        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 271
        [FRL-7229-2]
        Oregon: Proposed Authorization of State Hazardous Waste Management Program Revision

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          Oregon has applied to EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Oregon's application and made the preliminary decision that these changes satisfy all requirements needed to qualify for final authorization, and is proposing to authorize the State's changes.

          DATES:
          EPA will accept written comments which are received at the address below on or before July 17, 2002.

          ADDRESSES:
          Send written comments to Lynn Williams, U.S. EPA, Region 10, Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail Stop WCM-122, Seattle, WA 98101, phone, (206) 553-2121. You can examine copies of the materials submitted by Oregon during normal business hours at the following locations: EPA Region 10 Library, 1200 Sixth Avenue, Seattle WA 98101, phone, (206) 553-1289; and at the Oregon Department of Environmental Quality, Land Quality Division, 811 SW Sixth Avenue, Portland, OR 97204. The Oregon contact is Gary Calaba at (503) 229-6534.

          FOR FURTHER INFORMATION CONTACT:

          Lynn Williams, U.S. EPA Region 10, Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail Stop WCM-122, Seattle, WA, 98101; (206) 553-2121. For general information available on the authorization process, see EPA's Web site at: http://www.epa.gov/epaoswer/hazwaste/state/rcra.

        SUPPLEMENTARY INFORMATION:

        A. Why Are Revisions to State Programs Necessary?
        States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to and consistent with the Federal program. States are required to have enforcement authority which is adequate to enforce compliance with the requirements of the authorized State hazardous waste program. Under RCRA section 3009, States are not allowed to impose any requirements which are less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in Title 40 of the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
        B. What Decisions Have We Made in This Rule?
        EPA has made the preliminary determination that Oregon's authorized hazardous waste program, as revised, meets the statutory and regulatory requirements established by RCRA. Therefore, we are proposing to grant Oregon final authorization to operate its hazardous waste program with the changes described in the authorization application and as described in this proposed rule. Regulatory revisions which are less stringent than Federal program requirements and those regulatory revisions which are broader in scope than Federal program requirements will not be authorized.
        Oregon's authorized program will be responsible for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA) and the limitations of this authorization. Oregon's authorized program does not extend to Indian country. EPA retains jurisdiction and authority to implement RCRA over Indian country and over trust lands.
        New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA are implementable by EPA and take effect in States with authorized programs before such programs are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions in Oregon, including issuing permits or portions of permits, until the State is granted authorization to do so.
        C. What Will Be the Effect if Oregon Is Authorized for These Changes?
        If Oregon is authorized for these changes, a facility in Oregon subject to RCRA will have to comply with the authorized State program requirements and with the federal HSWA provisions for which the State is not authorized in order to comply with RCRA. Oregon has enforcement responsibilities under its State hazardous waste program for violations of its currently authorized program and will have enforcement responsibilities for the revisions which are the subject of this proposed rule once a final rulemaking becomes effective. EPA continues to have independent enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
        • Do inspections and require monitoring, tests, analyses, or reports;
        • Enforce RCRA requirements, including State program requirements that are authorized by EPA and any applicable Federally-issued statutes and regulations, and suspend or revoke permits; and
        • Take enforcement actions regardless of whether the State has taken its own actions.

        The action to approve these revisions will not impose additional requirements on the regulated community because the regulations for which Oregon's program will be authorized are already effective under State law.
        D. What Happens if EPA Receives Comments That Oppose This Action?
        If the EPA receives significant written comments on this authorization, we will address those comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.
        E. What Has Oregon Previously Been Authorized for?

        Oregon initially received final authorization on January 30, 1986, effective January 31, 1986 (51 FR 3779), to implement the State's hazardous waste management program. EPA granted authorization for changes to Oregon's program on March 30, 1990, effective on May 29, 1990 (55 FR 11909); August 5, 1994, effective October 4, 1994 (59 FR 39967); June 16, 1995, effective August 15, 1995 (60 FR 31642); and October 10, 1995, effective December 7, 1995 (60 FR 52629).

        F. What Changes Are We Proposing to Oregon's Authorized Program?
        EPA is proposing to authorize revisions to Oregon's authorized program described in Oregon's official program revision application, submitted to EPA on February 4, 2002, and deemed complete by EPA on March 7, 2002. We have made a preliminary determination that Oregon's hazardous waste program revisions, as described in this proposed rule, satisfy the requirements necessary to qualify for final authorization. Regulatory revisions which are less stringent than Federal program requirements and those regulatory revisions which are broader in scope than Federal program requirements will not be authorized. The Oregon Hazardous Waste Management Program, which was administered by the Oregon Department of Environmental Quality (DEQ), Waste Prevention and Management Division, reorganized effective October 1, 2001 and is now administered by the DEQ Land Quality Division. This rule proposes to authorize this reorganization.
        The following table, Table 1, identifies equivalent and more stringent State regulatory analogues to the Federal regulations for those regulatory revisions Oregon is seeking authorization for. All of the referenced analogous State authorities were legally adopted and effective as of July 21, 2000.

          Table 1.—Equivalent and More Stringent Analogues to the Federal Regulations 1

            Description of Federal requirements (CL# 2)
            Federal Register
            Analogous State authority (OAR 340-***)

            Availability of Information

            -100-0003(2), -100-0005(a)-(5), 105-0012.

            User Oil Filter Exclusion, Technical Corrections (CL 107)
            57 FR 29220, 7/1/92
            -100-0002; -101-0001.

            Testing and Monitoring Activities (CL 126)
            58 FR 46040, 8/31/93
            -100-0002; -101-0001;-104-0001; -1005-0001.

            Boilders & Industrial Furnaces, Administrative Stay & Interim Standards for Bevill Residues (CL 127)
            58 FR 59598, 11/9/93
            -100-0002.

            Wastes From the Use of Chlorophenolic Formulations in Wood Surface Protection (CL 128)
            59 FR 458, 1/4/94
            -100-0002; -101-0001.

            Revision of Conditional Exemption for Small Scale Treatability Studies (CL 129)
            59 FR 8362, 2/18/94
            -100-0002; -101-0001.

            Recycled Used Oil Management Standards; Technical Amendments and Corrections II (CL 130)
            59 FR 10550, 3/4/94
            -100-0002; -111-0000(2), -111-0010.

            Recordkeeping Instructions, Technical Amendment (CL 131)
            59 FR 13891, 3/24/94
            -100-0002; -104-0001.

            Letter of Credit Revision (CL 133)
            59 FR 29958, 6/10/94
            -100-0002; -104-0001, 104-0151.

            Corrections of Beryllium Powder (P015) Listing (CL 134)
            59 FR 31551, 6/20/94
            -100-0002; -101-0001, -101-0033.

            Recovered Oil Exclusion (CL 135)
            59 FR 38536, 7/28/94
            -100-0002; -101-0001.

            Removal of the Conditional Exemption for Certain Slag Residues (CL 136)
            59 FR 43496, 8/24/94
            -100-0002; -101-0001.

            Carbamate Production Identification and Listing of Hazardous Waste (CL 140)
            60 FR 7824, 2/9/95; as amended at 60 FR 19165, 4/17/95, and at 60 FR 25619, 5/12/95
            -100-0002; -101-0033.

            Universal Waste Rule: General Provisions (CL 142A)3

            60 FR 25492, 5/11/95
            -100-0002; -102-0011(e); -113-0000, -113,0020, 113-0020(1)-(2), -113,0030, -113-0030(3)(a), -113-0040, -113-0040(2), -113-0040(2)(b), -113-0040(2)(b)(B)(v), -113-0040(3)(a)-(b), -113-0040(4), -113-0050.

            Universal Waste Rule: Specific Provisions for Batteries (CL 142B)
            60 FR 25492, 5/11/95
            -100-0002; -113-0000, -113-0020, -113-0030, -113-0040.

