        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 170301213-7213-01]
        RIN 0648-BG70
        Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; State Waters Exemption

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations to allow an exemption to enable vessels with Federal Limited Access General Category Individual Fishing Quota permits from the State of Maine and Commonwealth of Massachusetts to continue fishing in their respective state waters once NMFS has announced that the Federal Northern Gulf of Maine total allowable catch has been fully harvested in a given year. Additionally, Massachusetts has requested that Federal Limited Access General Category Northern Gulf of Maine permits also be included in its exemption. Both states have requested this exemption as part of the Scallop State Water Exemption Program. This proposed rule is necessary to solicit comments on the state requests and to inform the public that NMFS is considering granting the requests.

          DATES:
          Comments must be received by 5 p.m., local time, on July 14, 2017.

          ADDRESSES:

          Documents supporting this action, including the State of Maine's and Commonwealth of Massachusetts' requests for the exemption and Framework Adjustment 28 to the Atlantic Sea Scallop Fishery Management Plan (FMP) are available upon request from John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930.
          You may submit comments on this document, identified by NOAA-NMFS- 2017-0042, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0042, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Maine and Massachusetts State Waters Exemption Program.”

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Shannah Jaburek, Fishery Management Specialist, 978-282-8456.

        SUPPLEMENTARY INFORMATION:
        Background
        The Scallop State Waters Exemption Program has been in place as an element of the Scallop FMP since 1994 (Amendment 4 to the FMP, Final Rule published January 19, 1994, 59 FR 2757). At that time, the purpose of the program was to allow Federal permit holders to fish in the state waters fishery (where Federal and state laws are inconsistent) and alongside state-only permitted vessels. The program specifies that a state with a scallop fishery may be eligible for state waters exemptions if it has a scallop conservation program that does not jeopardize the biomass and fishing mortality/effort limit objectives of the FMP. Amendment 11 to the FMP (April 14, 2008, 73 FR 20089) and Framework 26 to the FMP (April 21, 2015, 80 FR 22119) expanded the program to include the Northern Gulf of Maine (NGOM) measures. If we find that a state is eligible for the Program, we can exempt federally permitted scallop vessels fishing in state waters from a limited number of Federal scallop regulations as follows: Limited access scallop vessels may fish in state waters outside of scallop days-at-sea; limited access and limited access general category (LAGC) individual fishing quota (IFQ) vessels may be exempt from Federal gear and possession limit restrictions; and vessels with selected scallop permit types may be exempted from regulations pertaining to the NGOM management area.
        Originally, we authorized exemptions for Maine, New Hampshire, and Massachusetts under Amendment 4 to the Scallop FMP. When we implemented Amendment 11 to the FMP in 2008, we suspended the original exemptions pending additional information from the states regarding their state waters fisheries. Maine was the only state to request a new exemption, and has received the state waters exemptions from gear and effort control restrictions for vessels issued Federal scallop permits and fishing exclusively in Maine waters since August of 2009.

        Framework 26 to the FMP specifically added the exemption that would enable some scallop vessels to continue to fish in state waters within the NGOM management area after the Federal NGOM total allowable catch (TAC) is reached. Any state interested in applying for this new exemption must identify the scallop-permitted vessels to which this would apply (i.e., limited access, LAGC IFQ, LAGC incidental, or LAGC NGOM). Vessels would still not be able to fish for scallops in the Federal portion of the NGOM once the TAC is harvested. Maine subsequently revised its exemption in 2015 to allow NGOM vessels to fish in state waters after the NGOM closes. This exemption was issued in November 2015, and will remain in place for the foreseeable future. Maine has requested an additional exemption for the upcoming season. Massachusetts has requested its first state waters exemption since we suspended it with the implementation of Amendment 11.
        We received a request from Maine on December 9, 2016, to expand its current exemption to allow the four IFQ-permitted vessels with Maine state-waters permits to fish in the Maine state-waters portion of the NGOM management area. Maine's scallop fishery restrictions have not changed from 2015; therefore, they remain either equally or more restrictive than Federal scallop fishing regulations and would still limit mortality and effort.
        Massachusetts also sent a request on November 10, 2016, to exempt LAGC IFQ federally permitted vessels that also hold a state permit. Massachusetts also requested that NGOM federally permitted vessels be exempt as well; this is the same exemption that was granted to Maine in 2015. Only the northern portion of Massachusetts state waters, approximately Boston and north, fall within the NGOM management area. The fishery in this area has traditionally been split between a handful of state-only vessels and 12 vessels with both Federal and state permits to fish for scallops. Of these vessels with dual permits, six traditionally fish in both Federal and state waters while the other six only fish in Federal waters.
        After reviewing Massachusetts's request, we required some additional information, which we received on December 19, 2016. After further review, we determined that Massachusetts has a robust management program with controls in place that are equal to or more restrictive than Federal regulations when fishing for scallops in state waters. Massachusetts restricts scallop fishing activity in its waters with limited entry by requiring the state Coastal Access Permit, for which there is currently a moratorium and is only transferrable with the State Director of Marine Fisheries approval. Therefore, increased fishing effort in the future is not a significant concern. Vessels fishing for scallops in Massachusetts state waters also have a daily scallop possession limit of 200 lb (90.7kg). This possession limit is equivalent to the NGOM management area, but more restrictive than the 600-lb (272.1-kg) Federal possession limit for IFQ vessels south of the NGOM area in Federal waters.

