        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 210907-0178]
        RIN 0648-BK64
        Fisheries of the Northeastern United States; Amendment 7 to the Atlantic Bluefish Fishery Management Plan

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to approve and implement measures included in Amendment 7 to the Atlantic Bluefish Fishery Management Plan, as submitted by the Mid-Atlantic Fishery Management Council. This amendment would revise the goals and objectives of the fishery management plan, reallocate quota between the commercial and recreational fisheries, reallocate commercial quota among the states, implement a rebuilding plan using a constant fishing mortality strategy, revise the sector quota transfer, and revise how management uncertainty is applied during the specifications process. Amendment 7 is intended to use the best information available to update the Bluefish Fishery Management Plan, by responding to changes in stock health and distribution, while recognizing economic need and reliance throughout the management area.

          DATES:
          Comments must be received by October 13, 2021.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2021-0071, by the following method:

            Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.
          1. Go to https://www.regulations.gov, and enter “NOAA-NMFS-2021-0071” in the Search box;
          2. Click the “Comment” icon, complete the required fields; and
          3. Enter or attach your comments.

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

          The Mid-Atlantic Fishery Management Council prepared an environmental assessment (EA) for this action that describes the proposed measures and other considered alternatives. The EA also provides a thorough analysis of the biological, economic, and social impacts of the proposed measures and other considered alternatives. Copies of Amendment 7, including the EA, the Regulatory Impact Review, and the Regulatory Flexibility Act analysis prepared in support of this action, are available upon request from: Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. These documents are also accessible via the internet at https://www.mafmc.org/supporting-documents.

          FOR FURTHER INFORMATION CONTACT:
          Cynthia Ferrio, Fishery Policy Analyst, (978) 281-9180.

        SUPPLEMENTARY INFORMATION:
        Background
        The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively manage bluefish from Maine to Florida under the Atlantic Bluefish Fishery Management Plan (FMP). This joint Bluefish FMP was adopted over 30 years ago in 1990. Since that time, the only substantial changes to management measures were made through Amendment 1 to the FMP in 2000, which established most measures and regulations still managing the fishery today, based on fishery data from 1981-1989. The Council and Commission initiated Amendment 7 to the FMP as a joint action in December 2017 to respond to changes in the bluefish fishery that have occurred over the past 30-40 years, while the FMP has remained largely unaltered. When first initiated, Amendment 7 was intended to address a comprehensive range of management issues, from the goals and objectives of the FMP to the allocation and transfer of quota between the commercial and recreational sectors.
        In August 2019, an operational stock assessment determined that bluefish is overfished but not subject to overfishing. Following this determination, the Council and Commission's Bluefish Management Board added development of a rebuilding plan to Amendment 7. The Council was notified of the overfished stock status determination in November 2019; therefore, this amendment must be implemented by the end of November 2021 to ensure that the rebuilding plan is compliant with the timing requirements of section 304(e)(3) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This timing will also allow the other changes proposed in Amendment 7 to be effective for the 2022 fishing year, beginning on January 1, 2022. Final alternatives for Amendment 7 set forth in a Public Hearing Document were approved at the joint meeting of the Council and Commission's Bluefish Management Board in February 2021, and public hearings on those alternatives were held throughout the spring. On June 8, 2021, the Council and Board took final action to approve Amendment 7, with the intent that the measures would be effective for the 2022 fishing year in January.

        A Notification of Availability (NOA) for Amendment 7 was published in the Federal Register on September 1, 2021 (86 FR 48968). The Magnuson-Stevens Act allows NMFS as the implementing agency to approve, partially approve, or disapprove measures recommended by the Council in a regulatory amendment based on whether the measures are consistent with the FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. As such, NMFS is soliciting public comments in response to the NOA, and the proposed measures described below, on whether they are consistent with the Bluefish FMP, the Magnuson-Stevens Act, and other applicable law. The comment period on the NOA ends on November 1, 2021. All public comments submitted by this date, whether specifically directed to the NOA or this proposed rule, will be considered in our decision to approve, partially approve, or disapprove Amendment 7. Comments on this proposed rule that are received before the end of this rule's comment period (see DATES) will be considered in the decision to implement measures proposed by the Council. Comments received after the end of the NOA comment period will not be considered for this action.
        Proposed Measures

