 cm) diamond mesh, 6.5-inch (16.51 cm) square mesh, 7-inch (17.78 cm) diamond mesh, and 7-inch (17.78 cm) square mesh codends against the regulation 6-inch (15.24 cm) diamond mesh.  The biological impact of mesh size increases, including fishing mortality and discard rates of regulated multispecies, would be analyzed.  The results of this mesh selectivity study would then be made available to the New England Fishery Management Council and NMFS.

        The at-sea portion of the experiment would last no longer than 30 days between April and September, 2003.  The activity would occur in Federal waters off the coast of New Hampshire excluding the Western GOM closure area.  A total of 180, 30-minute tows at 2.8 knots would be conducted (six per day).  UNH researchers would be required to be aboard the vessel at all times during the experimental work.   All undersized fish would be returned to the sea as quickly as possible after measurement and examination.  However, legal-sized fish that otherwise would have to be discarded would be allowed to be retained and sold within GOM possession limits.  The participating vessel would be required to report all landings in its Vessel Trip Report.  The catch levels are not expected to have a detrimental impact on the NE multispecies resources.  Estimated total landings for the 30 days are:   Cod-9,000 lb (4,082 kg); flounders (winter, witch, dabs)-9,000 lb (4,082 kg); and other groundfish (haddock, cusk, white hake, silver hake, ocean pout, wolffish, etc.)-6,000 lb (2,722 kg).  This is approximately one-half the amount of fish that would be landed by the vessel when fishing under normal operating conditions on a NE multispecies DAS.  Because the vessel will be fishing with a 3-inch (7.62 cm) codend cover it is estimated that total discards will exceed that of normal fishing operations.  Total discard is estimated at 36,000 lb (16,329 kg) (50 percent herring, 20 percent mackerel, 20 percent hake, 5 percent cod and haddock, and 5 percent flounders (winter, witch, dabs)).  Researchers will take precautions to avoid areas where there are concentrations of undersized fish.
        Based on the results of this EFP, this action may lead to future rulemaking.

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

          Dated:  April 2, 2003.
          Richard W. Surdi,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 03-8555 Filed 4-7-03; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 12, 19, 36, 43, and 52
        [FAR Case 2018-020; Docket No. FAR-2018-0020, Sequence No. 1]
        RIN 9000-AN78
        Federal Acquisition Regulation: Construction Contract Administration

          AGENCY:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which requires agencies to provide a notice along with the solicitation to prospective bidders and offerors regarding definitization of requests for an equitable adjustment related to change orders under construction contracts.

          DATES:
          Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before June 1, 2020 to be considered in the formation of the final rule.

          ADDRESSES:
          Submit comments in response to FAR Case 2018-020 by any of the following methods:
          • Regulations.gov: http://www.regulations.gov. comments via the Federal eRulemaking portal by searching for “FAR Case 2018-020”. Select the link “Comment Now” that corresponds with FAR Case 2018-020. Follow the instructions provided at the “Comment Now” screen. Please include your name, company name (if any), and “FAR Case 2018-020” on your attached document.
          • Mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, 2nd Floor, ATTN: Lois Mandell, Washington, DC 20405.

            Instructions: Please submit comments only and cite FAR Case 2018-020, in all correspondence related to this case. Comments received generally will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

          FOR FURTHER INFORMATION CONTACT:

          Ms. Camara Francis, Procurement Analyst, at 202-550-0935, or by email at camara.francis@gsa.gov, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAR Case 2018-020.

        SUPPLEMENTARY INFORMATION:

        I. Background
        DoD, GSA, and NASA are proposing to amend the FAR to implement section 855 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232, 15 U.S.C. 644(w)). Section 855 requires Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors including information about the agency's policies or practices in complying with FAR requirements related to the timely definitization of requests for equitable adjustment on construction contracts. The notice must include data regarding the time it took the agency to definitize requests for equitable adjustment on construction contracts for the three-year period preceding the issuance of the notice.
        II. Discussion and Analysis
        The proposed changes to the FAR are summarized in the following paragraphs.
        A. Solicitation notice regarding administration of change orders for construction. New text is proposed in FAR part 36, Construction and Architect-Engineer Contracts, subpart 36.5, Contract Clauses, to add coverage of the requirement for a new solicitation notice to be included in solicitations for construction. Specifically, new section 36.524, Notice to offerors regarding administration of change orders for construction, contains the prescription for the use of new solicitation provision 52.236-XX, Notice Regarding Administration of Change Orders for Construction. New section 36.524 also includes guidance for contracting officers regarding the information to be inserted in the provision. This new solicitation provision, which is proposed to be added in FAR part 52, Solicitation Provisions and Contract Clauses, will provide a standardized way for contracting officers to provide the notice required by section 855 of the NDAA for FY 2019.