            Universal Waste Rule: Specific Provisions for Pesticides (CL 142C)
            60 FR 25492, 5/11/95
            -100-0000; -113-0020, -113-0000, -113-0070, -113-0030, -113-0040.

            Universal Waste Rule: Specific Provisions for Thermostats (CL 142 D)
            60 FR 25492, 5/11/95
            -100-0002; -113-0020, -113-0000, -113-0030, -113-0040.

            Universal Waste Rule: Petition Provisions to add a new Universal Waste (CL 142 E)3

            60 FR 25492, 5/11/95
            -100-0002; -113-0000, -113-0060.

            Liquids in Landfills III (CL 145)
            60 FR 35703, 7/11/95
            -100-0002.

            RCRA Expanded Public Participation (CL 148)
            60 FR 63417, 12/11/95
            -100-0002; -106-0001; -105-0001, 105-0010, 105-0014.

            Land Disposal Restrictions Phase III—Decharacterized Wastewaters Carbamate Waste, and Spent Potliners (CL 151)
            61 FR 15566, 4/8/96
            -100-0002; -102-0011(2)(e).

            Conditionally Exempt Small Quantity Generator Disposal Options under Subtitle D (CL 153)
            61 FR 34252, 7/1/96
            -100-0002, -101-0001.

            Consolidated Organic Air Emissions standards for Tanks Surface Impoundments, and Containers (CL 154)
            59 FR 62896, 12/6/94; as amended 5/19/95 (60 FR 26828), 9/29/95 (60 FR 50426), 11/13/95 (60 FR 56952), 2/9/96 (61 FR 4903), 6/5/96 (61 FR 28508), 11/25/96 (61 FR 69932)
            -100-0002; -104-0001; 102-0034; -101-0001.

            Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties (CL 156) 3

            62 FR 6622, 2/12/97
            -100-0002, -101-0010; -101-0001; -102-0010; -103-0010; -104-0001, 104-1201, 104-1201(2), (3); -105-0001, -105-0041 (3),(4).

            Land Disposal Restrictions Phase IV—Treatment Standards for Wood Preserving Waste, Paperwork Production and Streamlining, Exemptions from RCRA for Certain Processed Materials; and Miscellaneous Hazardous Waste Provisions (CL 157)
            62 FR 25998, 5/12/97
            -100-0002; -101-0001, -101-0004.

            Testing and Monitoring Activities Amendment III (CL 158)
            62 FR 32452, 6/13/97
            -100-0002; -104-0001.

            Conformance with Carbamate Vacatur (CL 159)
            62 FR 32974, 6/17/97
            -100-0002; -101-0001.

            Emergency Revision of Carbamate Land Disposal Restrictions (CL 161)
            62 FR 45568, 8/28/97
            -100-0002.

            Clarification of Standards for Hazardous Waste LDR Treatment Variances (CL 162)
            62 FR 64504, 12/5/97
            -100-0002.

            Organic Air Emission standards for Tanks, Surface Impoundments, and Containers; Clarification and Technical Amendment (CL 163)
            62 FR 64636, 12/8/97
            -100-0000; -104-0001.

            Kraft Mill Stream Stripper Condensate Exclusion (CL 164)
            64 FR 18504, 4/15/98
            -100-0002; -101-0004.

            Recycled Used Oil Management Standards; Technical Correction and Clarification (CL-166)3

            63 FR 24963, 5/6/98
            -100-0002; -111-0000 (2), -111-0032, -111-0050.

            Land Disposal Restrictions Phase IV—Treatment Standards for Metal Wastes and Mineral Processing Wastes (CL 167A)
            63 FR 28556, 5/26/98
            -100-0002; -102-0011(2)(e).

            Land Disposal Restrictions Phase IV—Hazardous Soils Treatment Standards and Exclusions (CL 167B)
            63 FR 28556, 5/26/98
            -100-0002.

            Land Disposal Restrictions Phase IV—Corrections (CL 167 C)
            63 FR 28556, 5/26/98; as amended 6/8/98 (63 FR 31260)
            -100-0002.

            Bevill Exclusion Revisions and Clarifications (CL 167E)
            63 FR 28556, 5/26/98
            -100-0002; -101-0001, -101-0004.

            Exclusion of Recycled Wood Preserving Wastewaters (CL 167F)
            63 FR 28556, 5/26/98
            -100-0002; -101-0004.

            Hazardous Waste Combustors; Revised Standards (CL 168)
            63 FR 33782, 6/19/98
            -101-0002, -101-0001, -101-0004.

            Petroleum Refining Process Wastes (CL 169)
            63 FR 42110, 8/6/98
            -100-0002; -101-0001; -102-0010; -101-0004.

            Land Disposal Restrictions Phase IV—Zinc Micronutrient Fertilizers, Amendment (CL 170)
            63 FR 46332, 8/31/98
            -100-0002.

            Emergency Revision of the Land Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous Wastes from Carbamate Production (CL 171)
            63 FR 47410, 9/4/98
            -100-0002.

            Land Disposal Restrictions Phase IV—Extension of Compliance Date for Characteristic Slags (CL 172)
            63 FR 48124, 9/9/98
            -100-0002.

            Land Disposal Restrictions; Treatment Standards for Spent Potliners from Primary Aluminum Reduction (K088); Final Rule (CL 173)
            63 FR 51254, 9/24/98
            -100-0002.

            HWIR—Media (CL 175)3

            63 FR 65874, 11/30/98
            -100-0010, -100-0002; -101-0004(3); -105-0003, -105-0115.

            Universal Waste Rule—Technical Amendments (CL 176)
            63 FR 71225, 12/24/98
            -100-0002; -113-0000. -113-0020.

            Organic Air Emission Standards: Clarification and Technical Amendments (CL 177)
            64 FR 3382, 1/21/99
            -100-0002; -102-0034; -104-0001.

            Petroleum Refining Process Wastes—Leachate Exemption (CL 178)
            64 FR 6806, 2/11/99
            -100-0002; -101-0001, -101-0004.

            Land Disposal Restrictions Phase IV—Technical Corrections and Clarifications to Treatment Standards (CL 179)
            63 FR 25408, 5/11/98
            -100-0002; -101-0001; -102-0010; -101-0004; -102-0034.

            Test Procedures for Analysis of Oil and Grease and Non-Polar Material (CL 180)
            64 FR 26315, 5/14/99
            -100-0002.

            Universal Waste Rule: Specific Provisions for Hazardous Waste Lamps (CL 181)
            64 FR 36466, 7/6/99
            -100-0002; -113-0000, -113-0020, -113-0030, -113-0040, -113-0060.

            Hazardous Air Pollutants Standards for Combustors (CL 182)
            64 FR 52828, 9/30/99, as amended 11/19/99 (64 FR 63209)
            -100-0002; -101-0001; -104-0001; -105-0001.

            Land Disposal Restrictions Phase IV—Technical Corrections (CL 183)
            64 FR 56469, 19/20/99
            -100-0002; -101-0001; -102-0010, -102-0034.

            Accumulation Time for Waste Water Treatment Sludges (CL 184)
            65 FR 12378, 3/8/00
            -100-0002; -102-0010.

            Organobromine Production Waste Vacatur (CL 185)
            65 FR 14472, 3/17/00
            -100-0000; -101-0001.

            1 For further discussion on where the revised State rules differ from the Federal rules refer to Section G. below, the authorization revision application, and the administrative record for this proposed rule.

            2 CL # (Checklist) generally reflects changes made to the Federal regulations pursuant to a particular Federal Register notice and EPA publishes these checklists as aids for States to use for the development of their authorization application. See EPA's RCRA State Authorization Web page at http://www.epa.gov/epaoswer/hazwaste/state/.