        Scallop effort has increased in the NGOM in recent years as the stock has improved in both state and Federal waters. In 2016, the NGOM management area TAC was fully harvested and was closed for the first time since the management area was created in 2008. In 2017, the area was closed on March 23, just over three weeks into the new fishing year and approximately two months earlier than in 2016. State-only permitted scallop vessels are able to fish in state waters after the Federal closure, and this provision would allow those vessels with the requested Federal permit to continue to fish in state waters along with vessels without Federal permits. Based on the information Maine and Massachusetts have submitted regarding their scallop conservation programs, NMFS has preliminarily determined that Massachusetts qualifies for the NGOM state waters exemptions under the Scallop FMP as requested and Maine qualifies for the expansion of the state waters exemption for Maine waters. As required by the scallop fishery regulations, exemptions can only be granted if the state's scallop fishery would not jeopardize the biomass and fishing mortality/effort limit objectives of the FMP.
        Allowing for this NGOM exemption would have no impact on the effectiveness of Federal management measures for the scallop fishery overall or within the NGOM management area because the NGOM Federal TAC is set based only on the Federal portion of the resource. Maine and Massachusetts are the only states that have requested a NGOM closure exemption, and only for state permit holders that also hold a Federal LAGC IFQ or NGOM scallop permit. As such, all other federally permitted scallop vessels would be prohibited from retaining, possessing, and landing scallops from within the NGOM management area, in both Federal and state waters, once the NGOM hard TAC is fully harvested.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, 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.
        The Chief Council for Regulation of the Department of Commerce certified to the Chief Council 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.
        The ability for states with territorial waters located within the NGOM management area to apply for this specific exemption was included into the Scallop FMP through Framework 26, which was implemented in May 2015.
        Entities that own vessels with Federal LAGC NGOM and IFQ permits are the business entities affected by this action. The Small Business Administration (SBA) defines a small business in shellfish fishery as a firm that is independently owned and operated with receipts of less than $11 million annually (see NMFS final rule revising the small business size standard for commercial fishing, 80 FR 81194, December 29, 2015). NMFS issued 217 LAGC IFQ permits in 2015, and 119 of these vessels actively fished for scallops that year. Of the 217 vessels issued LAGC IFQ permits, 88 are homeported in Massachusetts and 6 are homeported in Maine. NMFS issued 99 LAGC NGOM permits in 2015, and 24 of these vessels actively fished. However, out of the 99 LAGC NGOM permitted vessels, 44 are homeported in Massachusetts and 40 are homeported in Maine. NMFS has determined that all 84 LAGC NGOM permitted vessels and 94 LAGC IFQ permitted vessels from both states could benefit from this action. Fishing year 2015 data were used for this certification because these data are the most recent complete data set for a fishing year. Although any of these 119 LAGC IFQ and 44 LAGC NGOM vessels could be impacted, Maine and Massachusetts estimated that the action would impact 4 Maine vessels and 12 Massachusetts vessels. The discussion therefore focuses on the impacts to these 16 vessels, but the impacts described below would increase with additional vessels.
        Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different fishery management plans, even beyond those impacted by the proposed action. Furthermore, multiple permitted vessels and/or permits may be owned by entities with various personal and business affiliations. For the purposes of this certification, “ownership entities” are defined as those entities with common ownership as listed on the permit application. Only permits with identical ownership are categorized as an “ownership entity.” For example, if five permits have the same seven persons listed as co-owners on their permit applications, those seven persons would form one “ownership entity,” that holds those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate “ownership entity” for the purpose of this certification.
        On June 1 of each year, ownership entities are identified based on a list of all permits for the most recent complete calendar year. Matching the potentially impacted 2015 fishing year LAGC IFQ permits to calendar year 2015 ownership data results in 87 distinct ownership entities for the LAGC IFQ fleet. Of these, and based on the SBA guidelines, 84 of the LAGC IFQ entities are categorized as small. The remaining 3 entities were determined to be large businesses classified as a shellfish business. Based on available information for LAGC NGOM permits, NMFS has determined that all 44 NGOM permitted vessels from Massachusetts that would be impacted by this rule are small entities under the SBA guidelines.

        If vessels harvest the full NGOM TAC before the end of a given fishing year, this exemption allowing vessels to continue to fish in their state's respective waters would positively impact 4 LAGC IFQ-permitted vessels home ported in Maine, and up to 12 vessels home ported in Massachusetts that have either an LAGC IFQ or NGOM Federal permit. When Framework 26 added the exemption in 2015, using fishing year 2013 data the average landings value was determined to be $240,159 per LAGC IFQ permit and $39,693 per LAGC NGOM permit. These values include scallops that were landed in state waters because both LAGC IFQ and NGOM vessels have the option to fish in state waters when the NGOM management area is open. When the NGOM TAC is reached and the area closes, the LAGC NGOM permitted vessels can no longer fish and the LAGC IFQ vessels must travel further from home in order to harvest scallops; therefore, the vessel's individual income is affected. Massachusetts estimates that with this exemption, vessels could harvest up to an additional 100,000 lb worth an estimated $1.23 million dollars at a 2015 average price of $12.26/lb. Maine estimates that with this exemption, the four vessels would save on fuel, food, and maintenance costs associated with steaming to fishing grounds outside of the NGOM management area by fishing closer to individual homeports. These cost savings would vary by individual vessel, but would have an overall positive economic benefit. If additional vessels take advantage of the proposed exemption (e.g., more of the potentially impacted small business entities as described above), the positive impacts would only increase. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: June 23, 2017.
          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 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1. The authority citation for part 648 continues to read as follows:

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

        2. In § 648.54, paragraph (a)(4) is revised to read as follows:

          § 648.54
           State waters exemption.
          (a) * * *
          (4) The Regional Administrator has determined that the State of Maine and Commonwealth of Massachusetts both have a scallop fishery conservation program for its scallop fishery that does not jeopardize the biomass and fishing mortality/effort limit objectives of the Scallop FMP. A vessel fishing in State of Maine waters may fish under the State of Maine state waters exemption, subject to the exemptions specified in paragraphs (b) and (c) of this section, provided the vessel is in compliance with paragraphs (e) through (g) of this section. In addition, a vessel issued a Federal Northern Gulf of Maine or Limited Access General Category Individual Fishing Quota permit fishing in State of Maine or Commonwealth of Massachusetts waters may fish under their respective state waters exemption specified in paragraph (d) of this section, provided the vessel is in compliance with paragraphs (e) through (g) of this section.

      [FR Doc. 2017-13579 Filed 6-28-17; 8:45 am]
       BILLING CODE 3510-22-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R08-OAR-2011-0562; FRL-9902-66-Region 8]
        Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Revised Transportation Conformity Consultation Process

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing approval of a State Implementation Plan (SIP) revision submitted by the State of Colorado on May 11, 2012. The May 11, 2012 submittal addresses updates to Regulation Number 10 “Criteria for Analysis of Conformity” of the Colorado SIP including revisions to transportation conformity requirements, transportation conformity criteria and procedures related to interagency consultation, and enforceability of certain transportation related control and mitigation measures. The submittal also removes certain provisions from the SIP so that federal rules will govern conformity of general federal actions. EPA is proposing approval of the submission in accordance with the requirements of section 110 of the Clean Air Act (CAA).

          DATES:
          Comments must be received on or before December 12, 2013.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2011-0562, by one of the following methods:
          • www.regulations.gov. Follow the on-line instructions for submitting comments.
          • Email: russ.tim@epa.gov.

          • Mail: Carl Daly, Director, Air Program, Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
          • Fax: (303) 312-6064 (please alert the individual listed in FOR FURTHER INFORMATION CONTACT if you are faxing comments).
          • Hand Delivery: Carl Daly, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2011-0562. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA, without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document.

            Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Tim Russ, Air Program, Mailcode 8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number (303) 312-6479, fax number (303) 312-6064, or email russ.tim@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. General Information
          II. What is the purpose of this action?
          III. What is the State's process to submit SIP revisions to EPA?
          IV. EPA's Evaluation of the State's May 11, 2012 Submittal
          V. Consideration of Section 110(l) of the Clean Air Act
          VI. Proposed Action
          VII. Statutory and Executive Order Reviews

        Definitions
        For the purpose of this document, the following definitions apply:
        (i) The word Act or initials CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
        (ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.
        (iii) The initials NAAQS mean national ambient air quality standard.
        (iv) The initials SIP mean or refer to State Implementation Plan.
        (v) The words State or Colorado mean the State of Colorado, unless the context indicates otherwise.
        I. General Information
        What should I consider as I prepare my comments for EPA?
        1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

        2. Tips for Preparing Your Comments. When submitting comments, remember to:

        a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
        d. Describe any assumptions and provide any technical information and/or data that you used.
        e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        f. Provide specific examples to illustrate your concerns, and suggest alternatives.
        g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
        h. Make sure to submit your comments by the comment period deadline identified.
        II. What is the purpose of this action?
        EPA is proposing approval of revisions to Colorado's Regulation Number 10, “Criteria for Analysis of Conformity,” (hereafter, “Regulation No. 10”) of the Colorado SIP that address transportation conformity SIP requirements of section 176(c) of the CAA and Title 40, part 51.390(b) of the Code of Federal Regulations (CFR). Specifically, a conformity SIP must address the following transportation conformity requirements: 40 CFR 93.105, which formalizes the consultation procedures; 40 CFR 93.122(a)(4)(ii), which addresses written commitments to control measures that are not included in a metropolitan planning organization's transportation plan and transportation improvement program (TIP) that must be obtained prior to a conformity determination; and 40 CFR 93.125(c), which addresses written commitments to mitigation measures that must be obtained prior to a project-level conformity determination.1

            1 A conformity SIP includes a state's specific criteria and procedures for certain aspects of the transportation conformity process consistent with the federal conformity rule. A conformity SIP does not contain motor vehicle emissions budgets, emissions inventories, air quality demonstrations, or control measures. See EPA's Guidance for Developing Transportation Conformity State Implementation Plans (SIPs) for further background: www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.

        EPA notes that the State submitted prior SIP revisions to Regulation No. 10 by a letter dated June 18, 2009. The June 18, 2009 SIP submittal addressed revisions to numerous aspects and sections in Regulation No. 10. Those prior revisions to Regulation No. 10 are contained in the May 11, 2012 revisions to Regulation No. 10. In addition to further clarifying transportation conformity consultation procedures, the May 11, 2012 revision responded to changes in federal law by removing SIP provisions related to general conformity.
        EPA had previously determined that the June 18, 2009 revisions to Regulation No. 10 were fully approvable. As EPA has determined that the May 11, 2012 revisions to Regulation No. 10 are also fully approvable, we are, therefore, only acting on the May 11, 2012 Regulation No. 10 revisions as they supersede and replace the June 18, 2009 revisions. By approving these May 11, 2012 revisions to Regulation No. 10, EPA will be making them part of the federally enforceable SIP for Colorado under the CAA. EPA also notes that the May 11, 2012 SIP submission is also intended to revise and supersede the conformity SIP that was previously approved by EPA in 2001 (66 FR 48561).
        III. What is the State's process to submit SIP revisions to EPA?
        Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires states to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a state to us.
        With regard to the prior June 18, 2009 revisions to Regulation No. 10, the Colorado Air Quality Control Commission (AQCC) held a public hearing for those revisions on November 20, 2008. There were no public comments. The AQCC adopted the revisions to Regulation No. 10 directly after the hearing. This SIP revision became state effective on December 30, 2008, and was submitted by James B. Martin, on behalf of the Governor, to us on June 18, 2009.
        For the May 11, 2012 revisions to Regulation No. 10, the AQCC held a public hearing for those revisions on December 15, 2011. There were no public comments. The AQCC adopted the revisions to Regulation No. 10 directly after the hearing. This SIP revision became state effective on January 30, 2012 and was submitted by Christopher E. Urbina, on behalf of the Governor, to us on May 11, 2012.
        We have evaluated the Governor's May 11, 2012 submittal for Regulation No. 10 and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. By operation of law under section 110(k)(1)(B) of the CAA, the Governor's May 11, 2012 submittal was deemed complete on November 11, 2012.
        IV. EPA's Evaluation of the State's May 11, 2012 Submittal

        EPA has reviewed the revisions to Regulation No. 10, which is Colorado's Transportation Conformity Consultation (Conformity SIP) element of the SIP, that were submitted by the Governor on May 11, 2012 and we have found that our approval is warranted. We reviewed the State's submittal for consistency with the conformity requirements in 40 CFR 51.390(b), that establish the requirements for conformity consultation SIPs, and with the conformity requirements in 40 CFR sections 93.105, 93.122(a)(4)(ii), and 93.125(c).2 3
           We also consulted our document “Guidance for Developing Transportation Conformity State Implementation Plans (SIPs)”, EPA-420-B-09-001, dated January, 2009.4

            2 “40 CFR 93 Transportation Conformity Rule PM2.5 and PM10 Amendments; Final Rule”, March 24, 2010, 75 FR 14260.

            3 “40 CFR 93 Transportation Conformity Rule Restructuring Amendments; Final Rule”, March 14, 2012, 77 FR 14979.

            4 See: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.

        Our review and conclusions regarding the revisions to Regulation No. 10 are detailed in a memorandum in the docket and include the following:
        (a) Section I “Requirement to comply with the Federal rule”. EPA has reviewed and finds satisfactory the revisions to section I of Regulation No. 10. Section I states that the consultation procedures described in section III address the requirements in 40 CFR 93.105(a) through (e), that the provisions in section IV address the requirements in 40 CFR 93.122(a)(4)(ii), and that the provisions in section V address the requirements in 40 CFR 93.125(c).
        (b) Section II “Definitions”. EPA has reviewed and finds acceptable the revisions and clarifications that the State made to several definitions in section II of Regulation No. 10.