        Additional coverage related to the requirement for the new solicitation notice is proposed in FAR part 43, Contract Modifications, subpart 43.2, Change Orders. A new paragraph is proposed for section 43.204, Administration, to instruct contracting offices and contract administration offices to use a specific Federal system to collect data on the time required to definitize unpriced change orders for construction contracts. The data will be used in new solicitation provision 52.236-XX.
        In FAR part 12, Acquisition of Commercial Items, subpart 12.5, Applicability of Certain Laws to the Acquisition of Commercial Items and Commercially Available Off-The-Shelf Items, a new paragraph is added to note that 15 U.S.C. 644(w), Solicitation Notice Regarding Administration of Change Orders for Construction, is not applicable to Executive agency contracts for the acquisition of commercial items.
        B. Cross reference to coverage of new solicitation notice.

        Section 19.502, Setting aside acquisitions, is amended to add a cross reference to the new section 36.524.
        III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items
        This rule proposes to implement a statutory requirement for Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors regarding agency policies or practices, and agency past performance, in complying with FAR requirements related to the timely definitization of requests for equitable adjustments resulting from change orders under construction contracts. The Federal Acquisition Regulatory Council (FAR Council) intends to apply the new provision 52.236-XX, Notice Regarding Administration of Change Orders for Construction, to contracts at or below the simplified acquisition threshold (SAT), but does not intend to apply the new provision to contracts for the acquisition of commercial items including COTS items.
        A. Applicability to Contracts at or below the SAT. Pursuant to 41 U.S.C. 1905, a provision of law is not applicable to acquisitions at or below the SAT unless the law (i) contains criminal or civil penalties; (ii) specifically refers to 41 U.S.C. 1905 and states that the law applies to acquisitions at or below the SAT; or (iii) the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT. If none of these conditions are met, the FAR is required to include the statutory requirement(s) on a list of provisions of law that are inapplicable to acquisitions at or below the SAT.
        The purpose of this rule is to implement section 855 of the NDAA for FY 2019. Section 855 requires Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors regarding agency policies or practices, and agency past performance, in complying with FAR requirements related to the timely definitization of requests for equitable adjustments resulting from change orders under construction contracts. Section 855 is silent on the applicability of these requirements for acquisitions at or below the SAT and does not independently provide for criminal or civil penalties; nor does it include terms making express reference to 41 U.S.C. 1905 and its application to acquisitions at or below the SAT. Therefore, it does not apply to acquisitions at or below the SAT unless the FAR Council makes a written determination as provided at 41 U.S.C. 1905.
        Application of section 855 to acquisitions at or below the SAT will maximize the number of small entities who would benefit from the information to be provided regarding definitization of requests for equitable adjustment resulting from change orders under construction contracts. Approximately one third of construction contracts awarded in FY 2016 through FY 2018 were valued at or below the SAT. Not applying this rule to acquisitions at or below the SAT would exclude acquisitions intended to be covered by section 855.
        For these reasons, it is in the best interest of the Federal Government to apply the requirements of the rule to acquisitions at or below the SAT.
        B. Applicability to Contracts for the Acquisition of  Commercial Items, Including COTS Items.