            3 State rule contains some more stringent provisions. For identification of more stringent State provisions refer to the authorization revision application and the Attorney General's statement for this proposed rule.

        G. Where Are the Revised State Rules Different From the Federal Rules?
        This section discusses some of the differences between the revisions Oregon proposed to its authorized program and the Federal regulations. Not all program differences are discussed in this section because, although Oregon incorporates many Federal rules by reference, the State also writes its own version of many of the federal hazardous waste rules. This section discusses certain rules where EPA is making a preliminary determination that the State program is more stringent and will be authorized, rules where the State program is broader in scope, and rules where the State program is less stringent than the federal requirements. The State will not be authorized for the less stringent rules or broader in scope rules. Less stringent State rules and broader in scope rules do not supplant federal regulations. Persons should consult the table referenced above for the specific State regulations which EPA proposes to authorize.
        Certain portions of the federal program are not delegable/authorizable to the States because of the Federal government's special role in foreign policy matters and because of national concerns that arise with certain decisions. One such matter pertains to import/export functions. EPA does not delegate/authorize import/export functions. Under the RCRA regulations found in 40 CFR part 262, Standards for Generators, EPA will continue to implement requirements for import/export functions. EPA does not delegate/authorize certain of the Federal Land Disposal Restriction requirements, 40 CFR Part 268, because of the national concerns that must be examined when decisions are made under the following federal regulations; these include: 40 CFR 268.5—Procedures for case-by-case effective date extensions; 40 CFR 268.6—“No migration” petitions; 40 CFR 268.42(b)—applications for alternate treatment methods; and 40 CFR 268.44(a)-(g)—general treatment standard variances. Oregon's program does not include these requirements. EPA will continue to implement these requirements under EPA's HSWA authority.
        Areas Where the State Program Is More Stringent
        States are allowed to seek authorization for State requirements that are more stringent than federal requirements. EPA has authority to authorize and enforce those parts of a State's program EPA finds to be more stringent than the federal program. This section does not discuss each more stringent preliminary finding made by EPA, but persons can locate such sections by consulting the Table, referenced above, as well as by reviewing the authorization application.
        Oregon has enacted several requirements under its hazardous waste management program for which EPA has made the preliminary determination that the requirements are more stringent than the standards of the Federal RCRA program set forth in 40 CFR parts 260-279.
        States sometimes make changes to their previously authorized programs for which they need to seek reauthorization. Oregon made such a change to its rules for availability of information. The State program requirement at OAR 340-100-0003, which replaces the federal requirements at 40 CFR 260.2 for availability of information, is preliminarily determined to be more stringent than the federal program because State regulations require additional justification for trade secret claims and establish a time frame of 15 to 30 days for clarifying claims. OAR 340-105-0012 was revised to require identical trade secret claims substantiation for permits as required by OAR 340-100-0003.
        The State program regulation at OAR 340-101-0004(3) is preliminarily determined to be more stringent than the federal program at 40 CFR 261.4(g), Dredged Materials, in that the State program deletes 40 CFR 261.4(g) from its incorporation of the federal regulations by reference. Consequently, the State program does not exclude dredged material from regulation as a solid waste subject to a hazardous waste determination. Because the dredged materials exclusion at 40 CFR 261.4(g) replaced existing regulations that subjected such materials to a hazardous waste determinations, State programs were allowed the option of choosing to change their regulations to include the dredged materials exclusion or not. Those that selected not to include the exclusion would be more stringent than the federal program because EPA promulgated the dredged materials exclusion as a less stringent requirement.
        The State program regulation at OAR 340-102-0011(3) is preliminarily determined to be more stringent than the federal program regulation at 40 CFR 262.11 because generators of hazardous waste in Oregon must keep documentation of “knowledge of process” hazardous waste determinations for at least three years.

        The State program at OAR 340-102-0034(2) is preliminarily determined to be more stringent than the federal regulation at 40 CFR 262.34 as an additional requirement, which does not replace or supersede the requirement to have a permit in the event a generator fails to satisfy the 40 CFR 262.34 conditions.

        The State program at OAR 340-102-0040, replacing the requirements of 40 CFR 262.40(b), is preliminarily determined to be more stringent than the federal program because the State program requires small quantity generators both to report waste generated (OAR 340-102-0041) and to maintain copies of all reports on waste generated for three years.
        The State program is preliminarily determined to be more stringent at OAR 340-104-0001(6) than the federal program with respect to facilities receiving hazardous waste from offsite because the State program requires that facilities receive a final waste permit before managing offsite hazardous wastes. The federal program allows facilities with interim status to receive offsite hazardous waste.
        The State program is preliminarily determined to be more stringent than the federal program with respect to the federal HWIR media rule because the State regulations do not allow for the use of Remedial Action Plans (RAPs) as found in the federal requirements at 40 CFR part 270, subpart H. The State regulations at OAR 340-105-0003 delete from their incorporation by reference of the federal regulations those regulations allowing for RAPs. Oregon inadvertently incorporated 40 CFR 270.230(e)(1) by reference but does not seek authorization for the provision.
        The State program is preliminarily determined to be more stringent than the federal program with respect to the federal Post Closure (PC) rule (63 FR 56710) because the State program specifically excluded the PC rule from its incorporation by reference of the federal regulations at OAR 340-100-0002.
        The State program is preliminarily determined to be more stringent in certain places than the federal regulations promulgated in EPA's Military Munitions Rule (62 FR 6622). With respect to the hazardous waste management system in Oregon, the State hazardous waste program added definitions for “demilitarization” and “demilitarization residue” at OAR 340-100-0010(2)(f) and (g) in Oregon's analog to 40 CFR 260.10. These definitions are specific to the processes and activities at the Umatilla Chemical Depot and are preliminarily determined to be more stringent than the federal program.
        With respect to chemical agent munitions and chemical agent bulk items in storage, the State program identifies such chemical agent munitions and chemical agent bulk items in storage as characteristic and/or listed hazardous waste at OAR 340-101-0030, referencing listings for blister agents and nerve agents at OAR 340-102-0011(c)(A) and (B). In the Military Munitions Rule, at 62 FR 6633, EPA said that States could be more stringent than the federal program for chemical agents and munitions.
        Oregon's analog to 40 CFR 264.1201, OAR 340-104-1201, design and operating standards for munitions storage, is preliminarily determined to be more stringent than the federal program because OAR 340-104-1201 adds additional requirements to munitions storage, including requirements for: storage unit operations and management plans; vapor containment mechanisms for nerve agent storage units; a requirement to not allow storage of munitions in an open area; and the State definition of “no migration” to mean no detectable concentration of chemical agent outside the storage unit. EPA's regulations defer the “no migration” criteria to Army management procedures which allow some detectable migration.
        The State is preliminarily determined to be more stringent than the federal program because the State program defines, for purposes of reportable quantities, chemical agents (such as, for example, nerve agents GB, VX, and blister agent HD) to be hazardous materials at OAR 340-108-0002(9)(c), and at OAR 340-108-0010(1)(e) reportable quantity is defined to mean any quantity of chemical agent.
        The State is preliminarily determined to be more stringent than the federal program in its incorporation by reference of the federal regulations at OAR 340-105-0041(3) because the State program deleted a cross-reference to the federal regulation at 40 CFR 270.42(h) and replaced the cross-reference with a citation to OAR 340-105-0041(4) which for the Umatilla Chemical Depot does not allow the acceptance of off-site shipments of munitions. The federal program does not restrict acceptance of such off-site shipments at the Umatilla Chemical Depot.
        EPA has made the preliminary determination that certain of the State program regulations for universal waste are more stringent than the federal regulations.
        The State regulations at OAR 340-113-0040(2)(b), (2)(b)(B), (3)(a) and (b), are preliminarily determined to be more stringent than the federal regulations at 40 CFR 273.12 and 273.32(b)(5), because the State requires owners or operators of off-site universal waste collection sites accumulating more than 1,000 kg of universal waste and non-pesticide universal waste to meet the notification requirements for large quantity generators and to submit additional information with the notification. The more stringent requirements of OAR 340-113-0040(2) and (3) are not applicable under the State regulation at OAR 340-113-0040(1)(b) to persons who collect, store or transport universal waste batteries.
        The State regulations at OAR 340-113-0040(3)(a) and (b) are preliminarily determined to be more stringent than the federal regulations at 40 CFR 273.15(a) and (b) and 273.35(a) and (b), because the State regulations require owners and operators of off-site collection sites accumulating more than 1,000 kg of universal waste to limit the accumulation time to a six month period or to receive written approval from ODEQ to extend the accumulation period.
        The State regulation at OAR 340-113-0040(4) is preliminarily determined to be more stringent than the federal regulation at 40 CFR 273.19 for tracking universal waste shipments because the State regulation applies to small quantity handlers accumulating more than 1,000 kg of universal waste.
        The State regulation at OAR 340-113-0040(4)(b) is preliminarily determined to be more stringent than the federal regulation at 40 CFR 273.39(a) because the State regulation requires an off-site collection site to record the date the off-site universal waste was received.
        The State regulation at OAR 340-113-0050(2) is preliminarily determined to be more stringent than the federal regulation at 40 CFR 273.60 because the State requires annual reporting of universal waste for all destination facilities.
        The State regulation at OAR 340-113-0060(2)(b) is preliminarily determined to be more stringent than the federal regulation at 40 CFR 273.81(c) in listing additional factors to be considered when reviewing a petition to remove a universal waste from the universal waste rule. However, the use of such factors cannot result in the universal waste not remaining subject to the hazardous waste regulations.