        (c) Section III “Interagency Consultation”. For section III we note that 40 CFR 51.390(b) provides that each state is required to address three specific sections in EPA's transportation conformity rule in 40 CFR Part 93, Subpart A. The relevant provisions that are required to be addressed are: 93.105 (Consultation), 93.122(a)(4)(ii) (Procedures for determining regional transportation-related emissions), and 93.125(c) (Enforceability of design concept and scope and project-level mitigation and control measures). The following is a summary of the key aspects of Regulation No. 10 to address the above requirements, with our evaluation and conclusion of each:
        (1) 40 CFR 93.105, “Consultation,” contains five subsections, (a) through (e). In summary, the general provisions of 93.105(a) state that a conformity SIP shall include procedures for interagency consultation, conflict resolution, and public consultation. Subsection 93.105(b) provides general requirements and factors for well defined interagency consultation procedures in the implementation plan. Organizations such as metropolitan planning organizations (MPO), state and local air quality planning agencies, and state and local transportation agencies with responsibilities for developing, submitting or implementing provisions of an implementation plan must consult with each other. These organizations must also consult with local or regional offices of EPA, the Federal Highway Administration (FHWA), and the Federal Transit Administration (FTA). The provisions of 93.105(c) detail specific processes that must be addressed in interagency consultation procedures. The provisions of 93.105(d) require specific procedures for resolving conflicts, and the provisions of 93.105(e) require specific public consultation procedures.
        EPA has concluded that the above requirements are satisfactorily addressed in the revisions to Regulation No. 10 in section III “Interagency Consultation” which includes; section III.A “Roles and Responsibilities for Transportation Conformity Determinations and Related SIP Development”, section III.B “Establishing a Forum for Regional Conformity Consultation”, section III.C “Topics for Consultation”, section III.D “Process for assuming the location and design concept and scope of projects disclosed to the MPO as required by paragraph (E) of this section, but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR 93.122”, section III.E “Process to ensure that plans for construction of regionally significant projects which are not FHWA/FTA projects (including projects for which alternative locations, design concept and scope, or the no-build options are still being considered), including those by recipients of funds designated under Title 23 U.S.C. or the Federal Transit Act, are disclosed on a regular basis, and to ensure that any changes to those plans are immediately disclosed”, section III.F “Consultation procedures for development of State Implementation Plans”, section III.G “Agreements further describing consultation procedures”, and section III.H “Review of Conformity Determinations by the public, Air Quality Control Commission, and resolution of conflicts”.
        (2) 40 CFR 93.122(a)(4)(ii) requires enforceable written commitments for emission reduction credits. Emissions reduction credits from any control measures that are not included in the transportation plan and TIP, and do not require a regulatory action in order to be implemented, may not be included in the emissions analysis unless the conformity determination includes written commitments for implementation from the appropriate entities. EPA has concluded that this requirement is satisfactorily addressed in section IV “Emission reduction credit for certain control measures” of Regulation No. 10.
        (3) 40 CFR 93.125(c) addresses the enforceability of design concept and scope and project-level mitigation and control measures. Before a conformity determination is made, written commitments must be obtained for any project-level mitigation or control measures. EPA has concluded that this requirement is satisfactorily addressed in section V “Enforceability of design concept and scope and project-level mitigation and control measures” of Regulation No. 10.
        (d) Section VI “Statements of Basis, Specific Statutory Authority, and Purpose”. EPA notes this section VI in the State's regulation merely provides information for the State regarding the SIP revision and is not necessary for an approvable Transportation Conformity Consultation SIP element revision whose purpose is to meet the requirements of CAA section 176(c)(4)(E) and 40 CFR 51.390. Therefore, EPA is not taking any action on this section.
        (e) The May 11, 2012 revision removes former Part A, “Determining Conformity of General Federal Actions to State or Federal Implementation Plans,” from the SIP. After amendments to 40 CFR 51.851 that EPA promulgated on April 5, 2010 (75 FR 17254), provisions governing general conformity are now an optional component of a SIP. The State's removal of Part A is thus consistent with the 2010 amendments. With the removal of Part A from the SIP, the federal rules in Subpart B of 40 CFR Part 93 will directly govern conformity of general federal actions.
        V. Consideration of Section 110(1) of the Clean Air Act
        Section 110(1) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA. EPA has concluded that the above-described revisions to Regulation No. 10 will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA.
        VI. Proposed Action
        EPA is proposing approval of the May 11, 2012 SIP revision that was submitted by Christopher E. Urbina, Executive Director of the Colorado Department of Public Health and Environment, and on behalf of the Governor of the State of Colorado. The May 11, 2012 revision updates sections I, II, III, IV, V of Regulation Number 10 “Criteria for Analysis of Conformity” of the Colorado SIP so as to meet the federal transportation conformity consultation requirements under section 176 of the CAA and 40 CFR 51.390(b), 40 CFR 93.105(a) through (e), 40 CFR 93.122(a)(4)(ii), and 40 CFR 93.125(c). EPA also proposes to approve the removal of former Part A, “Determining Conformity of General Federal Actions to State or Federal Implementation Plans,” from the SIP. EPA notes that revisions were also made to Colorado's Regulation Number 10, section VI “Statements of Basis, Specific Statutory Authority, and Purpose”; however, EPA is not taking any action on the revisions to this section.
        VII. Statutory and Executive Order Reviews

        Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

          Dated: October 28, 2013.
          Shaun L. McGrath,
          Regional Administrator, Region 8.

      [FR Doc. 2013-27030 Filed 11-8-13; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF DEFENSE
        48 CFR Parts 211, 212, and 252
        [DFARS Case 2004-D011]
        Defense Federal Acquisition Regulation Supplement; Radio Frequency Identification

          AGENCY:
          Department of Defense (DoD).

          ACTION:
          Proposed rule with request for comments.

          SUMMARY:

          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add policy pertaining to package marking with passive radio frequency identification (RFID) tags. The proposed changes require contractors to affix passive RFID tags at the case and palletized unit load levels when shipping packaged operational rations, clothing, individual equipment, tools, personal demand items, or weapon system repair parts, to the Defense Distribution Depot in Susquehanna, PA, or the Defense Distribution Depot in San Joaquin, CA.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before June 20, 2005, to be considered in the formation of the final rule.

          ADDRESSES:
          You may submit comments, identified by DFARS Case 2004-D011, using any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Defense Acquisition Regulations Web site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for submitting comments.
          • E-mail: dfars@osd.mil. Include DFARS Case 2004-D011 in the subject line of the message.
          • Fax: (703) 602-0350.
          • Mail: Defense Acquisition Regulations Council, Attn: Ms. Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.
          • Hand Delivery/Courier: Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.
          All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Michele Peterson, (703) 602-0311.

        SUPPLEMENTARY INFORMATION:
        A. Background

        This proposed rule contains requirements for contractors to affix passive RFID tags at the case and palletized unit load levels. The proposed rule requires that specified commodities delivered to specified DoD locations be tagged with a readable passive RFID tag in accordance with the applicable implementation plan at http://www.dodrfid.org/supplierimplementationplan.htm. The data encoding schemes that contractors may write to the tags are identified in the proposed clause and are also located at http://www.dodrfid.org/tagdata.htm. In addition, contractors must send an advance shipment notice in accordance with the procedures at http://www.dodrfid.org/asn.htm, to provide the association between the unique identification encoded on the passive tag(s) and the product information at the applicable case and palletized unit load levels.
        DoD is particularly interested in receiving comments on the following aspects of the rule:
        1. The definitions of the terms “case” and “palletized unit load” and their use throughout the rule.
        2. The impact of providing electronic advance shipment notice information.
        3. Whether small business considerations have been fully addressed in the regulatory flexibility analysis.
        4. Scientific, industry, or manufacturing based evidence from changes or additions to packaging or package systems in order to assess the possible impact, if any, on the environment and materials recycling, including corrugated, metal, and plastic shipping containers and pallets.
        5. What are the options for minimizing and mitigating the impacts on the materials recycling process from the use of RFID tags on shipping containers and pallets?
        This rule was subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
        B. Regulatory Flexibility Act

        This proposed rule may have an impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. DoD has prepared a separate initial regulatory flexibility analysis, available at http://www.dodrfid.org/regflex.htm, which is summarized as follows:

        This proposed rule adds requirements for DoD contractors supplying materiel to the Department to affix passive RFID tags at the case and palletized unit load levels for specified commodities delivered to specified DoD locations. To create an automated and sophisticated end-to-end supply chain, DoD is dependent upon initiating the technology at the point of origin, the DoD commercial suppliers. Without the assistance of the DoD supplier base to begin populating the DoD supply chain with passive RFID tags, a fully integrated, highly visible, automated end-to-end supply chain is untenable. DoD contractors are presently required to print and affix military shipping labels to every package delivered to DoD. Options to comply with the requirements of the proposed rule can be as simple as replacing existing military shipping label printers with RFID-enabled printers. This will allow DoD contractors to print military shipping labels with embedded RFID tags. The regulatory flexibility analysis also details other options and approximate costs to comply. The proposed rule will also require contractors to provide an electronic advance shipment notice in accordance with the procedures at http://www.dodrfid.org/asn.htm, to associate RFID tag data with the corresponding shipment. The objective of the rule is to improve visibility of DoD assets in the supply chain, increase accuracy of shipments and receipts, and reduce the number of logistic “touch points” in order to decrease the amount of time it takes to deliver material to the warfighter. The rule does not duplicate, overlap, or conflict with any other Federal rules.
        C. Paperwork Reduction Act
        This proposed rule contains a new information collection requirement. DoD has submitted the following proposal to OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

          Title: Defense Federal Acquisition Regulation Supplement (DFARS); Radio Frequency Identification Advance Shipment Notices.