        This action proposes to implement Amendment 7 to the Bluefish FMP, as approved by the Council and Commission. The purpose of this action is to implement a rebuilding plan for bluefish, as required by the Magnuson-Stevens Act, and to update the FMP using the best scientific information available; responding to changes in the overall fishery over time.
        FMP Goals and Objectives
        The FMP's existing goals and objectives were adopted in 1991 with the original FMP, and have remained unchanged since that time. Amendment 7 would revise these goals and objectives to better reflect the current fishery. While the FMP currently only has one overarching goal and a few general objectives, the proposed revisions contain multiple goals linked to more specific objectives to better guide management. The following proposed revisions were developed with extensive input from the public.
        • Goal 1: Conserve the bluefish resource through stakeholder engagement to maintain sustainable recreational fishing and commercial harvest.
        ○ Objective 1.1: Achieve and maintain a sustainable spawning stock biomass and rate of fishing mortality.
        ○ Objective 1.2: Promote practices that reduce release mortality within the recreational and commercial fishery.
        ○ Objective 1.3: Maintain effective coordination between the National Marine Fisheries Service, Council, Commission, and member states by promoting compliance and to support the development and implementation of management measures.
        ○ Objective 1.4: Promote compliance and effective enforcement of regulations.
        ○ Objective 1.5: Promote science, monitoring, and data collection that support and enhance effective ecosystem-based management of the bluefish resource.
        • Goal 2: Provide fair and equitable access to the fishery across all user groups throughout the management unit.
        ○ Objective 2.1: Ensure the implementation of management measures provides fair and equitable access to the resource across all user groups within the management unit.
        ○ Objective 2.2: Consider the economic and social needs and priorities of all groups that access the bluefish resource in the development of new management measures.
        ○ Objective 2.3: Maintain effective coordination with stakeholder groups to ensure optimization of economic and social benefits.
        Quota Reallocation Between the Commercial and Recreational Fishery Sectors
        The existing FMP allocated quota between the commercial and recreational fishery sectors based on landings data from 1981-1989. This action proposes to re-allocate quota between the sectors to better represent recent trends in the fishery. Amendment 7 would allocate 14 percent of the annual catch limit (ACL) to the commercial fishery, and 86 percent to the recreational fishery, representing a 3-percentage point shift from the existing 17/83 split. These revised sector allocations are based on updated catch data from 1981-2018, and landings data from 2014-2018 and 2009-2018, as all three time series resulted in the same allocation.
        Commercial Quota Reallocation Among the States
        The coastwide commercial quota for bluefish is allocated annually to each state within the management unit from Maine to Florida based on a percentage determined in the FMP. As with the sector allocation percentages, the existing state-by-state commercial quota allocations have not been updated since their implementation as a part of Amendment 1 (65 FR 45844; July 26, 2000), and are based on landings data from 1981-1989. Amendment 7 would revise the state-by-state quota allocations based on a recent, representative 10 years of landings data (2009-2018) for the commercial fishery to better capture how the stock and fishing activity have shifted over the years. The proposed allocations also include a 0.1-percent minimum default allocation to ensure that no state in the management unit is excluded from the commercial fishery entirely. To allow industry and state managers to adjust more easily to these changes in commercial quota allocation, this action proposes to phase in the changes over a period of seven years. The percent shift in allocation for each state would be divided evenly over the phase-in period, so each state would only experience 1/7th of the change in allocation each year through 2028.
        Rebuilding Plan
        The 2019 operational stock assessment determined that bluefish is overfished but not subject to overfishing. Amendment 7 would implement a rebuilding plan that uses a constant fishing mortality model (F = 0.154) to rebuild the stock in seven years. This rebuilding plan was selected because it allows for least disruption to industry and minimizes negative socio-economic impacts while still rebuilding within the 10-year period required by the Magnuson-Stevens Act. However, because this model projects acceptable biological catch (ABC) values during rebuilding that are higher than those generated by the Council's risk policy (5-year rebuilding alternative), an exemption to the FMP's “most restrictive ABC” requirement needs to be included with this amendment. This would allow the Council's Scientific and Statistical Committee to recommend higher ABCs than the risk policy would typically generate during a rebuilding plan as long as they are consistent with the rebuilding plan, and the plan is projected to rebuild within the necessary time period. This proposed rebuilding plan has been developed to begin in 2022, and would be reviewed and revised as necessary every two years, as required by section 304(e)(7) of the Magnuson-Stevens Act.
        Sector Quota Transfer
        Currently, the FMP allows a quota transfer from the recreational sector to the commercial sector up to a maximum final commercial quota of 10.5 million lb (4,763 mt) per year if the recreational fishery is not expected to attain the full recreational harvest limit in that given year. This action proposes to revise the measures regarding this sector transfer to allow quota to be transferred in either direction (from commercial to recreational or vice versa). This amendment would also revise the maximum transfer to be up to 10 percent of the acceptable biological catch, allowing the size of the transfer to scale with the current biomass of the stock. A restriction would also be added to disallow sector transfers when the bluefish stock is overfished or subject to overfishing.
        Management Uncertainty in the Specifications Process

        This amendment would revise how management uncertainty can be accounted for during the specifications process. In the current FMP, the fishery-level ACL may be reduced by a buffer to account for sources of management uncertainty before quota is allocated to the commercial and recreational fishery sectors. This action proposes to revise the specifications process so that the management uncertainty buffer is applied separately within each sector. This targeted approach would provide more management flexibility, and allow for the identification of sources of management uncertainty that are specific to one sector and are not present in the other.

        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 Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        The Council reviewed the proposed regulations for this action and deemed them necessary and appropriate to implement consistent with section 303(c) of the Magnuson-Stevens Act.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

        The Mid-Atlantic Council prepared an EA for this action that analyzes the impacts of the measures contained in this proposed rule. This EA includes an initial regulatory flexibility analysis (IRFA), as required by section 603 of the Regulatory Flexibility Act (RFA), which is supplemented by information contained in the preamble of this proposed rule. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small business entities, as well as the comparative possible impacts of the other alternatives considered. A copy of the detailed RFA analysis is available from the Council (see ADDRESSES). A summary of the Amendment 7 IRFA analysis follows.
        Description of the Reasons Why Action by the Agency Is Being Considered, and the Statement of the Objectives of, and Legal Basis for, This Proposed Rule