        The State program is preliminarily determined to be more stringent than the federal requirements at 40 CFR 279.22, Used Oil Storage, because the State regulation OAR 340-111-0032 requires generators to store used oil in accordance with applicable State and local Fire Marshal regulations and to keep rainwater from coming in contact with used oil during storage. The State program is preliminarily determined to be more stringent than the federal program at 40 CFR 279.45(h), 279.54(g), and 279.64(g), because the State program at OAR 340-111-0050 requires handlers to respond to spills and releases according to more specific State requirements of OAR 340 Division 108 and requires used oil handlers to take immediate action to mitigate, report and clean up threatened spills and releases of used oil as required in OAR 340 Division 108.
        Areas Where the State Program Is Broader in Scope
        States are not allowed to seek authorization for State requirements that are broader in scope than the federal requirements. EPA does not have authority to authorize and enforce those parts of a State's program which are broader in scope than the federal program. Because the State program at OAR 340-101-0004 deleted from its incorporation by reference of the federal regulations the provisions of 40 CFR 261.4(b)(7)(ii), a list of 20 wastes from the extraction, beneficiation and processing of ores and minerals (Bevill wastes) which under the federal program are solid wastes that are not hazardous wastes, EPA has made the preliminary determination that the State program is broader in scope than the federal program with respect to these solid wastes.
        The State program incorporated by reference rules that classified mineral processing characteristic sludges and byproducts being reclaimed as solid wastes and subjected manufactured gas plant waste to characterization under the toxicity characteristic regulations. The Federal regulations, 40 CFR 261.2(c)(3) parenthetical, 40 CFR 261.4(a)(17) as it referenced secondary materials rather than spent materials, and 40 CFR 261.24 as it applied to manufactured gas plant waste, were subsequently revised (67 FR 11251, March 13, 2002) because of a court vacatur of certain provisions of the regulations. Because of the vacatur, EPA cannot authorize the rules; thus EPA has made the preliminary determination that the State is broader in scope because the State program regulations at OAR 340-100-0002 incorporated the federal rules by reference as those rules existed before the vacatur.
        The State incorporated by reference at OAR 340-224-0220 the federal regulation at 40 CFR 63.1210(b) which was vacated on July 24, 2001. EPA has made the preliminary determination that the State hazardous waste program is broader in scope to the extent, if at all, the State hazardous waste regulations reference or cross-reference the vacated federal rule.
        The State regulations define “pesticide residue” at OAR 340-100-0010. The State interprets “pesticide residue” to include state-only pesticides which are state-only hazardous wastes and outside the scope of the federal regulations. A generator of state-only pesticide residues may designate such residues as “waste pesticide” and manage the residues in a manner consistent with the universal waste management standards of OAR Division 113, under a state water pollution control facility permit, at a Subpart C facility as allowed by OAR 340-109-0010(4)(a) or in a Subpart D facility provided land disposal restrictions were met. Portions of the State definition for universal waste, OAR 340-113-0020(4) are preliminarily determined to be broader in scope than the federal regulations at 40 CFR 260.10 and 273.9 by the addition of “waste pesticides,” which as defined by the State at OAR 340-109-0001(2)(a), are those not subject to regulation as hazardous waste under the federal regulations at 40 CFR Parts 260 to 270. Portions of the State definition of “universal waste,” OAR 340-113-0020(4), are also preliminarily determined to be broader in scope where the definition includes “pesticide residues” that are not part of the federal program.
        The State regulation at OAR 340-113-0010(1)(a), in addition to wastes covered by 40 CFR 273.3, adds waste pesticides and pesticide residues to the applicability section of the universal waste rules. This addition is preliminarily determined to be broader in scope where such waste pesticides or pesticide residues would not be part of the federal program.
        H. Who Handles Permits After This Authorization Takes Effect?
        Oregon will issue permits for all the provisions for which it is authorized and will administer the permits it issues. All permits, or portions of permits, issued by EPA Region 10 prior to final authorization of this revision will continue to be administered by EPA Region 10 until the issuance or re-issuance after modification of a State RCRA permit and until EPA takes action on its permit or portion of permit. HSWA provisions for which the State is not authorized will continue in effect under the EPA-issued permit or portion of permit. EPA will continue to issue permits, or portions of permits, for HSWA requirements for which the State program in Oregon is not yet authorized.
        I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in Oregon?
        EPA's decision to authorize the hazardous waste program does not include any land that is, or becomes after the date of this authorization, “Indian Country,” as defined in 18 U.S.C. 1151. This includes: (1) All lands within the exterior boundaries of Indian reservations within or abutting the State of Oregon; (2) any land held in trust by the U.S. for an Indian tribe; and (3) any other land, whether on or off an Indian reservation that qualifies as Indian country. Therefore, this action has no effect on Indian country. EPA retains jurisdiction over “Indian Country” as defined in 18 U.S.C. 1151 and will continue to implement and administer the RCRA program in Indian country.
        J. Administrative Requirements

        The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). This action does not have substantial direct effects on tribal governments, on the relationships between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175.

        This action will 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), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply Distribution or Use” (66 FR 28344, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. The proposed rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994).

        Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 271
          Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

          Authority:
          This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).

          Dated: June 3, 2002.
          L. John Iani,
          Regional Administrator, Region 10.

      [FR Doc. 02-14760 Filed 6-14-02; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 191002-0053]
        RIN 0648-BI45
        Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Vessel Movement, Monitoring, and Declaration Management for the Pacific Coast Groundfish Fishery

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

          ACTION:
          Proposed rule, request for comments.