        41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. governs the applicability of laws to COTS items, with the Administrator for Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The FAR Council and the Administrator for Federal Procurement Policy have not made such determination, therefore this rule does not apply to commercial items.
        IV. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        V. Executive Order 13771
        This proposed rule is not subject to E.O. 13771, Reducing Regulation and controlling Regulatory Costs, because this rule is not expected to be a significant regulatory action under E.O. 12866.
        VI. Regulatory Flexibility Act

        DoD, GSA, and NASA do not expect this change to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:

          DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 855 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019, which requires Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors regarding agency policies or practices in complying with FAR requirements related to the timely definitization of requests for equitable adjustment on construction contracts. The notice must include information on the agency's policies or practices on definitizing equitable adjustments on construction contracts and data on the amount of time it took the agency to definitize requests for equitable adjustment on construction contracts during the three-year period preceding the issuance of the notice.
          The objective of this proposed rule is to provide contractors with information about an agency's past performance in definitizing equitable adjustments under construction contract change orders as required by section 855 of the NDAA for FY 2019.
          This rule is primarily aimed at Federal agencies, requiring them to provide a notice of their past performance on definitizing equitable adjustments for construction contracts. The notice will provide potential small business offerors with information that may be useful to them as they prepare, or decide whether to prepare and submit, a proposal in response to an agency's solicitation for construction. For example, if an agency has a poor history of definitizing equitable adjustments, potential small business offerors may reconsider whether to submit a proposal in response to that agency's solicitation. Alternately, when preparing their proposals, small business offerors may consider the additional costs that could be incurred if it is likely they will experience delays in the definitization of equitable adjustments.
          An analysis of the Federal Procurement Data System (FPDS) reveals that an average of 2,340 unique entities per year were awarded construction contracts during FY 2016, 2017, and 2018. Of those, 1,872 were small entities. The number of construction contracts awarded in FY 2016, 2017, and 2018 averaged 4,488 per year, of which 3,355 were awarded to small entities. Additionally, during these same years, an average of 3,939 construction-related task orders were awarded each year to approximately 1,069 unique entities; 3,254 of those task orders were awarded to 851 small entities. On average, over FY 2016, 2017, and 2018, 6,503 modifications were issued each year to approximately 1,582 entities for change orders or definitization of change orders under construction contracts. Of those, approximately 3,803 modifications were issued to 1,147 small entities.
          This proposed rule does not include any new reporting, recordkeeping or other compliance requirements for small entities.
          The proposed rule does not duplicate, overlap, or conflict with any other Federal rules.
          There are no known significant alternative approaches that would accomplish the stated objectives of the applicable statute.

        The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the SBA. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit comments separately and should cite 5 U.S.C. 610 (FAR case 2018-020) in correspondence.
        VII. Paperwork Reduction Act
        The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Parts 12, 19, 36, 43, and 52
          Government procurement.

          William F. Clark,
          Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy.

        Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part(s) 12, 19, 36, 43, and 52 as set forth below:
        1. The authority citation for 48 CFR part(s) 12, 19, 36, 43, and 52 continues to read as follows:

          Authority:
           40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

          PART 12—ACQUISITION OF COMMERCIAL ITEMS

        2. Amend section 12.503 by adding paragraph (a)(10) to read as follows:

          12.503
           Applicability of certain laws to Executive agency contracts for the acquisition of commercial items.
          (a) * * *
          (10) 15 U.S.C. 644(w), Solicitation Notice Regarding Administration of Change Orders for Construction (see 36.524).

          PART 19—SMALL BUSINESS PROGRAMS

        3. Add section 19.502-11 to read as follows:

          19.502-11
           Solicitation notice regarding administration of change orders for construction.
          See 36.524 for the requirement to provide a notice to offerors regarding definitization of requests for equitable adjustment for change orders under construction contracts.

          PART 36—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

        4. Revise subpart 36.5 heading to read as follows:

          Subpart 36.5—Solicitation Provisions and Contract Clauses

        5. Revise section 36.500 to read as follows:

          36.500
           Scope of subpart.
          (a) This subpart prescribes provisions and clauses for insertion in solicitations and contracts for—
          (1) Construction; and
          (2) Dismantling, demolition, or removal of improvements contracts.
          (b) Provisions and clauses prescribed elsewhere in the Federal Acquisition Regulation (FAR) shall also be used in such solicitations and contracts when the conditions specified in the prescriptions for the provisions and clauses are applicable.