        This action is taken under the authority of the Magnuson-Stevens Act and regulations at 50 CFR part 648. This action proposes a range of management measures for the Atlantic bluefish fishery. A complete description of the action, why it is being considered, and its legal basis, are contained in the EA (see ADDRESSES) and in this rule's preamble, and are not repeated here.
        Description and Estimate of the Number of Small Entities to Which This Proposed Rule Would Apply
        This proposed rule affects those small entities engaged in commercial fishing operations in the Atlantic bluefish fishery (those with commercial bluefish permits), and those with Federal party/charter recreational permits for bluefish. Private recreational anglers are not considered “entities” under the RFA, thus economic impacts on private anglers are not considered here. For the purposes of the RFA analysis, the ownership entities (or firms), not the individual vessels, are considered to be the regulated entities. Ownership entities are defined as those entities or firms with common ownership personnel as listed on the permit application. Because of this, some vessels with bluefish permits may be considered to be part of the same firm because they may have the same owners. To identify these small and large firms, vessel ownership data from the permit database were grouped according to common owners and sorted by size. In terms of RFA, a business primarily engaged in commercial fishing is classified as a small business if it has combined annual receipts not in excess of $11 million, for all its affiliated operations worldwide. A business primarily engaged in for-hire (party/charter) fishing is classified as small business if it has combined annual receipts not in excess of $8 million.
        The current ownership data set used in this analysis is based on calendar years 2018-2020 (the most recent and complete data available). According to the vessel ownership database, 526 commercial fishing affiliate firms landed bluefish during the 2018-2020 period, with 521 of those entities categorized as small businesses, and 5 categorized as large businesses. The three-year average (2018-2020) combined gross receipts (all species combined) for all small entities only was $197,251,017 and the average bluefish receipts was $899,490; this indicates that bluefish revenues contributed approximately 0.46 percent of the total gross receipts for these small entities.
        For the recreational for-hire (party/charter) fishery, 361 for-hire affiliate firms reported revenue from recreational fishing for various species from 2018-2020. All 361 of those firms are categorized as small businesses. It is not possible to derive what proportion of the overall revenues for these for-hire firms came from fishing activities for an individual species. Nevertheless, given the popularity of bluefish as a recreational species in the Mid-Atlantic and New England, it is likely that revenues generated from bluefish may be somewhat important for many of these firms at certain times of the year. The 3-year average (2018-2020) combined gross receipts (all for-hire fishing activity combined) for these small entities was $49,916,903, ranging from less than $10,000 for 105 entities (lowest value $46) to over $1,000,000 for 8 entities (highest value $3.6 million).
        Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of This Proposed Rule
        There are no new reporting, recordkeeping, or other compliance requirements contained in this proposed rule, or any of the alternatives considered for this action.
        Federal Rules Which May Duplicate, Overlap, or Conflict With This Proposed Rule
        NMFS is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule.
        Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities
        The proposed amendment would implement several measures that could potentially impact small businesses in both the commercial and recreational sectors of the bluefish fishery; most notably the reallocation of quota among the sectors and states, the rebuilding plan, and the revision of sector transfer of quota. While the revised FMP goals and objectives and the sector-specific accounting of management uncertainty during the specifications process could have an indirect economic impact on businesses, these alternatives are largely administrative and not discussed here. On average, bluefish revenues contributed approximately 0.46 percent to the total gross receipts for the small businesses and 0.02 percent for the large businesses. Due to the slightly higher dependence on bluefish for the small businesses compared to the large businesses, the small businesses may feel the effects of this action to a greater extent than the large businesses. Even so, the small businesses did not rely on bluefish for a substantial amount of their annual income either; although when considered individually, some businesses may be more dependent on this species than others.

        Several alternatives were considered for the sector quota allocations based on different time series of catch and landings data; however, all of these alternatives resulted in quota shifting from the commercial sector to the recreational sector by varying degrees. The No Action alternative would continue to allocate 83-percent of the fishery-level ACL to the recreational fishery, and 17 percent to the commercial fishery, while the alternatives considered shift this distribution by 1, 3, 4, and 6 percentage points to the recreational sector, with the preferred alternative being the 3-point shift. None of these alternatives affect the total ABC or ACL available to harvest each year, rather how opportunity to do so is distributed between commercial and recreational entities. The 3-point shift to the recreational sector is better representative of how the overall fishery operates, and while it may have a slight negative impact on commercial businesses, it would comparably benefit recreational businesses.
        Some potential negative impact sector allocation from the prior proposed measure may be mitigated further by the proposed alternative to revise the sector transfer. The proposed sector transfer provisions would allow quota (in an amount up to 10-percent of the ABC) to be transferred from either sector to the other (from commercial to recreational or vice versa). This management tool would allow for supplementation of quota to either sector in a year when the assigned allocations may not support the business needs of the sector.
        Similar to the sector reallocations, several alternatives were considered for the reallocation of commercial quota to the states, based on different time series of landings data. Because these alternatives do not affect the total amount of quota available in the fishery, but rather how it is distributed geographically, it is unlikely that they would have a direct economic impact on commercial businesses as a whole; however, they may have a disproportionate, indirect impact on some businesses more than others. To mitigate potential negative effects on entities in states that would experience the largest degree of change in commercial allocation, the Council and Board proposed to phase in the allocation changes equally over seven years. This would make the difference in quota allocation that each state would experience each year much smaller, and thus minimize the magnitude of any potential negative effects as a result.
        There were three main rebuilding plan strategies considered in this amendment: (1) A plan using constant harvest model to rebuild the stock in four years; (2) a plan based on the Council's risk policy to rebuild the stock in five years; and (3) a plan using a constant fishing mortality model to rebuild the stock in seven years. A “No Action” alternative was not possible because of the Magnuson-Stevens Act requirement to rebuild an overfished stock. Even though the constant harvest and risk policy plans would rebuild the stock more quickly, the constant fishing mortality rebuilding plan was preferred because the more gradual changes it proposes provides the most economic stability and least disruption of business operations while still rebuilding the stock within 10 years.
        All alternatives have the potential to impact businesses in the commercial sector; whereas all alternatives except the commercial quota allocation to the states may affect recreational businesses, which comprise the majority of the fishery overall. However, most of the alternatives in this action affect small businesses indirectly and have minimal direct economic impacts. For example, they dictate the process for developing future landings limits, or shift the distribution of quota/effort, but do not change the overall annual amount. That being said, public input was solicited and considered throughout the development of this amendment, and the economic impact on small businesses was minimized wherever possible. Section 7.4 of the EA contains a more detailed discussion on the economic impacts of each of the alternatives considered in this amendment, and the full RFA analysis can be found in section 8.10.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: September 7, 2021.
          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 § 648.21, revise paragraph (c)(1) and add paragraph (c)(3) to read as follows:

          § 648.21
          Mid-Atlantic Fishery Management Council risk policy.

          (c) * * *

          (1) Unless otherwise allowed in paragraph (c)(2) or (3) of this section, for instances in which the application of the risk policy approaches in paragraph (b) of this section using OFL distribution results in a more restrictive ABC recommendation than the calculation of ABC derived from the use of FREBUILD at the MAFMC-specified overfishing risk level as outlined in paragraph (a) of this section, the Scientific and Statistical Committee (SSC) shall recommend to the MAFMC the lower of the ABC values.

          (3) The SSC may specify higher ABCs for bluefish based on FREBUILD, as outlined in paragraph (a) of this section, instead of the risk policy approaches in paragraph (b) of this section in order to implement a rebuilding program that would rebuild this stock by 2028.

        3. In § 648.161, revise the section heading and paragraph (a) to read as follows:

          § 648.161
          Bluefish Sector ACLs and Annual Catch Targets (ACTs).
          (a) Sector ACLs and ACTs. As a part of the bluefish specifications process, the Bluefish Monitoring Committee shall allocate a specified percentage of the fishery-level ACL to the commercial and recreational fishery sectors, and identify and review the relevant sources of sector-specific management uncertainty to recommend ACTs for each sector.
          (1) Sectors. The sum of the commercial and recreational sector-specific ACLs shall be less than or equal to the fishery level ACL. A total of 86 percent of the fishery-level ACL will be allocated to the recreational fishery. A total of 14 percent of the fishery-level ACL will be allocated to the commercial fishery.
          (2) Management uncertainty. The Bluefish Monitoring Committee shall recommend any reduction in catch necessary to address management uncertainty and recommend ACTs for each sector, consistent with paragraph (a) of this section, after the sector allocation described in paragraph (a)(1) of this section. The Bluefish Monitoring Committee recommendations shall identify any sector-specific sources of management uncertainty affecting the fishery, technical approaches to mitigating these sources of uncertainty, and any additional relevant information considered in the ACT recommendation and adjustment process.
          (3) Periodicity. ACTs may be established on an annual basis for up to 3 years at a time, dependent on whether the SSC provides single or multiple-year ABC recommendations.

        4. In § 648.162, revise paragraphs (b), (d), (f), and (g) to read as follows:

          § 648.162
          Bluefish specifications.

          (b) TAL. The Bluefish Monitoring Committee shall recommend sector-specific TALs less than or equal to the ACTs through the specifications process.
          (1) Recreational harvest limit and commercial quota. If research quota is specified as described in paragraph (g) of this section, the recreational harvest limit and commercial quota will be based on the respective sector TALs remaining after the deduction of the applicable research quota.
          (2) Sector quota transfer. During the specifications process, the Bluefish Monitoring Committee may recommend a transfer of quota from the commercial fishery to the recreational fishery or from the recreational fishery to the commercial fishery; based on a review and comparison of expected landings for each sector and the recreational harvest limit and commercial quota. The amount of quota transferred between sectors may not exceed 10-percent of the ABC for that fishing year. No transfer may occur when the bluefish stock is overfished or subject to overfishing.

          (d) Distribution of annual commercial quota. (1) The annual commercial quota will be distributed to the states, based upon the following percentages; state each followed by its allocation in parentheses: ME (0.1091); NH (0.2154); MA (10.1150); RI (9.6079); CT (1.0872); NY (19.7582); NJ (13.8454); DE (0.4945); MD (1.9175); VA (5.8657); NC (32.0278); SC (0.1034); GA (0.1023); and FL (4.7788). Note: The sum of all state allocations does not add to 100 because of rounding. This distribution includes a minimum allocation of 0.1 to every state in the management unit.
          (2) The allocation percentages in paragraph (d)(1) of this section will be phased in over a 7-year period beginning in 2022. The percent change in allocation from those prior to 2022 for each state is divided equally by seven, and will be applied incrementally each year until the final allocations listed in paragraph (d)(1) are in full effect for fishing year 2028.

          (f) Revision of state allocation. Based upon any changes in the landings data available from the states for the base years 2009-2018, the Atlantic States Marine Fisheries Commission (ASMFC) and the MAFMC may recommend to the Regional Administrator that the states' shares specified in paragraph (d)(1) of this section be revised. The MAFMC's and the ASMFC's recommendation must include supporting documentation, as appropriate, concerning the environmental and economic impacts of the recommendation. The Regional Administrator shall review the recommendation of the ASMFC and the MAFMC. After such review, NMFS will publish a proposed rule in the Federal Register to implement a revision in the state shares. After considering public comment, NMFS will publish a final rule in the Federal Register to implement any warranted changes in allocation.
          (g) Research quota. See § 648.22(g).