          SUMMARY:
          NMFS proposes revisions to reporting and monitoring provisions for vessels participating in the Pacific Coast groundfish fishery. This proposed action would: Increase the position transmission rate for certain vessels using NMFS type-approved vessel monitoring system units, including limited entry groundfish vessels, open access vessels using non-groundfish trawl gear (ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear targeting groundfish or that have groundfish bycatch (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap); allow midwater trawl vessels participating in the Pacific whiting fishery to change their landing declarations while at sea; exempt groundfish trawl vessels from observer coverage while testing authorized fishing gear; and allow shorebased Individual Fishing Quota fixed gear vessels to deploy pot gear in one management area while retrieving gear from another management area on a single trip. The proposed action will increase monitoring efficiency and effectiveness, improve enforcement of restricted areas, and increase operational flexibility for groundfish fishery participants.

          DATES:
          Comments on this proposed rule must be received on or before November 12, 2019.

          ADDRESSES:
          Submit your comments, identified by NOAA-NMFS-2019-0093, by any of the following methods:
          • Online Submission: Go to the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0093, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Shannon Penna, Fishery Management Specialist, West Coast Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

          NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record and NMFS will post the comments 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 is 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.

          Copies of the analytic document supporting this action, are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2019-0093, or by contacting the Pacific Fisheries Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384.

          FOR FURTHER INFORMATION CONTACT:

          Shannon Penna, Fishery Management Specialist, 562-980-4238, or shannon.penna@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Background

        Between September 2014 and April 2016, the Pacific Fishery Management Council (Council) developed and considered management measures to address a range of vessel and gear movement issues and aggregated these issues under a single vessel movement monitoring agenda item. Additional details about the Council's considerations are included in the Council's analytic document (see ADDRESSES), and included in the discussion of individual measures below.
        The Council deemed the proposed regulations consistent with and necessary to implement this action in a July 17, 2019, letter from Council Executive Director, Chuck Tracy, to Regional Administrator Barry Thom. Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is required to publish proposed rules for comment after preliminarily determining whether they are consistent with applicable law. We are seeking comment on the Council's proposed measures in this action and whether they are consistent with the Pacific Coast Groundfish Fishery Management Plan, the Magnuson-Stevens Act and its National Standards, and other applicable law.
        Summary of the Proposed Regulations
        This section discusses proposed regulatory revisions that are expected to increase NMFS's ability to enforce fishing activity in and around restricted areas, and result in cost savings, increased profitability, and flexibility for the groundfish fishery. The proposed measures would:
        • Increase the position transmission rate requirements for certain vessels using NOAA NMFS type-approved vessel monitoring system (VMS) units;
        • Amend the definition for continuous transit;
        • Allow midwater trawl vessels participating in the Pacific whiting fishery to change their landing declarations while at sea;
        • Exempt groundfish trawl vessels from observer coverage while testing authorized fishing gear; and,
        • Allow shorebased Individual Fishing Quota (IFQ) fixed gear vessels to retrieve pot gear in one management area and deploy that gear in another management area on a single trip.
        A. Increased Position Transmission Rate for Groundfish VMS

        Vessels participating in the limited entry groundfish fishery (limited entry “A” endorsed permit), open access vessels using non-groundfish trawl gear (ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear targeting groundfish or that have groundfish bycatch (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap), are required to install a NMFS Office of Law Enforcement (OLE) type-approved mobile transceiver unit and to arrange for a NMFS OLE type-approved communications service provider to receive and relay transmissions to NMFS OLE prior to fishing. These units automatically record a vessel's position (i.e., the vessel's geographic location in latitude and longitude coordinates), and transmit those coordinates to a communications service provider. The current regulations require that VMS units transmit a vessel's position once every hour, 24 hours a day throughout the fishing year. Less frequent position reporting, at least once every four hours, may be authorized when a vessel has temporarily paused participation in the fishery and remains in port for an extended period of time. The VMS units record vessel positions at a random time during each hour so that vessel operators are unaware of when the vessel position is being recorded.
        An Initial Decision in a 2013 enforcement case (NOAA Case No. SW1002974) concluded that the current requirement of hourly position reports was insufficient to prove that a vessel was not operating in continuous transit through a restricted area as required by regulation. While the raw data from the VMS communications provider in the case did provide reliable information about vessel location and speed, it only accounted for a five second period out of each hour.
        The Council recommended increasing the vessel position frequency to increase NMFS's ability to enforce fishing activity around restricted areas. This proposed action would require an increase in the position transmission rate to every 15 minutes per hour for groundfish vessels using NMFS type-approved VMS units. This increase in frequency would produce more course, location, and speed data to improve NMFS's ability to identify whether vessels are continuously transiting in restricted areas or not.
        Increasing the VMS position transmission rate from once every hour to every 15 minutes will increase vessel operating costs. While vessels can choose from a variety of VMS service providers, the average monthly operating costs for transmissions every 15 minutes is $105 per month ($69 to $150 range) compared to an average of $50 per month ($37 to $65 range) for a single transmission per hour.
        The Council recommended two exemptions that would reduce redundant reporting and may provide cost savings to some portions of the fleet. For the first exemption, vessels that have installed and are using electronic monitoring (EM) systems for the duration of the fishing year would be allowed to maintain the current position transmission rate of one transmission per hour. EM systems include a Global Positioning System (GPS) that records the vessel position every 10 seconds. Because EM systems record vessel positions so frequently, it is not necessary to also increase the VMS position transmission rates. The GPS data are recorded to a hard drive, which the captain removes every 10 days and mails to the Pacific States Marine Fisheries Commission. For the second exemption, limited entry trawl vessels fishing with midwater trawl gear would be allowed to maintain the current position transmission rate of one transmission per hour. Limited entry vessels are only allowed to use midwater trawl gear to target whiting or non-whiting groundfish species during the primary whiting season from May 15 to December 31 each year. These vessels are also limited to using midwater trawl gear seaward of the trawl rockfish conservation area (RCA) south of 40°10′  North (N), but can use midwater trawl gear anywhere within the Exclusive Economic Zone north of 40°10′ N. Because there are only very broad seasonal and area restrictions associated with midwater trawl gear, and because these vessels are not generally subject to smaller geographic areas restrictions such as the trawl RCA and essential fish habitat conservation areas (EFHCAs) the increased position transmission rate is not necessary for restricted area enforcement for vessels using midwater trawl gear. Limited entry vessel operators would be allowed to change their transmission rates or VMS declaration reports on a trip-by-trip basis when necessary.
        B. Continuous Transit Definition
        Vessels are allowed to continuously transit through restricted areas, such as EFHCA, and restricted areas, when fishing gear is properly stowed and the vessel is on a direct course. This action proposes to revise the current definition of “continuous transiting or transit through” to encompass a broader array of vessel activity that is akin to loitering within a restricted area, whether that be by means of a source of power or by drifting with the prevailing water current or weather conditions. Under this revised definition, visual, electronic, or other evidence of vessel activity should provide information on vessel speed and course sufficient to indicate direct and expeditious transiting of a restricted area.
        C. Exemption From Observer Coverage While Testing Gear
        Groundfish vessels participating in the Shorebased IFQ Program, the Mothership (MS) Coop Program, or the Catcher/processor (C/P) Coop Program are required to have 100 percent observer coverage when fishing. Currently, when fishermen want to test their fishing gear during an open or closed season, they must contact the West Coast Groundfish Observer Program (WCGOP) prior to departure. Although gear testing does not usually involve the retention of fish, it falls under the definition of fishing as defined in the Magnuson-Stevens Act. These vessels sometimes inquire if certain gear testing situations are considered fishing activity and if they are required to carry an observer. NMFS has previously reviewed these on a case-by-case basis.
        Vessels with a NMFS required positioning system (VMS, EM) installed must also notify NMFS OLE which fishery or sector they will be participating in with a declaration. This declaration allows NMFS OLE to determine the restricted area closures with which the vessel is required to comply and whether the vessel is in compliance with restricted area regulations, based on the vessel's course as transmitted from the VMS unit. Other than EM, there is currently no way to remotely confirm that a vessel is testing fishing gear, and not engaged in fishing activity.