          Type of Request: New requirement.

          Number of Respondents: 17,000.

          Responses Per Respondent: 3,981.

          Annual Responses: 67,677,000.

          Average Burden Per Response: Approximately 1.12 seconds.

          Annual Burden Hours: 21,038.

          Needs and Uses: DoD needs an advance shipment notice prior to shipment of materiel containing RFID tag data. DoD receiving personnel use the advance shipment notice to associate the unique identification encoded on the RFID tag with the corresponding shipment. Use of RFID technology permits DoD to create an automated and sophisticated end-to-end supply chain, thereby increasing visibility of assets and permitting delivery of supplies to the warfighter more quickly.

          Affected Public: Businesses or other for-profit and not-for-profit institutions.

          Frequency: On occasion.

          Respondent's Obligation: Required to obtain or retain benefits.

          OMB Desk Officer: Mr. Lewis Oleinick.

        Written comments and recommendations on the proposed information collection should be sent to Mr. Oleinick at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, with a copy to the Defense Acquisition Regulations Council, Attn: Ms. Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.
        To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Acquisition Regulations Council, Attn: Ms. Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

          List of Subjects in 48 CFR Parts 211, 212, and 252
          Government procurement.

          Michele P. Peterson,
          Editor, Defense Acquisition Regulations System.

        Therefore, DoD proposes to amend 48 CFR parts 211, 212, and 252 as follows:
        1. The authority citation for 48 CFR parts 211, 212, and 252 continues to read as follows:

          Authority:
          41 U.S.C. 421 and 48 CFR Chapter 1.

          PART 211—DESCRIBING AGENCY NEEDS
          2. Sections 211.275 through 211.275-3 are added to read as follows:

            211.275
            Radio frequency identification.

            211.275-1
            Definitions.

              Bulk commodities, case, palletized unit load, passive RFID tag, and radio frequency identification are defined in the clause at 252.211-7XXX, Radio Frequency Identification.

            211.275-2
            Policy.
            Radio frequency identification (RFID), in the form of a passive RFID tag, is required for individual cases and palletized unit loads that—
            (a) Contain items in any of the following classes of supply, as defined in DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, AP1.1.11, except that bulk commodities are excluded from this requirement:
            (1) Subclass of Class I—Packaged operational rations.
            (2) Class II—Clothing, individual equipment, tentage, organizational tool kits, hand tools, and administrative and housekeeping supplies and equipment.
            (3) Class VI—Personal demand items (non-military sales items).
            (4) Class IX—Repair parts and components including kits, assemblies and subassemblies, reparable and consumable items required for maintenance support of all equipment, excluding medical-peculiar repair parts; and
            (b) Will be delivered to one of the following locations:
            (1) Defense Distribution Depot, Susquehanna, PA.
            (2) Defense Distribution Depot, San Joaquin, CA.

            211.275-3
            Contract clause.
            Use the clause at 252.211-7XXX, Radio Frequency Identification, in solicitations for contracts that will require delivery of items meeting the criteria at 211.275-2.

          PART 212—ACQUISITION OF COMMERCIAL ITEMS
          3. Section 212.301 is amended by adding paragraph (f)(vii) to read as follows:

            212.301
            Solicitation provisions and contract clauses for the acquisition of commercial items.
            (f) * * *
            (vii) Use the clause at 252.211-7XXX, Radio Frequency Identification, as prescribed in 211.275-3.

          PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          4. Section 252.211-7XXX is added to read as follows:

            252.211-7XXX
            Radio Frequency Identification.

              As prescribed in 211.275-3, use the following clause:
              Radio Frequency Identification (XXX 2005)
              (a) Definitions. As used in this clause—

                Advance shipment notice means an electronic notification used to list the contents of a shipment of goods as well as additional information relating to the shipment, such as order information, product description, physical characteristics, type of packaging, marking, carrier information, and configuration of goods within the transportation equipment.

                Bulk commodities means the following commodities, when shipped in rail tank cars, tanker trucks, trailers, other bulk wheeled conveyances, or pipelines:
              (1) Sand.
              (2) Gravel.
              (3) Bulk liquids (water, chemicals, or petroleum products).
              (4) Ready-mix concrete or similar construction materials.
              (5) Coal or combustibles such as firewood.
              (6) Agricultural products such as seeds, grains, or animal feed.

                Case means either an exterior container within a palletized unit load or an individual shipping container.

                Electronic Product Code TM (EPC) means an identification scheme for universally identifying physical objects via RFID tags and other means. The standardized EPC data consists of an EPC (or EPC identifier) that uniquely identifies an individual object, as well as an optional filter value when judged to be necessary to enable effective and efficient reading of the EPC tags. In addition to this standardized data, certain classes of EPC tags will allow user-defined data. The EPC tag data standards will define the length and position of this data, without defining its content.

                EPCglobal TM means a joint venture between EAN International and the Uniform Code Council to establish and support the EPC network as the global standard for immediate, automatic, and accurate identification of any item in the supply chain of any company, in any industry, anywhere in the world.

                Exterior container means a MIL-STD-129 defined container, bundle, or assembly that is sufficient by reason of material, design, and construction to protect unit packs and intermediate containers and their contents during shipment and storage. It can be a unit pack or a container with a combination of unit packs or intermediate containers. An exterior container may not be used as a shipping container.

                Palletized unit load means a MIL-STD-129 defined quantity of items, packed or unpacked, arranged on a pallet in a specified manner and secured, strapped, or fastened on the pallet so that the whole palletized load is handled as a single unit. A palletized load is not considered to be a shipping container.

                Passive RFID tag means a tag that reflects energy from the reader/interrogator or that receives and temporarily stores a small amount of energy from the reader/interrogator signal in order to generate the tag response. Acceptable tags are—
              (1) EPC Class 0 passive RFID tags that meet the EPCglobal Class 0 specification;
              (2) EPC Class 1 passive RFID tags that meet the EPCglobal Class 1 specification; and
              (3) EPC UHF Generation 2 passive RFID tags that meet the EPCglobal UHF Generation 2 specification.

                Radio Frequency Identification (RFID) means an automatic identification and data capture technology comprising one or more reader/interrogators and one or more radio frequency transponders in which data transfer is achieved by means of suitably modulated inductive or radiating electromagnetic carriers.