      [FR Doc. 2021-19620 Filed 9-10-21; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 120604138-2289-01]
        RIN 0648-BC21
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fishery

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to re-open a portion of the Georges Bank Closed Area to the harvest of Atlantic surfclams and ocean quahogs. The area has been closed since 1990 due to the presence of toxins known to cause paralytic shellfish poisoning. The proposed re-opening is based on a request from the Mid-Atlantic Fishery Management Council and the recent adoption of a testing protocol into the National Shellfish Sanitation Program.

          DATES:
          Written comments must be received no later than 5 p.m. eastern standard time, on October 1, 2012.

          ADDRESSES:
          You may submit comments, identified by NOAA-NMFS-2012-0121, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking portal http://www.regulations.gov.

          • Fax: (978) 281-9177, Attn: Jason Berthiaume.
          • Mail: Daniel S. Morris, Acting Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Proposed Opening of GB PSP Closed Area.”

            Instructions: All comments received are part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Jason Berthiaume, Fishery Management Specialist, phone (978) 281-9177, fax (978) 281-9135.

        SUPPLEMENTARY INFORMATION:

        Background
        The Georges Bank (GB) Closed Area, located in the Exclusive Economic Zone east of 69°00′ W. long. and south of 42°20′ N. lat., has been closed to the harvest of surfclams and ocean quahogs since 1990 due to red tide blooms that cause paralytic shellfish poisoning (PSP). The closure was implemented based on advice from the U.S. Food and Drug Administration (FDA) after samples tested positive for toxins (saxitoxins) that cause PSP. These toxins are produced by the alga Alexandrium fundyense, which can form blooms commonly referred to as red tides, or harmful algal blooms, and can produce toxins that accumulate in water column filter-feeding shellfish. Shellfish contaminated with the toxin, if eaten in large enough quantity, can cause illness or death in humans.

        Due to inadequate testing or monitoring of this area for the presence of PSP-causing toxins, the closure was made permanent in 1999, under Amendment 12 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan (FMP). Since the implementation of the closure, NOAA's National Ocean Service has provided grants to the FDA, the states of Maine, New Hampshire, and Massachusetts, and a clam industry representative to collect water and shellfish samples from Federal waters off southern New England. NMFS has also issued exempted fishing permits (EFPs) since 2008 to surfclam and ocean quahog vessels to conduct research in the closure area. Testing of clams on GB by the FDA in cooperation with NMFS and the fishing industry under the EFPs demonstrate that PSP toxin levels have been well below the regulatory limit established for public health safety (FDA 2010). The FDA and NMFS also developed a Protocol for Onboard Screening and Dockside Testing in Molluscan Shellfish that is designed to test and verify that clams harvested from GB are safe. The protocol was formally adopted into the National Shellfish Sanitation Program at the October 2011 Interstate Shellfish Sanitation Conference.
        On June 30, 2010, NMFS published a similar proposal in the Federal Register (75 FR 37745) to re-open a portion of the GB Closed Area. This proposed rule was later withdrawn due to public comments that opposed re-opening the GB Closed Area without having a testing protocol in place. Now that the protocol has been formally adopted, NMFS is proposing to re-open a portion of the GB Closed Area with the requirement that the protocol be used on all fishing trips into the area.
        Three areas are being considered for re-opening. To allow the industry to access as much of the area as possible and to generate public comment on all options, NMFS is proposing to re-open the largest of the three areas (Alternative A). The Alternative A area reflects the largest area that was previously permitted for sampling under an EFP, and the other alternatives areas are smaller subsets of the larger Alternative A area. The area proposed for re-opening is defined in the table below and the remaining portion of the GB Closed Area would remain closed.
        BILLING CODE 3510-22-P

          EP31AU12.023

          EP31AU12.024

        BILLING CODE 3510-22-C
        There have been no recent PSP toxin measurements recorded above regulatory limits, and PSP toxin monitoring would be conducted under the terms of the protocol for all trips into the area. Further, NMFS has the authority to close any area to harvesting of surfclams and ocean quahogs to prevent contaminated shellfish from entering the market. Any future closures or openings within the GB Closed Area will be based upon PSP toxin testing results conducted under the terms of the protocol, the advice of the FDA, and the most current information available.
        NMFS proposes to re-open the portion of the GB Closed Area to the harvest of surfclams and ocean quahogs, under its authority at § 648.76(c). However, we will continue to defer to the FDA in matters of public health and, should we receive new advice from the FDA, we will reconsider which portion of the GB Closed Area should be opened for harvesting.

        In addition, while NMFS proposes to re-open a portion of the GB Closed Area as requested by the Mid-Atlantic Fishery Management Council, NMFS also recognizes that red-tide events can vary inter-annually. For that reason, NMFS has prepared an environmental assessment (EA) that analyzes the proposed re-opening and two smaller area alternatives within the GB Closed Area, to cover the possibility that the proposed opening could shift or vary, depending on a change in conditions or if new information becomes available. Given the temporal nature of PSP conditions, NMFS is seeking public comment on whether this proposed re-opening should be implemented and, if so, which of the three areas should be re-opened (Alternatives A, B, or C).
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with the Atlantic Surfclam and Ocean Quahog FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