        This action would establish a definition for gear testing. The proposed definition states that gear testing is the deployment of lawful gear without retaining fish, for purposes, including, but not limited to: Deployment of nets using open codends; calibration of engines and transmission under load (i.e., towing a net with an open codend); deployment of wire and/or doors; testing new electronic equipment associated with deploying fishing gear; and testing and calibration of newly installed propulsion systems (i.e., engine, transmission, shaft, propeller, etc.). NMFS welcomes comments on the sufficiency of this definition, and recommendations to refine and clarify the types of activity that would qualify for gear testing.

        This action would also exempt groundfish vessels participating in the Shorebased IFQ, MS, and C/P sectors from the requirement to carry an observer while testing gear. A vessel would not need an observer because gear testing activity would specifically prohibit retaining fish. In addition to being prohibited from retaining fish while gear testing, vessels would be prohibited from testing experimental gear, testing with a closed codend, terminal gear, or with open pots, and from testing gear in groundfish conservation areas or EFHCAs.
        To be exempted from observer coverage while testing gear, vessels would need to communicate with both WCGOP and NMFS OLE. Vessels would be required to notify WCGOP by phone: or email, of the gear testing activity at least 48 hours prior to departing on a trip to test gear or equipment. This action would also add a VMS declaration code for “Gear testing.” When a vessel operator calls the West Coast Groundfish Declaration Line to declare “Gear testing,” the VMS technician would review the information submitted and determine if the vessel is eligible for this declaration. This measure would result in observer coverage cost savings on trips to test fishing gear or equipment.
        D. Declaration Changes at Sea for Whiting Fishery
        Currently, midwater catcher trawl vessels participating in the Pacific whiting fishery are restricted to landing either at a mothership or shoreside processor. After Pacific whiting catcher vessels have made their delivery obligation to a mothership, they are not allowed to make a tow for a delivery to a shoreside processor without returning to port first. This proposed regulatory revision would remove restrictions on catcher vessels to allow them to change their declarations while at sea by calling the West Coast Groundfish Declaration Line. After a vessel offloads onto a mothership, it could immediately change its declaration from one of the “Pacific whiting mothership sector” declarations to one of the “Pacific whiting shorebased IFQ” declarations to make a tow and offload on shore, or vice versa.
        Allowing vessels to change their declarations at sea would provide a vessel the opportunity to optimize available resources before returning to port. As a result, vessels will spend less time at sea, and in transit to and from fishing ports, which will ultimately reduce the cost of fuel and crew.
        E. Movement of IFQ Fishpot Gear Across Management Lines

        At the time the Council selected final alternatives for this rule, vessels fishing in the shorebased IFQ program using fixed gear (i.e., pot gear) were prohibited from moving gear from one management area to another during a single trip. The area of operation of the shorebased IFQ fixed gear fishery stretches along the entire west coast and is divided into four management areas (50 CFR 660.140). Vessels were required to land catch from a single management area prior to returning to deploying gear in a different management area. In addition, fish caught from one management area could not be on board while in a different management area from which they were caught. For example, if a fisherman retrieves fixed gear in area B, they could land their fish from area B before deploying that gear in area C.
        The prohibition on harvesting fish in two management areas during a single trip was put into place because the area of harvest is an important element in stock assessment. In addition, allocations to different fishing fleets and gear types stem from area-based stock management. However, this prohibition had negative impacts on fishery participants. For example, unlike trawl and longline vessels who can stow all of their gear on deck, pot gear vessels may have to make multiple trips to move their gear from one management area to the next. Some vessel owners report that the prohibition is expensive to their operations, particularly for those owners that fish out of ports in close proximity to a management line.
        The revised regulations would explicitly allow vessels retrieving pots from one management area to retain their catch on board and move to a second management area to deploy pots. These pots may be either baited or not baited. The vessel may then return to port to deliver their fish, then return to retrieve their pots from the second management area. Although the proposed adjustment increases operational flexibility in deploying pots, vessels are still only permitted to retain and land fish from a single management area. This will ensure the integrity of data to support stock assessments and catch monitoring for a single management area. Overall, fishing vessels will spend less time at sea, which should reduce the cost of fishing.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. In making the final determination, NMFS will consider the data, views, and comments received during the public comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order (E.O.) 12866.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the PCGFMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.
        This proposed rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

        An initial regulatory flexibility analysis (IRFA) was prepared for this action, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the IRFA follows. A copy of the IRFA is available from NMFS (see ADDRESSES). When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities.
        Description of the Reasons Why Action By the Agency Is Being Considered and Statement of the Objectives of, and Legal Basis for, This Action

        A description of the action, why it is being considered, and the legal basis for this action is contained in the SUMMARY section and at the beginning of the SUPPLEMENTARY INFORMATION section of the preamble, and is not repeated here.
        Description and Estimate of the Number of Small Entities To Which This Proposed Rule Would Apply

        For RFA purposes only, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
        For the purposes of our Regulatory Flexibility Act (RFA) analysis, the proposed action is considered to regulate ownership entities that are potentially affected by the action. The U.S. Small Business Association (SBA) established criteria for business in the fishery sector to qualify as small entities. Limited entry groundfish vessels directly regulated by this action are required to renew a permit annually, and the application asks for entity size including affiliation. Of those who responded as being large entities, 15 permits owned by 9 large entities were attached to vessels that participated in bottom trawl or fixed gear groundfish fisheries in 2018 and are the most likely to be impacted by the rule.
        Of the 571 vessels impacted by this rule, none had annual ex-vessel revenue on the West Coast (participation in other fisheries is not known) greater than the NMFS $11 million size standard. The top three revenue vessels, all in the IFQ fishery, had an average revenue of $1.9 million in 2018 in all West Coast fisheries. In contrast, the bottom ten earning vessels had revenues in all West Coast fisheries of less than $1,000.
        Description of the Proposed Reporting, Record-Keeping, and Other Compliance Requirements of This Proposed Rule
        This action contains a revision to an information collection requirement, which has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0573: West Coast Region Vessel Monitoring System Requirement for the Pacific Groundfish Fishery. This action proposes to adjust the position transmissions rate for certain vessels using NMFS type-approved vessel monitoring system units, including limited entry groundfish vessels, open access vessels using non-groundfish trawl gear (ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear targeting groundfish or that have groundfish bycatch (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap). Vessel owners would be required to increase their position transmission rate from once per hour to four times per hour. Vessels that are operating with electronic monitoring will be exempt from this increase and allowed to continue with a rate of four times per hour.
        The proposed action would add a declaration for gear testing so vessels will be exempt from observer coverage while testing gear and restricted from harvesting fish, and allow Groundfish midwater trawl vessels participating in the Shorebased IFQ Program and the MS Coop Program, to make a new declaration from sea and allowed to make a tow for a delivery to a shoreside processor without returning to port first. The numbers of declaration reports the vessel operator is required to submit to NMFS would not change under this request. Therefore, no small entity would be subject to additional reporting requirements.

        Public comment is sought regarding the following: Whether this proposed collection of information is necessary for the proper performance of agency functions, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Regional Administrator (see ADDRESSES), and email to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
        Federal Rules Which May Duplicate, Overlap, or Conflict With This Proposed Rule
        There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.
        Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities
        NMFS considered sub alternatives to the proposed rule that may have minimized significant economic impact, but not meet stated objectives of applicable statutes. The Council briefly considered increasing the position transmission signal to every 30 minutes or every 20 minutes, but rejected those alternatives from further analysis because those position transmission signals may not be frequent enough to provide information to enforce small restricted areas, or provide enough information to calculate a vessel's course for enforcement of continuous transit requirements.