                Shipping container means a MIL-STD-129 defined exterior container that meets carrier regulations and is of sufficient strength, by reason of material, design, and construction, to be shipped safely without further packing (e.g., wooden boxes or crates, fiber and metal drums, and corrugated and solid fiberboard boxes).

              (b)(1) Except as provided in paragraph (b)(2) of this clause, the Contractor shall affix passive RFID tags, at the case and palletized unit load packaging levels, for shipments of items that—
              (i) Are in any of the following classes of supply, as defined in DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, AP1.1.11:
              (A) Subclass of Class I—Packaged operational rations.
              (B) Class II—Clothing, individual equipment, tentage, organizational tool kits, hand tools, and administrative and housekeeping supplies and equipment.
              (C) Class VI—Personal demand items (non-military sales items).
              (D) Class IX—Repair parts and components including kits, assemblies and subassemblies, reparable and consumable items required for maintenance support of all equipment, excluding medical-peculiar repair parts; and
              (ii) Are being shipped to—
              (A) Defense Distribution Depot, Susquehanna, PA; or
              (B) Defense Distribution Depot, San Joaquin, CA.
              (2) Bulk commodities are excluded from the requirements of paragraph (b)(1) of this clause.
              (c) The Contractor shall ensure that—

              (1) The data encoded on each passive RFID tag are unique (i.e., the binary number is never repeated on any contract) and conforms to the requirements in paragraph (d) of this clause;
              (2) Each passive tag is readable at the time of shipment in accordance with MIL-STD-129P (Section 4.9.1.1) readability performance requirements; and
              (3) The passive tag is affixed at the appropriate location on the specific level of packaging, in accordance with MIL-STD-129P (Section 4.9.2) tag placement specifications.
              (d) Data syntax and standards. The Contractor shall use one or more of the following data constructs, depending upon the type of passive RFID tag being used in accordance with the tag construct details located at http://www.dodrfid.org/tagdata.htm (version in effect as of the date of the solicitation):
              (1) Class 0, 64 Bit Tag—EPCglobal Serialized Global Trade Item Number (SGTIN), Global Returnable Asset Identifier (GRAI), Global Individual Asset Identifier (GIAI), or Serialized Shipment Container Code (SSCC).
              (2) Class 0, 64 Bit Tag—DoD Tag Construct.
              (3) Class 1, 64 Bit Tag—EPCglobal SGTIN, GRAI, GIAI, or SSCC.
              (4) Class 1, 64 Bit Tag—DoD Tag Construct.
              (5) Class 0, 96 Bit Tag—EPCglobal SGTIN, GRAI, GIAI, or SSCC.
              (6) Class 0, 96 Bit Tag—DoD Tag Construct.
              (7) Class 1, 96 Bit Tag—EPCglobal SGTIN, GRAI, GIAI, or SSCC.
              (8) Class 1, 96 Bit Tag—DoD Tag Construct.
              (9) UHF Generation 2 Tag—EPCglobal SGTIN, GRAI, GIAI, SSCC.
              (10) UHF Generation 2 Tag—DoD Tag Construct.
              (e) Receiving report. The Contractor shall electronically submit advance shipment notice(s) with the RFID tag identification (specified in paragraph (d) of this clause) in advance of the shipment in accordance with the procedures at http://www.dodrfid.org/asn.htm.

              (End of clause)

      [FR Doc. 05-7978 Filed 4-20-05; 8:45 am]
      BILLING CODE 5001-08-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AJ12
        Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River Populations of Bull Trout

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period and notice of availability of draft economic analysis.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce the reopening of the public comment period on the proposal to designate critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout (Salvelinus confluentus), and the availability of the draft economic analysis of the proposed designation of critical habitat. We are reopening the comment period to allow all interested parties to comment simultaneously on the proposed rule and the associated draft economic analysis. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this comment period, and will be fully considered in preparation of the final rule. Copies of the draft economic analysis and the proposed rule for critical habitat designation are available on the Internet at http://pacific.fws.gov/bulltrout or from the Portland Regional Office at the address and contact numbers below.

          DATES:
          We will accept public comments until June 2, 2005.

          ADDRESSES:
          Written comments and materials may be submitted to us by any one of the following methods:
          1. You may submit written comments and information to John Young, Bull Trout Coordinator, U.S. Fish and Wildlife Service, Ecological Services, 911 NE 11th Avenue, Portland, OR 97232;
          2. You may hand-deliver written comments and information to our office, at the above address, or fax your comments to 503/231-6243; or

          3. You may also send comments by electronic mail (e-mail) to: R1BullTroutCH@r1.fws.gov. For directions on how to submit electronic filing of comments, see the “Public Comments Solicited” section. In the event that our Internet connection is not functional, please submit your comments by the alternate methods mentioned above.

          FOR FURTHER INFORMATION CONTACT:
          John Young, at the address above (telephone 503/231-6194; facsimile 503/231-6243).

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited
        We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation (June 25, 2004, 69 FR 35768) and on our draft economic analysis of the proposed designation. We are particularly interested in comments concerning:

        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether the benefits of exclusion outweigh the benefits of specifying such area as part of critical habitat;
        (2) Specific information on the amount and distribution of bull trout habitat, and what habitat is essential to the conservation of this species and why;
        (3) Land use designations and current or planned activities in the subject area and their possible impacts on proposed habitat;
        (4) We request information on how many of the State and local environmental protection measures referenced in the draft economic analysis were adopted largely as a result of the listing of the bull trout, and how many were either already in place or enacted for other reasons, such as those enacted for the conservation of federally-listed salmon;
        (5) Whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation. If not, what costs are overlooked;
        (6) Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
        (7) Whether the draft economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation;
        (8) Our small business screening analysis indicated potentially disproportionate impacts to two economic sectors: sand and gravel mining on the Olympic Peninsula and real estate development in Skagit, Snohomish, and Whatcom Counties. Further investigation showed that these impacts are likely to be more narrowly concentrated. Impacts to the sand and gravel industry appear to be highest within the Wynoochee river watershed, while impacts to Skagit county real estate developers appear to occur disproportionately higher in the western portion of the county, within the Samish river and Lower Skagit river watersheds. Real estate costs also appear disproportionately higher in the western portions of Snohomish (Snohomish River watershed) and Whatcom (Bellingham Bay, Birch Bay, and Nooksack River watersheds) Counties. Based on this information, we are considering excluding these areas from the final designation per our discretion under section 4(b)(2) of the Act. We are specifically seeking comment along with additional information concerning our final determination for these three areas.
        (9) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families. Does our conclusion that the proposed designation of critical habitat will not result in a disproportionate effect to small businesses warrant further consideration, and is there other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities or families (in particular sand and gravel mining on the Olympic Peninsula and real estate development in Skagit, Snohomish, and Whatcom Counties)?;
        (10) Whether the draft economic analysis appropriately identifies all costs that could result from the designation;
        (11) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.
        (12) There are no cost estimates associated with bull trout conservation that relate to changes in hydroelectric dam operation, such as water diversion activities that divert water over dams, as compared to sending water through turbines. Because we have not estimated these potential costs, we are soliciting information from the public for specific case studies where there have been changes in the operation of hydroelectric dams that was due to conservation activities for bull trout.
        (13) We are requesting comment on excluding dams and water projects that are impacted by the proposed designation of critical habitat for the bull trout. The draft economic analysis identified economic impacts to dams and water projects for the Coastal-Puget Sound population of bull trout in section 3.4 of the document, and the Saint Mary-Belly population of bull trout in section 5.3 of the document. We are also requesting comment on excluding these facilities from the final designation.
        (14) The proposed critical habitat designation for the Jarbidge River population of bull trout spans two counties, Owyhee County in Idaho and Elko County in Nevada. As discussed in our draft economic analysis, we have determined that the per capita income for Owyhee County is $17,251, somewhat less than Idaho State's figure of $24,506, and had a poverty rate of 17 percent, greater than the 11.2 percent rate of the State. Total employment in Owyhee County is 3,886, and a large portion of this employment is related to agricultural production. Over 1,000 jobs, or nearly 28 percent of total county employment, are in agricultural production, and mainly connected with irrigated agriculture and cattle ranching. In Owyhee County, 38 percent of the earnings are from jobs directly related to agricultural production. Based on this information from the draft economic analysis, we are specifically requesting comment on excluding Owyhee County, Idaho from the final designation of critical habitat.