        NMFS prepared a draft EA for this action that analyzes the impacts of this proposed rule. A copy of the draft EA is available from the Federal e-Rulemaking portal http://www.regulations.gov. Type “NOAA-NMFS-2012-0121” in the Enter Keyword or ID field and click search. A copy of the EA is also available upon request from NMFS Northeast Acting Regional Administrator, Daniel S. Morris (see ADDRESSES).
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows.
        The proposed measures would only affect vessels holding an active Federal open access surfclam and/or ocean quahog permit. In 2011, there were 47 Federal open-access surfclam and/or ocean quahog permitted vessels that landed surfclams and/or ocean quahogs. All of these vessels fall within the SBA's definition of a small business. This action proposes to re-open an area that has previously been closed. The surfclam and ocean quahog fishery is managed under an Individual Transferable Quota system, and, since overall quotas are not being changed as a result of this action, no additional harvest would be permitted with this action. Participating vessels would still be able to fish in any of the existing areas open to the harvest of surfclams and ocean quahogs. Those vessels that may fish in the area proposed to be opened may experience increased operational costs, if they choose to fish there; however, these costs may be offset due to increased productivity and efficiency of the fishing effort because of greater abundance of surfclams and ocean quahogs in the GB Closed Area. Regardless, any increased costs would not be considered significant.
        In addition, for the past 5 years, NMFS has issued EFPs allowing the harvest of surfclams using the FDA-approved Protocol for Onboard Screening and Dockside Testing in Molluscan Shellfish. Because NMFS has issued EFPs to harvest surfclams within the GB Closure Area, and given that surfclams are more valuable than ocean quahogs, it is likely that vessels would continue this trend of targeting surfclams from the GB Closed Area. Due to the seasonal variability of PSP toxin levels, any or all of the areas associated with this action could open or close based on PSP conditions. Given this uncertainty as to whether the area would remain open, it is not anticipated that there would be an overall increase in participation in the surfclam and ocean quahog fishery due to the opening of this area. Therefore, because this action only proposes to re-open an area that has previously been closed, and because no net change in fishing effort, participation in the fishery, or fishery expenses is expected, this action will not have a significant economic effect on a substantial number of small entities. 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, Reporting and recordkeeping requirements.

          Dated: August 28, 2012.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 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 § 648.76, paragraph (a)(4) is revised to read as follows:

            § 648.76
            Closed areas.
            (a) * * *
            (4) Georges Bank. The paralytic shellfish poisoning (PSP) contaminated area, which is located on Georges Bank, and is located east of 69° W. long., and south of 42°20′ N., lat., is closed to the harvest of surfclams and ocean quahogs. A portion of the Georges Bank Closed Area is open to harvest surfclams and ocean quahogs provided the vessel complies with the requirements specified in paragraph (a)(4)(i) of this section. The open portion of the Georges Bank Closed Area is defined by straight lines connecting the following points in the order stated:

              Open Portion of the Georges Bank Closed Area

                Point
                N. Latitude
                W. Longitude

                1
                42°00′
                68°50′

                2
                42°00′
                67°20′

                3
                41°00′
                67°20′

                4
                41°00′
                67°10′

                5
                40°40′
                67°10′

                6
                40°40′
                68°30′

                7
                41°30′
                68°30′

                8
                41°30′
                68°50′

             (i) Requirements for Vessels Fishing in the Open Portion of the Georges Bank Closed Area. A vessel may fish in the open portion of the Georges Bank Closed Area as specified in this paragraph (a)(4), provided it complies with the following terms and conditions:
            (A) A valid letter of authorization issued by the Regional Administrator must be onboard the vessel; and
            (B) The vessel must adhere to the terms and conditions of the PSP testing protocol as adopted into the National Shellfish Sanitation Program by the Interstate Shellfish Sanitation Conference. All surfclams and ocean quahogs harvested from the area must be handled in accordance with the terms and conditions of the protocol from the first point of harvest through completion of testing and release by the State Shellfish Control Authority as required by the PSP testing protocol; and
            (C) Prior to leaving port at the start of a fishing trip, the vessels' owner or operator must declare its intent to fish in the area through the vessel's vessel monitoring system.

      [FR Doc. 2012-21586 Filed 8-30-12; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 060606151-6151-01; I.D. 051906A]
        RIN 0648-AU33
        Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 43

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

          ACTION:
           Proposed rule; request for comments.

          SUMMARY:
           NMFS proposes regulations to implement Framework Adjustment 43 (Framework 43) to the NE Multispecies Fishery Management Plan (FMP), which was developed by the New England Fishery Management Council (Council). Framework 43 proposes measures to address the incidental catch of NE multispecies by vessels fishing for Atlantic  herring. The proposed measures would establish a Herring Exempted Fishery. Vessels issued a Category 1 Atlantic herring fishing permit (Category 1 vessels) would be authorized to possess incidentally caught haddock until the catch of haddock reached the level specified as an incidental haddock catch cap; upon attainment of the haddock catch cap, all herring vessels would be limited to 2,000 lb (907 kg) of herring per trip, if any of the herring on board was caught within the Gulf of Maine/Georges Bank (GOM/GB) Herring Exemption Area defined in Framework 43. Herring Category 1 vessels would also be authorized to possess up to 100 pounds (45 kg) of other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake), and would be required to provide advance notification of their intent to land for purposes of enforcement. Atlantic herring processors and dealers that sort herring catches as part of their operations would be required to cull and report all haddock.

          DATES:
           Comments must be received by July 6, 2006.