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

          Dated: October 3, 2019.
          Samuel D. Rauch, III,
          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., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

        2. In § 660.11, revise the definition of “Continuous transiting or transit through” and add the definition of “Gear Testing” in alphabetical order, to read as follows:

          § 660.11
          General Definitions

            Continuous transiting or transit through means that a vessel crosses a groundfish conservation area or EFHCA on a heading as nearly as practicable to a direct route, consistent with navigational safety, while maintaining expeditious headway throughout the transit without loitering or delay.

            Gear Testing means the deployment of lawful gear without retaining fish, for the following purposes, including, but not limited to: Deployment of nets using open codends; calibration of engines and transmission under load (i.e., towing a net with an open codend); deployment of wire and/or doors; testing new electronic equipment associated with deploying fishing gear; and testing and calibration of newly installed propulsion systems (i.e., engine, transmission, shaft, propeller, etc.).

        3. In § 660.13, revise paragraphs (d)(1)(ii) and (d)(4)(iv)(A)(30) to read as follows:

          § 660.13
          Recordkeeping and reporting.

          (d) * * *
          (1) * * *

          (ii) Limited entry midwater trawl vessels targeting Pacific whiting may change their declarations while at sea between the Pacific whiting shorebased IFQ sector and the mothership sector as specified at paragraph (4)(iv)(A) of this section. The declaration must be made to NMFS before a different sector is fished.

          (4) * * *
          (iv) * * *
          (A) * * *
          (30) Gear testing.

        4. In § 660.14, revise paragraphs (d)(1), (d)(2), (d)(3), and (d)(5) to read as follows:

          § 660.14
          Vessel Monitoring System (VMS) requirements.

          (d) * * *

          (1) Obtain a NMFS OLE type-approved mobile transceiver unit and have it installed on board your vessel in accordance with the instructions provided by NMFS OLE. You may obtain a copy of the VMS installation and operation instructions from the NMFS OLE West Coast Region, VMS Program Manager upon request at 7600 Sand Point Way NE, Seattle, WA 98115-6349, phone: 888-585-5518 or wcd.vms@noaa.gov.

          (2) Activate the mobile transceiver unit, submit an activation report at least 72 hours prior to leaving port on a trip in which VMS is required, and receive confirmation from NMFS OLE that the VMS transmissions are being received before participating in a fishery requiring the VMS. Instructions for submitting an activation report may be obtained from the NMFS OLE West Coast Region, VMS Program Manager upon request at 7600 Sand Point Way NE, Seattle, WA 98115-6349, phone: 888-585-5518 or wcd.vms@noaa.gov. An activation report must again be submitted to NMFS OLE following reinstallation of a mobile transceiver unit or change in service provider before the vessel may be used to fish in a fishery requiring the VMS.
          (3) Transceiver unit operation. Operate and maintain the mobile transceiver unit in good working order continuously, 24 hours a day throughout the fishing year, unless such vessel is exempted under paragraph (d)(4) of this section.
          (i) Position frequency. The mobile transceiver unit must transmit a signal accurately indicating the vessel's position at least once every 15 minutes, 24 hours a day, throughout the year unless an exemption in (ii) of this paragraph applies or a valid exemption report, as described in paragraph (d)(4) of this section, has been received by NMFS OLE. The signal indicating the vessel's position can consist of either: a single position report transmitted every 15 minutes; or a series of position reports, at no more than a 15 minute interval, combined and transmitted at least once every hour.
          (ii) Exemptions to position frequency requirement. (A) Electronic monitoring exemption. If a vessel has an electronic monitoring system installed and in use for the duration of a given fishing year, the mobile transceiver unit must transmit a signal at least once every hour.
          (B) Midwater trawl exemption. If a limited entry trawl vessel is fishing with midwater trawl gear under declarations (d)(4)(iv)(A), the mobile transceiver unit must transmit a signal at least once every hour.
          (C) In port exemption. If a vessel remains in port for an extended period of time, the mobile transceiver unit must transmit a signal at least once every four hours. The mobile transceiver unit must remain in continuous operation at all times unless the vessel is exempt under paragraph (d)(4) of this section.

          (5) When aware that transmission of automatic position reports has been interrupted, or when notified by NMFS OLE that automatic position reports are not being received, contact NMFS West Coast Region, VMS Program Manager upon request at 7600 Sand Point Way NE, Seattle, WA 98115-6349, phone: 888-585-5518 or wcd.vms@noaa.gov and follow the instructions provided to you. Such instructions may include, but are not limited to, manually communicating to a location designated by NMFS OLE the vessel's position or returning to port until the VMS is operable.

        5. In § 660.112, revise paragraph (a)(4), and add paragraphs (a)(7) and (b)(1) (xvii) to read as follows:

           § 660.112
          Trawl fishery—prohibitions.

          (a) * * *
          (4) Observers. (i) Fish in the Shorebased IFQ Program, the MS Coop Program, or the C/P Coop Program without observer coverage unless exempt from the observer coverage requirement for gear testing activity and have satisfied the declaration and notification requirements, as described in § 660.140(h), § 660.150(j), or § 660.160(g).
          (ii) Fish in the Shorebased IFQ Program, the MS Coop Program, or the C/P Coop Program if the vessel is inadequate or unsafe for observer deployment as described at § 660.12(e).
          (iii) Fail to maintain observer coverage in port as specified at § 660.140(h)(1)(i).

          (7) Gear testing. (i) Retain fish while gear testing.
          (ii) Fish with a closed codend, use terminal gear (i.e., hooks), or fish with open pot gear while gear testing.
          (iii) Test gear in groundfish conservation areas described in § 660.70, or EFHCAs described in §§ 660.76 through 660.79.
          (iv) Test experimental gear, or any other gear not currently approved for groundfish fishing.

          (b) * * *
          (1) * * *
          (xvii) When declared into the limited entry groundfish non-trawl Shorebased IFQ fishery, retain fish caught with fixed gear in more than one IFQ management area, specified at § 660.140(c)(1), on the same trip.

        6. In 660.140, add paragraphs (c)(2) and (h)(1)(i)(A)(4) to read as follows:

          § 660.140
          Shorebased IFQ Program.

          (c) * * *
          (2) A vessel using fixed gear declared into the limited entry groundfish non-trawl Shorebased IFQ fishery may deploy pot or trap gear in multiple IFQ management areas on a trip provided the vessel does not retrieve gear from more than one IFQ management area during a trip.

          (h) * * *
          (1) * * *
          (i) * * *
          (A) * * *
          (4) Is exempt from the requirement to maintain observer coverage as specified in this paragraph (h) while gear testing as defined in § 660.11. The vessel operator must submit a valid declaration for gear/equipment testing, as required by § 660.13(d)(4)(iv)(A), and must notify the Observer Program of the gear testing activity at least 48 hours prior to departing on a trip to test gear/equipment.

        7. In 660.150, add paragraph (j)(1)(i)(C) to read as follows:

          § 660.150
          Mothership (MS) Coop Program.

          (j) * * *
          (1) * * *
          (i) * * *

          (C) Gear testing exemption. Vessels are exempt from the requirement to maintain observer coverage as specified in this paragraph (j) while gear testing as defined at § 660.11. The vessel operator must submit a valid declaration for gear/equipment testing, as required by § 660.13(d)(4)(iv)(A), and must notify the Observer Program of the gear testing activity at least 48 hours prior to departing on a trip to test gear/equipment.

        8. In 660.160, add paragraph (g)(1)(iv) to read as follows:

          § 660.160
          Catcher/processor (C/P) Coop Program.

          (g) * * *
          (1) * * *
          (iv) Gear testing exemption. Vessels exempt from the requirement to maintain observer coverage as specified in this paragraph (g) while gear testing as defined at § 660.11. The vessel operator must submit a valid declaration for gear/equipment testing, as required by § 660.13(d)(4)(iv)(A), and must notify the Observer Program of the gear testing activity at least 48 hours prior to departing on a trip to test gear/equipment.