        6. Add section 36.524 to read as follows:

          36.524
           Notice to offerors regarding administration of change orders for construction.
          (a) The contracting officer shall insert the provision at 52.236-XX, Notice Regarding Administration of Change Orders for Construction, in solicitations for construction that are set aside, or will be awarded on a sole-source basis, pursuant to part 19. This provision does not apply to the acquisition of commercial items using part 12 procedures.
          (b) The contracting officer shall complete the fill-ins to provide—
          (1) Information to offerors about the agency's policies or procedures in complying with requirements relating to timely definitization of requests for equitable adjustment for change orders for construction; and
          (2) Data for the prior 3 fiscal years, available at [website to be determined], regarding the time required to definitize requests for equitable adjustment for change orders for construction (see 43.204). Prior to August 13, 2021, if fewer than 3 fiscal years of data are available, provide data for the number of fiscal years that are available.

          PART 43—CONTRACT MODIFICATIONS

        7. Amend section 43.204 by redesignating paragraph (b)(3) as paragraph (b)(3)(i), and adding paragraph (b)(3)(ii) to read as follows:

          43.204
           Administration.

          (b) * * *
          (3) * * *

          (ii) Contracting offices and contract administration offices, as appropriate, shall use [website to be determined] to record and maintain data regarding the time required to definitize requests for equitable adjustment associated with unpriced change orders for construction. The contracting officer shall ensure the data is entered into [website to be determined] promptly.

          PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        8. Add section 52.236-XX to read as follows:

          52.236-XX
           Notice Regarding Administration of Change Orders for Construction.
          As prescribed in 36.524, insert the following provision:

            Notice Regarding Administration of Change Orders for Construction (DATE)
            (a) As required by 15 U.S.C. 644(w), this provision provides information relating to the definitization of requests for equitable adjustment for change orders under construction contracts.

            (b) Federal Acquisition Regulation (FAR) 43.204 provides policy and guidance relating to definitization of requests for equitable adjustment resulting from change orders for contracts, including those for construction. In addition to FAR 43.204, the agency issuing this solicitation has established the following policies or procedures that apply to definitization of requests for equitable adjustment for change orders under construction contracts: _. [Contracting officer insert description of applicable policies or procedures, or address of a publicly accessible website containing this information. If no applicable policies or procedures exist, insert “None.”]

            (c) Information on the agency's past performance in definitizing requests for equitable adjustment associated with change orders for construction for fiscal year(s) _ [Contracting Officer insert the prior fiscal years, up to 3, for which information is available] is available at _ [Contracting Officer insert address of publicly accessible website containing this information] or in the following table:

                Time to definitize after receipt of request for equitable adjustment for construction
                Number of requests for equitable adjustment definitized for construction

                30 days or less

                31 to 60 days

                61 to 90 days

                91 to 180 days

                181 to 365 days

                366 or more days

                After completion of contract performance via a contract modification addressing all undefinitized requests for equitable adjustment received during contract performance

              [Contracting Officer insert number of requests for equitable adjustment definitized in each category.]

          (End of provision)

      [FR Doc. 2020-05866 Filed 3-31-20; 8:45 am]
       BILLING CODE 6820-EP-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA-2002-12347]
        RIN 2127-AI52
        Federal Motor Vehicle Safety Standards; Rearview Mirrors

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Notice of withdrawal of rulemaking.

          SUMMARY:

          In response to a petition for rulemaking submitted by Ms. Barbara Sanford, NHTSA published a Request for Comments (RFC) in the Federal Register on January 22, 2003 that included several questions regarding convex mirrors on commercial trucks. The Sanford petition asked the agency to amend our Federal Motor Vehicle Safety Standard (FMVSS) for rearview mirrors to require that all commercial trucks traveling on interstate highways have convex mirrors affixed to their front right and left fenders in order to provide drivers of these vehicles an increased field-of-view during lane change maneuvers, which the petitioner stated is necessary to eliminate a blind spot caused by the elevated position of commercial truck drivers relative to passenger cars. Prior to receiving the Sanford petition, the agency had decided to conduct research on heavy truck mirror systems, including fender-mounted mirrors. For reasons discussed in this document, the agency is withdrawing the RFC and is terminating this rulemaking, because additional research is necessary to assess the potential safety benefits of convex mirrors in this application.