          ADDRESSES:

          Copies of supporting documents, including the Environmental Assessment, Regulatory Impact Review, Initial Regulatory Flexibility Analysis (RIR/IRFA), and Essential Fish Habitat Assessment are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.gov.
          Written comments on the proposed rule may be sent by any of the following methods: • Mail to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on Herring Framework 43”;
          • Fax to Patricia A. Kurkul , 978-281-9135;

          • E-mail to the following address: HerringFramework43@NOAA.gov. Include in the subject line of the e-mail comment the following document identifier: “Comments on Herring Framework 43;” or

          • Electronically through the Federal e-Rulemaking portal: http://www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:

           Eric Jay Dolin, Fishery Policy Analyst, 978-281-9259, e-mail at eric.dolin@noaa.gov, fax at 978-281-9135.

        SUPPLEMENTARY INFORMATION:
        Background

        Currently, regulations established under the FMP for the Northeast (NE) multispecies (groundfish) fishery prohibit vessels fishing for Atlantic herring from possessing or landing any groundfish species, including haddock. In July 2004, NMFS's Office of Law Enforcement (OLE) observed prohibited juvenile haddock in catches being landed by midwater trawl vessels fishing for herring on GB. Representatives from the herring industry reported that they were encountering haddock unusually high in the water column and were unable to avoid catching them, even with midwater trawl gear. Many midwater trawl vessels ceased fishing for herring on GB in the summer of 2004 due to concerns about haddock bycatch and the fact that possession of haddock was prohibited, and the herring landings from the GB area decreased. As a result, NMFS, at the Council's request, implemented an emergency rule that established an incidental catch allowance for haddock to allow the herring fishery to operate on GB during 2005 while the Council developed a long-term solution. The emergency rule was published by NMFS in the Federal Register on June 13, 2005 (70 FR 34055), and extended for 180 days on December 8, 2005 (70 FR 72934). The emergency rule expires on June 6, 2006, and the Council developed Framework 43 to address this issue on a permanent basis.
        The Council requested emergency action on March 30, 2005. The Council discussed the issue further at subsequent meetings and voted on November 17, 2005, to establish the Council meeting that day as the initial meeting to develop permanent measures to address the issue in Framework 43. The measures contained in Framework 43 were included in the Draft Environmental Impact Statement and public hearing document for Amendment 1 to the Atlantic Herring FMP (Amendment 1). The Council voted on February 2, 2006, to adopt the measures in Amendment 1 and Framework 43, but to submit Framework 43 in advance of Amendment 1 in order to establish measures for the fishery as soon as possible during the 2006 summer season.
        The proposed measures would apply to all Category 1 vessels on all trips that do not use NE multispecies days-at-sea (DAS). The Atlantic herring regulations establish two vessel permits: Category 1 permits are issued to vessels that have landed, or intend to land, 500 metric tons (mt) or more of herring in the upcoming year; Category 2 permits are issued to vessels that do not intend to land 500 mt or more of herring. However, the public should be aware that the Council is proposing to revise the Atlantic herring vessel permit requirements in Amendment 1. Amendment, which has been submitted to NMFS for review, would revise the vessel permitting requirements for the herring fishery by establishing limited access permits for vessels that fish for large amounts of herring, and maintain an open access permit for vessels that catch herring incidentally. If the limited access permit measures proposed in Amendment 1 are approved and implemented by NMFS, the measures proposed in this rule would, in the future, be applicable to all vessels issued limited access permits
        The proposed measures in Framework 43 would: (1) Authorize the possession of haddock by Category 1 vessels up to the amount established as a cap on total haddock catch by such vessels; (2) establish a cap on the amount of haddock that could be caught by Category 1 vessels that is equal to 0.2 percent of the total combined target total allowable catch (TAC) for GOM and GB haddock; and (3) establish a Herring Exempted Fishery and define a GOM/GB Herring Exemption Area in which any herring permitted vessel that catches any herring from this area would be limited to 2,000 lb (907 kg) per trip when the haddock catch cap is attained; (4) authorize Category 1 vessels to possess an incidental catch of up to 100 lb (45 kg) of regulated NE multispecies other than haddock (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake); (5) suspend the minimum fish size for NE multispecies possessed by Category 1 vessels; (6) prohibit Category 1 vessels from selling haddock for human consumption and prohibit dealers from purchasing haddock from such vessels for human consumption; (7) prohibit Category 1 vessels from discarding haddock at sea; (8) require herring processors that cull landings to report all culled haddock, and retain such haddock for 12 hr for inspection by enforcement officials; and (9) require Category 1 vessels to provide advance notification of landing via the Vessel Monitoring System (VMS).
        The haddock catch cap specified would be applicable to the NE multispecies fishing year (May 1 April 30), which differs from the herring fishing year (January 1 December 31). If the haddock catch cap is attained by the herring fishery, the 2,000-lb (907-kg) limit on herring in the GOM/GB Herring Exemption Area would be in effect until the end of the NE multispecies fishing year. For example, the 2006 haddock catch cap would be specified for the period May 1, 2006 April 30, 2007, and the 2007 haddock catch cap for the period May 1, 2007 April 30, 2008. If the catch of haddock by Category 1 vessels reached the 2006 catch cap at any time prior to the end of the NE multispecies 2006 fishing year (April 30, 2007), the catch of herring by Category 1 vessels would be limited to 2,000 lb (907 kg) per trip in the GOM/GB Herring Exemption Area through April 30, 2007 (which is 4 months after the end of the 2006 herring fishing year), at which time the 2007 catch cap would go into effect. The final rule to establish the NE multispecies haddock TACs was published on April 28, 2006 (71 FR 25095). Based on the haddock TACs in that rule, the proposed haddock catch cap would be 161,377 lb (73.2 mt) for the period May 1, 2006 - April 30, 2007 [GB + GOM haddock TAC = 35,309 + 1,279 = 36,588 mt; 0.2 percent x 36,588 mt = 73.2 mt]. Upon implementation of Herring Amendment 1, if approved, the haddock landings from May 1, 2006 forward would be applied to the catch cap for the NE multispecies 2006 fishing year.