        (15) We are considering excluding and are requesting comment on the benefits of excluding or including the following areas or programs within the Puget Sound Coastal bull trout population final critical habitat designation: The areas that form the Washington Department of Natural Resources Habitat Conservation Plan; the area covered by the Simpson Timber Company Habitat Conservation Plan; the area covered by the City of Seattle Habitat Conservation Plan; the area covered by the Tacoma Water Habitat Conservation Plan; the area regulated by the Forest and Fish Report rules under the Washington State Forest Practices Rules and Regulations; National Forest Lands subject to the Northwest Forest Plan; and areas comprising individual tribal reservations located within proposed critical habitat areas within the Puget Sound Coastal, Jarbidge, and Saint Mary Belly populations of bull trout. An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact. We are requesting comment on such impacts and the benefits of including or excluding each of the enumerated areas.

        All previous comments and information submitted during the initial comment period need not be resubmitted. Refer to the ADDRESSES section for information on how to submit written comments and information. Our final determination on the proposed critical habitat will take into consideration all comments and any additional information received.

        Please submit electronic comments in an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: RIN 1018-AJ12” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the Bull Trout Coordinator (see ADDRESSES section and FOR FURTHER INFORMATION CONTACT).
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
        Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours, in the U.S. Fish and Wildlife Service Office at the above address.

        Copies of the draft economic analysis are available on the Internet at: http://pacific.fws.gov/bulltrout or from the Bull Trout Coordinator at the address and contact numbers above. You may obtain copies of the proposed rule from the above address, by calling 503/231-6194, or from our Web site at: http://pacific.fws.gov/bulltrout.

        Background

        We published a proposed rule to designate critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout on June 25, 2004 (69 FR 35768). The proposed critical habitat for the Jarbidge River population designation includes approximately 131 miles (mi) (211 kilometers (km)) of streams in Idaho and Nevada. For the Coastal-Puget Sound population, the proposed critical habitat designation totals approximately 2,290 mi (3,685 km) of streams, 52,540 acres (ac) (21,262 hectares (ha)) of lakes, and marine areas adjacent to 985 mi (1,585 km) of shoreline in Washington. For the Saint Mary-Belly River population, the proposed critical habitat designation totals approximately 88 mi (142 km) of streams and 6,295 ac (2,548 ha) of lakes in Montana. Under the terms of a court-approved settlement agreement, we are required to submit the final rule designating critical habitat to the Federal Register no later than June 15, 2005.
        Critical habitat is defined in section 3 of the Act as the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection; and specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic or any other relevant impact of specifying any particular area as critical habitat. Based upon the previously published proposal to designate critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout, we have prepared a draft economic analysis of the proposed critical habitat designation.
        The draft economic analysis addresses the impacts of bull trout conservation efforts on activities occurring on lands proposed for designation as well as those proposed for exclusion. The analysis measures lost economic efficiency associated with residential and commercial development; hydroelectric projects; non-hydroelectric projects; Federal land management; Federal and State agencies; grazing; mining; recreation; agriculture; private non-Habitat Conservation Plan forestry; road maintenance and transportation; commercial and recreation mining; utilities; dredging and instream activities; culverts; National Pollution Discharge Elimination System (NPDES) permitted activities; and administrative consultation costs.

        The draft economic analysis considers the potential economic effects of actions relating to the conservation of the bull trout, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the bull trout in essential habitat areas. The analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this analysis looks retrospectively at costs that have been incurred since the date the species was listed as a threatened species and considers those costs that may occur in the 19 years following the designation of critical habitat.
        We solicit data and comments from the public on these draft documents, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        Costs related to conservation activities for the proposed bull trout critical habitat pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $656.6 million from 2005 to 2024 assuming a 7 percent discount rate. Overall, the residential and commercial industry is calculated to experience the highest of estimated costs, followed by administrative consultations and Federal land management. Of the three populations that are part of this current proposal, more than 99 percent of the costs occur in Coastal-Puget Sound population area. Annualized impacts of costs attributable to the designation of critical habitat are projected to be approximately $61.8 million.
        Required Determinations—Amended
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        To determine if this proposed designation of critical habitat for the bull trout would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., residential and commercial development, mining, sand and gravel, and agriculture). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our economic analysis of this proposed designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We determined from our analysis that the small business entities that may be affected are land development, and sand and gravel businesses in the Coastal-Puget Sound region, and irrigated farming in the Milk River Basin of the Saint Mary-Belly region. There are no anticipated effects on small business entities in the Jarbidge region.