          FOR FURTHER INFORMATION CONTACT:
          For non-legal issues: Mr. David M. Hines, Office of Crash Avoidance Standards, Telephone number: (202) 493-0245, FAX number: (202) 366-7002. For legal issues: Mr. Eric Stas, Office of the Chief Counsel, Telephone number: (202) 366-2992, FAX number: (202) 366-3820. You may send mail to either of these officials at NHTSA, 400 Seventh Street, S.W., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:

        I. Background
        Federal Motor Vehicle Safety Standard No. 111, Rearview mirrors, does not require, nor restrict, the use of convex mirrors on heavy trucks such as the ones identified in the Sanford petition.1
           Instead, multipurpose passenger vehicles and trucks with a Gross Vehicle Weight Rating (GVWR) of more than 4,536 kg (10,000 lbs.) are required to have outside mirrors of unit magnification with stable supports on both sides of the vehicle; these mirrors must be located to provide the driver a view to the rear along both sides of the vehicle and be adjustable in both the horizontal and vertical directions. Regarding the use of convex mirrors on heavy trucks in the fleet, the agency previously noted that they are being used extensively by the heavy trucking industry, and that informal surveys by NHTSA staff suggested that approximately two-thirds of large trucks (excluding cab over designs) were equipped with convex mirrors on only the right front fender and approximately half were equipped with convex mirrors on both front fenders.

            1 Docket No. NHTSA-2002-12347.

        As noted above, NHTSA published a RFC on January 22, 2003 regarding convex mirrors on commercial trucks (68 FR 2993).2

           The agency received 24 comments in response to our published RFC from automobile and automobile equipment manufacturers, trade associations, public interest groups, and individuals. These comments may be viewed at: http://dms.dot.gov/search/searchFormSimple.cfm (Docket No. 12347).3
           Several of the comments provided insight on convex mirrors generally. However, none of the responses included data demonstrating safety benefits associated with requiring convex mirrors on the front right and left fenders of commercial trucks.

            2 Docket No. NHTSA-2002-12347-1.

            3 We note that the comments in the docket also address another petition involving a request from AM General Corporation to permit vehicles with a GVWR of more than 4,536 kg and with an overall length that is less than 508 centimeters to have the option of being equipped with a passenger-side convex mirror instead of the required passenger-side mirror of unit magnification.

        The agency has contracted with Virginia Tech Transportation Institute (VTTI) to conduct research on heavy truck mirror systems. The agency identified the objective of the study as assessing side and rearward visibility of heavy trucks, documenting current mirror design and aiming, developing a method to evaluate mirror fields of view, and recommending enhanced mirror design and aiming. Results of that research will be posted on our Web site (http://www.nhtsa.dot.gov) when it is completed.
        II. Reason for Termination
        After careful consideration, NHTSA has decided to withdraw this rulemaking. The agency believes further research on front fender-mounted convex mirrors is needed in order to draw appropriate conclusions as to the efficacy of these devices, and we are currently in the process of conducting such research. If this research indicates a need for future rulemaking, the agency will act accordingly.
        The agency arrived at this decision to terminate after reviewing the comments received and identifying the need for additional research data upon which to propose any rulemaking. While no reference to available data regarding demonstrated safety benefits of front fender-mounted convex mirrors was submitted, some responses did address the prevalence and cost of these mirrors on heavy trucks.
        For example, Mr. Roger Brock, an individual, referred to an informal interstate survey of tractor-trailer combinations involving 336 units that found approximately 64% of the subject trucks had a front fender-mounted convex mirror on at least one side and approximately 46% had them on both sides. The Truck Manufacturers Association (TMA) responded that sales data from six manufacturers from the prior 2-3 years demonstrated a range from 7% to 72%, varying by manufacturer, of trucks sold were equipped with hood/fender-mounted convex mirrors. TMA also estimated the list prices for such mirrors to vary from $65 to $225 per mirror. The American Trucking Associations agreed that a significant portion of commercial motor vehicles currently use fender-mounted mirrors but stated that some configurations of trucks or truck tractors will not permit the use of such mirrors due to those vehicles' specialized applications.

        In light of the absence of available safety data, the currently high rate of voluntary installation of convex mirrors on commercial trucks, and our as-yet incomplete research program, the agency has decided to withdraw this rulemaking. Nevertheless, the agency remains interested in reducing truck mirror blind spots and will thoroughly review the VTTI research results in its efforts to understand the relevant safety issues associated with front fender-mounted convex mirrors.

          Authority:
          49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegations of authority at 49 CFR 1.50 and 501.8.