      [FR Doc. 2019-21954 Filed 10-9-19; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 040521156-4156-01; I.D. 051704E]
        RIN 0648-AS10
        Fisheries of the Exclusive Economic Zone Off Alaska; Reduction to a Harvest Restriction for the Harvest Limit Area Atka Mackerel Fishery in the Aleutian Islands Subarea

          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 that would remove a harvest restriction on participants in the harvest limit area (HLA) Atka mackerel fishery in the Aleutian Islands subarea.  If approved, the regulatory amendments would allow participants assigned to an HLA fishery to harvest Atka mackerel outside of the HLA during the first HLA fishery in each season.  This action would allow participants to harvest Atka mackerel efficiently, would reduce competition with Steller sea lions for prey species within the HLA, and would not increase  competition among participants in the groundfish fisheries.  This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands (FMP), and other applicable laws.

          DATES:
          Comments must be received by June 17, 2004.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall.  Comments may be submitted by:
          • Mail: P.O. Box 21668, Juneau, AK  99802.
          • Hand Delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.
          • Fax: 907-586-7557.
          • E-mail: AM-HLA-0648-AS10@noaa.gov. Include in the subject line of the e-mail the following document identifier: AM HLA Proposed Rule.  E-mail comments, with or without attachments, are limited to 5 megabytes.
          • Webform at the Federal eRulemaking Portal: www.regulations.gov. Follow the instructions at that site for submitting comments.

          Copies of the Regulatory Impact Review (RIR) prepared for the proposed rule may be obtained from the mailing listed address above or from the NMFS Alaska Region website at www.fakr.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Melanie Brown, 907-586-7228 or melanie.brown@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The groundfish fisheries in the Exclusive Economic Zone of the Bering Sea and Aleutian Islands management area are managed under the FMP.  The North Pacific Fishery Management Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMP appear at 50 CFR part 679.  General regulations governing U.S. fisheries also appear at 50 CFR part 600.
        Background
        The western distinct population segment (DPS) of Steller sea lions has been listed as endangered under the Endangered Species Act, and critical habitat has been designated for this DPS (50 CFR 226.202).  In order to protect Steller sea lions from jeopardy of extinction and their critical habitat from adverse modification from the effects of the groundfish fisheries, temporal and spatial harvest restrictions were established in regulations for the groundfish fisheries of Alaska (68 FR 204, January 2, 2003).  Atka mackerel is an important prey species for Steller sea lions.  Under the harvest restrictions, the harvest of Atka mackerel in the Aleutian Islands subarea is managed to control the amount of harvest over time and area.  The details for managing the Atka mackerel fishery in 2004 are in the annual harvest specifications (69 FR 9242, February 27, 2004).
        The regulations at 50 CFR 679.20(a)(8) establish an HLA fishery to control the removal of Atka mackerel in the HLA.  The details of the HLA fishery are explained in the proposed rule for Steller sea lion protection measures (67 FR 56692, September 4, 2002).  The HLA is the waters of statistical areas 542 and 543 west of 178° W longitude within 20 nm seaward of sites listed in Table 6 of 50 CFR part 679 and located west of 177°57.00′ W longitude.  This area includes critical habitat for Steller sea lions and additional waters around haulouts that are considered important for Steller sea lion foraging.
        To reduce the amount of daily catch in the HLA by about half and to disperse the fishery over two areas, the Atka mackerel trawl fleet is divided into two groups assigned to fish in the HLA in either statistical area 542 or statistical area 543.  HLA fisheries are conducted twice each season.  One of the conditions of participating in the HLA fishery is a prohibition on participating in groundfish fisheries outside the HLA while the first assigned HLA fishery takes place each season.  The intent of this prohibition is to ensure participants in the HLA fishery would not leave the HLA assignment unused and switch to another groundfish fishery at the same time, increasing competition with participants in other groundfish fisheries.  The current regulations at § 679.7(a)(19) and § 679.20 (a)(8)(iii) prohibit fishing for all groundfish outside the HLA, including Atka mackerel, during the first assigned HLA fishery in a season. The harvest of Atka mackerel outside of the HLA would not increase competition among Atka mackerel fishery and other groundfish fisheries participants because the locations and methods of harvest vary among groundfish fisheries.  Therefore, the current regulations are more restrictive than necessary to prevent competition among groundfish fisheries participants.  The current regulations also provide less protection to Steller sea lions than the proposed changes would provide because the current regulations actually require harvest of Atka mackerel inside the HLA during the first HLA fishery, potentially competing with Steller sea lions for prey.
        The intent of the HLA fishery was to reduce the rate of harvest of Atka mackerel in the HLA.  This proposed action would allow participants in the HLA fishery to fish for Atka mackerel outside of the HLA during the first assigned HLA fishery in a season.  The prohibition on fishing for groundfish species other than Atka mackerel during the first assigned HLA fishery would not be affected by the proposed change.   This action would provide the potential for additional reduction in the rate of Atka mackerel harvest in the HLA, adding protection to Steller sea lions by potentially reducing competition and interaction with the Atka mackerel fleet.  The proposed rule also would provide the fishing industry with additional locations during the first HLA fisheries to efficiently harvest Atka mackerel, without competing with other groundfish fisheries.
        Classification
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.  This action would not have an economic impact on any small entities.  The ten groundfish entities that will be directly regulated by this action and currently participate in the Atka mackerel fishery are large entities according to criteria established by the Small Business Administration.  That is, gross revenues exceed $3.5 million for each of these vessels.  Although gross revenues were not estimated for some species harvested by these vessels, in each case over $3.5 million in gross revenues were identified.  As a result, an initial regulatory flexibility analysis was not required and none was prepared.

        These vessels are catcher-processors fishing a diversified group of BSAI groundfish fisheries.  In addition to Atka mackerel, these vessels make significant harvests of Pacific cod, yellowfin sole, rock sole, Pacific Ocean perch, and other species.  The small entity threshold for catcher-processors is $3.5 million.  Alaska Region estimates of gross revenues indicate that none of these vessels grossed less than $3.5 million dollars.  Five of these vessels are believed to fish for a single firm.  These entities would be treated as a single entity for purposes of the RFA because of their affiliations.
        The Regional Administrator determined that fishing activities conducted pursuant to this rule will not affect endangered and threatened species or critical habitat under the Endangered Species Act.

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

          Dated: May 26, 2004.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

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

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

          Authority:
          16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; Pub L. 106-31, Sec. 3027; and Pub. L.106-554, Sec. 209.

        2.  In § 679.7, paragraph (a)(19) is revised to read as follows:

          § 679.7
          Prohibitions.

          (a) * * *
          (19) Atka Mackerel HLA Groundfish Prohibition. For vessels registered for an Atka mackerel HLA directed fishery under § 679.20(a)(8)(iii), conduct directed fishing for groundfish, other than Atka mackerel, during the time period that the first Atka mackerel HLA directed fishery to which the vessel is assigned under § 679.20(a)(8)(iii)(B) is open.

        3.   In § 679.20, paragraph (a)(8)(iii)(F) is revised to read as follows:

          § 679.20
          General limitations.

          (a) * * *
          (8) * * *
          (iii) * * *
          (F) Groundfish directed fishery prohibition. Vessels registering under paragraph (a)(8)(iii)(A) of this section are prohibited from participating in any groundfish directed fishery, other than Atka mackerel, during the opening of the first HLA directed fishery assigned to the vessel in a season, as specified in § 679.7(a)(19).

      [FR Doc. 04-12436 Filed 6-1-04; 8:45 am]
      BILLING CODE 3510-22-S