        On the basis of our analysis of bull trout conservation measures, we determined that this proposed designation of critical habitat for the bull trout would result in potential economic effects to the land development sector in counties of the eastern Puget Sound. The percent of land development revenues attributable to small businesses ranges from 45 to 100 percent in these counties. The anticipated effect of the proposed designation as a percent of small business sales in these counties is approximately 2.3 percent. The highest percent effects occur in Skagit (8.4 percent), Snohomish (3.4 percent), and Whatcom (3.03 percent) Counties. However, these effects appear to be highly concentrated in these counties; in Skagit County, the Samish River and Lower Skagit River/Nookachamps Creek watersheds contain 98 percent of the real estate development impacts within the county, and therefore, impacts to small businesses likely occur in these areas. Similarly, in Snohomish County, the Snohomish River watershed contains approximately 78 percent of real estate impacts, and in Whatcom County, Bellingham Bay, Birch Bay, and Nooksack River watersheds contain 98 percent of real estate impacts. However, as part of our analysis we relied on one North American Industry Classification System code, which may place a burden on too few small businesses and the number of small businesses associated with land development in Skagit, Snohomish, and Whatcom Counties may be understated thereby driving the effect per small business up and resulting in the 3 to 8.4 percent impact in these counties. Therefore, we believe that the proposed designation will not result in a disproportionate effect to these small business entities. However, we are seeking comment on potentially excluding these watersheds from the final designation if it is determined that there will be a substantial and significant impact to small real estate development businesses in these particular watersheds.
        For the sand and gravel mining sector, we determined that the revenues in this sector attributable to small businesses were 76 percent of Snohomish County and 100 percent for Whatcom County, which are both located in the Puget Sound region, and 100 percent for Grays Harbor, which is located in the Olympic region. The anticipated annual effect to these small sand and gravel mining businesses was determined to be 0.6 to 1.5 percent in Puget Sound counties, and approximately 4.5 percent for Grays Harbor County in the Olympic region; however, these effects appear to be concentrated in the Wynoochee River watershed. Because there are few sand and gravel mining businesses located in this one watershed, we believe that the anticipated annual effect to small sand and gravel mining businesses will not be substantial. However, we are also seeking comment on potentially excluding the Wynoochee River watershed from the final designation if it is determined that there will be a substantial and significant impact to small sand and gravel mining businesses in this watershed.
        We determined that this proposed designation of critical habitat for the bull trout would result in a potential economic effect to irrigated farming as part of the Milk River Project from allocation of instream flow in Swiftcurrent Creek, and subsequent reduction in water for irrigation. Since the Milk River Project is managed by the Bureau of Reclamation, we assumed that the costs would be equally shared for the benefit of all irrigators, which would result in an average share of revenue impact per farm of $33 to $115. When the total costs are compared to average sales per farm that represent small businesses, they would account for 0.06 to 0.20 percent of annual revenues.
        Based on this data, we have determined that this proposed designation would not result in a significant economic impact on a substantial number of small entities, in particular to land developers or sand and gravel mining businesses in the Coastal-Puget Sound region, and irrigators farming as part of the Milk River Project located in the Saint Mary-Belly region. We may also exclude these watersheds from the final designation if it is determined that these localized areas have an impact to a substantial number of businesses and a significant proportion of their annual revenues. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of this designation for a more detailed discussion of potential economic impacts to small business entities.
        Executive Order 13211
        On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 because it raises novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant action and no Statement of Energy Effects is required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

        (b) As discussed in the draft economic analysis of the proposed designation of critical habitat for the bull trout, there are some 140 small government entities located adjacent to the boundaries of the proposed designation. However, there is no record of consultations between the Service and any of these governments since the bull trout was listed in 1998. It is likely that small governments involved with developments and infrastructure projects will be interested parties or involved with projects involving section 7 consultations for the bull trout within their jurisdictional areas. Any costs associated with this activity are likely to represent a small portion of a city's budget. Consequently, we do not believe that the designation of critical habitat for the bull trout will significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.

        Takings
        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for bull trout. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of critical habitat for the bull trout does not pose significant takings implications.
        Author
        The primary author of this notice is the U.S. Fish and Wildlife Service.
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: April 26, 2005.
          Craig Manson,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 05-8837 Filed 5-2-05; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [ID 081403B]
        RIN 0648-AP57
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Surf Clam and Ocean Quahog Fishery; Amendment 13 to the Surf Clam and Ocean Quahog Fishery Management Plan

          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 Council (Council) has submitted Amendment 13 to the Atlantic Surf Clam and Ocean Quahog Fishery Management Plan (FMP) for Secretarial review and is requesting comments from the public.  Amendment 13 to the FMP (Amendment 13) would  establish:   A new surf clam overfishing definition; multi-year fishing quotas; a mandatory vessel monitoring system (VMS), when such a system is economically viable; the ability to suspend or adjust the surf clam minimum size limit through a framework adjustment; and an analysis of fishing gear impacts on Essential Fish Habitat (EFH) for surf clams and ocean quahogs.  The primary purpose of this proposed action is to rectify the disapproved surf clam overfishing definition and the EFH analysis and rationale contained in Amendment 12 to the FMP in order to comply with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and to simplify the regulatory requirements of the FMP.

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

          ADDRESSES:
          Comments on the FMP should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.  Mark the outside of the envelope, “Comments on Surf Clam Amendment 13.”  Comments may also be sent via facsimile (fax) to (978) 281-9135.  Comments will not be accepted if submitted via e-mail or the Internet.
          Copies of the Amendment, the Final Supplementary Environmental Impact Statement (FSEIS), Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal Building, 300 S. New Street, Dover, DE 19904-6790.

          FOR FURTHER INFORMATION CONTACT:
          Susan A. Murphy,  Senior Fishery Policy Analyst, 978-281-9252, fax 978-281-9135.

        SUPPLEMENTARY INFORMATION:

        Amendment 12 to the FMP was prepared by the Council to bring the FMP into compliance with the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996.  On April 28, 1999, the Council was notified that NMFS partially approved Amendment 12.  Specifically, two Amendment 12 measures were disapproved, the surf clam overfishing definition and the analysis and rationale for the status quo alternative for addressing fishing gear impacts to EFH.  To rectify these diapprovals, the Council prepared, and NMFS published, a Notice of Intent to Prepare an Environmental Impact Statement (EIS) in the Federal Register, officially beginning the Council's scoping process for Amendment 13 (66 FR 13694, March 7, 2001).  The Council held a scoping hearing on March 21, 2001, and accepted scoping comments on the amendment during the period March 7 through April 6, 2001.  In addition to the surf clam overfishing definition and EFH alternatives, other issues identified for inclusion in the FSEIS were multi-year quotas, a mandatory VMS requirement and a permanent suspension of the surf clam minimum size limit.  The Council identified a range of alternatives for each of these five issues and approved the alternatives in a public hearing document at its May, 2002 meeting.  A Notice of Availability (NOA) on the DSEIS was published in the Federal Register on August 30, 2002 (67 FR 55838), with a comment period ending October 15, 2002.  There were a series of three public hearings held (one each in the states of Maine, New Jersey and Delaware).  After consideration of all public comments, the Council chose the following alternatives at its January, 2003 meeting and voted to submit the Amendment 13 document, including the draft final supplemental environmental impact statement to NMFS. Amendment 13 would  establish:   A new surf clam overfishing definition; multi-year fishing quotas; a mandatory vessel monitoring system (VMS), when such a system is economically viable; the ability to suspend or adjust the surf clam minimum size limit through a framework adjustment; and an analysis of fishing gear impacts on Essential Fish Habitat (EFH) for surf clams and ocean quahogs.

        Public comments are being solicited on Amendment 13 through the end of the comment period stated in this notice of availability.  A proposed rule that would implement Amendment 13 may be published in the Federal Register for public comment, following NMFS' evaluation of the proposed rule under the procedures of the Magnuson-Stevens Act.  Public comments on the proposed rule must be received by the end of the comment period on the Amendment 13 to be considered in the approval/disapproval decision on the Amendment 13.  All comments received by the end of the comment period on Amendment 13, whether specifically directed to  Amendment 13 or the proposed rule, will be considered in the approval/disapproval decision on  Amendment 13.  Any comments received after that date will not be considered in the decision to approve or disapprove Amendment 13.

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

          Dated:  August 18, 2003.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 03-21609 Filed 8-22-03; 8:45 am]
      BILLING CODE 3510-22-S