          Issued on: September 20, 2005.
          Stephen R. Kratzke,
          Associate Administrator for Rulemaking.

      [FR Doc. 05-19666 Filed 9-30-05; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        RIN 0648-AS25
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Tilefish; Amendment 1

          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:
           NMFS announces that the Mid-Atlantic Fishery Management Council (Council) has submitted Amendment 1 to the Tilefish Fishery Management Plan (FMP) (Amendment 1), incorporating the Final Environmental Impact Statement (FEIS) and the Initial Regulatory Flexibility Analysis (IRFA), for review by the Secretary of Commerce. NMFS is requesting comments from the public on Amendment 1. The proposed measures in Amendment 1 would address issues and problems that have been identified since the FMP was first implemented. These measures are considered a means to achieve the management objectives of the FMP, and include measures to implement an IFQ program.

          DATES:
           Comments must be received on or before July 6, 2009.

          ADDRESSES:
           An FEIS was prepared for Amendment 1 that describes the proposed action and its alternatives and provides a thorough analysis of the impacts of proposed measures and their alternatives. Copies of Amendment 1, including the FEIS and the IRFA, are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-6790. You may submit comments, identified by 0648-AS25, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
          • Fax: (978) 281-9135, Attn: Timothy Cardiasmenos.

          • Mail: Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Tilefish Amendment 1.”

          Instructions: All comments received are a part of the public record and will generally beposted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) 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). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
           Timothy Cardiasmenos, Fishery Policy Analyst, phone 978-281-9204, fax 978-281-9135.

        SUPPLEMENTARY INFORMATION:
        Background

        In March 2004, the Council began the development of Amendment 1 to the FMP to evaluate alternatives for a limited access privilege program and other measures for limited access vessels. The Council held 17 public meetings on Amendment 1 between March 2004 and April 2008. After considering a wide range of issues, alternatives, and public input, the Council submitted a draft environmental impact statement (DEIS) for Amendment 1 to NMFS. The notice of availability for the DEIS published in the Federal Register on December 28, 2007 (72 FR 73798). Following the public comment period on the DEIS that ended on February 11, 2008, the Council adopted Amendment 1 on April 10, 2008. Amendment 1 was developed and adopted by the Council in response to the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law. Amendment 1 management measures were developed by the Council and would: (1) Implement an Individual Fishing Quota (IFQ) program; (2) establish IFQ transferability of ownership; (3) establish a cap on the acquisition of IFQ allocation (temporary and permanent); (4) address fees and cost recovery; (5) establish flexibility to revise/adjust the IFQ program; (6) establish IFQ reporting requirements; (7) modify the Interactive Voice Response (IVR) reporting requirements; (8) implement recreational permits and reporting requirements; (9) improve monitoring of tilefish commercial landings; (10) expand the list of management measures that can be adjusted via the framework adjustment process; (11) modify the Essential Fish Habitat (EFH) designation; (12) modify the habitat areas of particular concern (HAPC) designation; and (13) implement measures to reduce gear impacts on EFH within the Exclusive Economic Zone. The proposed IFQ program measures are intended to reduce overcapacity in the commercial fishery, and to eliminate, to the extent possible, problems associated with a derby-style fishery. Amendment 1 also would create a tilefish open access Charter/Party permit, which would require reporting by the recreational component of the fishery. When the original FMP was instituted in 2001, the recreational component of the fishery was believed to be small. However, anecdotal evidence suggests that in recent years the recreational component of the fishery may have grown. The tilefish open access Charter/Party permit would provide NMFS with the ability to collect landings information on this component of the fishery in order to properly assess the health of the stock.

        Public comments are being solicited on Amendment 1, and its incorporated documents, through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 1 will also be published in the Federal Register for public comment. Public comments on the proposed rule must be received by the end of the comment period provided in this notice of availability of Amendment 1 to be considered in the approval/disapproval decision on the amendment. All comments received by July 6, 2009, whether specifically directed to Amendment 1, or to the proposed rule for Amendment 1, will be considered in the approval/disapproval decision on Amendment 1. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 1. To be considered, comments must be received by the close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.

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

          Dated: April 29, 2009.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

       [FR Doc. E9-10181 Filed 5-1-09; 8:45 am]
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