        Prior to Framework 43, herring midwater trawl gear (single trawls and pair trawls) and purse seine gear were each defined by the NE Multispecies FMP as exempted gear, that is, gear that is not capable of catching NE multispecies. The Council determined that this classification was not consistent with the available information documenting catches of NE multispecies. Framework 43 would instead establish the Herring Exempted Fishery to enable the fishery to be prosecuted as an exempted fishery, and authorize an incidental catch of small amounts of NE multispecies. The total amount of haddock set-aside for the herring fishery is not expected to cause either the GB or GOM haddock TACs to be exceeded or impact the availability of haddock for groundfish vessels, because the haddock set-aside is set in consideration of the fact that haddock bycatch has previously occurred in the herring fishery.
        Management Measures
        (1) Authorize the Possession of Haddock by Category 1 Vessels
        While temporarily authorized under the emergency regulations, the NE multispecies regulations prohibit vessels using midwater trawl or purse seine gear from possessing or landing NE multispecies. This action would allow Category 1 vessels to possess and land haddock of unlimited amounts until the haddock bycatch cap is attained, and to possess and land up to 100 lb (45 kg) of other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) on all trips that do not use a NE multispecies DAS. This provision is intended to reflect the incidental catch of NE multispecies by Category 1 vessels.
        (2) Establish Cap on Amount of Haddock Caught by Category 1 Vessels
        This action would establish a catch cap for Category 1 vessels equal to 0.2 percent of the total combined target TAC for GOM and GB haddock specified for each NE multispecies fishing year. The haddock catch cap specified for the period May 1, 2006 - April 30, 2007, would be 161,377 lb (73.2 mt). The haddock catch cap is intended to limit the total amount of haddock caught by the directed herring fishery while allowing the fishery to operate with a small amount of incidental catch. The information that would be used to monitor the haddock catch cap includes: at-sea observer reports, Federal dealer/processor reports, and haddock landings reported by law enforcement agents as a result of catch inspections. These measures are supported by the provisions that would require specified dealers/processors to report and retain culled haddock (see measure 8) and require vessels to provide advance notification of landing (see measure 9). Once the haddock cap has been caught, all vessels issued a herring permit or fishing in the Federal portion of the GOM/GB Herring Exemption Area (see 3) would be prohibited from fishing for, possessing, or landing herring in excess of 2,000 lb (907 kg) of herring per trip in or from the GOM/GB Herring Exemption Area, except that such vessels may possess more than 2,000 lb (907 kg) of herring that was caught outside of the area and may transit the area, with gear properly stowed.
        (3) Define the GOM/GB Herring Exemption Area
        The herring fishery is prosecuted at various times of the year throughout the GOM and GB. Herring vessels would be authorized to fish for amounts of herring allowed under their applicable permits until the haddock catch cap applicable to the fishery is projected to be attained. Framework 43 identifies the area where 90 percent of the haddock catch historically has occurred and defines the area as the GOM/GB Herring Exemption Area. Once the cap is determined to be attained, the Regional Administrator would announce that all herring vessels would be limited to the 2,000-lb (907-kg) catch limit for herring if any of the herring is caught in the GOM/GB Herring Exemption Area. In the event that the haddock catch cap is reached, the measures that would require processors/dealers to retain and report culled haddock, and the requirement for Category 1 vessels to provide advance notification of landing, would remain in effect to enhance the enforceability of the closure. Category 1 vessels and other herring vessels would not be subject to the 2,000-lb (907-kg) herring limit if all herring caught, possessed, or landed by the vessel is from outside the GOM/GB Herring Exemption Area, and provided the vessel complies with the gear stowage requirements in the Exemption Area as specified in the regulations.
        (4) Establish a Regulated NE Multispecies Possession Allowance for Category 1 Vessels
        This action would establish a possession allowance for Category 1 vessels to authorize them to possess and land up 100 lb (45 kg) of regulated multispecies other than haddock (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) on all trips that do not use a NE multispecies DAS. Vessels fishing under a NE multispecies DAS would be subject to the possession limits specified for such fishing activity.
         (5) Suspend the Minimum Fish Size for NE Multispecies Possessed by Category 1 Vessels
        This action would exempt Category 1 vessels from the minimum size requirements for haddock and the other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake). The suspension of the minimum size is necessary because, in a high-volume fishery such as the herring fishery, it is difficult, if not impossible, to cull fish that resemble herring in size and shape. Herring are often pumped directly from the nets into the holds, with no sorting of the catch. Thus, it is impracticable to sort out haddock and other regulated multispecies that are smaller than the current minimum fish size.
        (6) Prohibit the Purchase or Sale for Human Consumption of NE Multispecies Landed by Category 1 Vessels
        To eliminate any incentive for Category 1 vessels to target haddock or other regulated multispecies, this action would prohibit the sale of haddock and those other species caught by Category 1 vessels for human consumption. It also prohibits Atlantic herring dealers and processors from purchasing such fish to be sold for human consumption. It is not feasible to establish a similar prohibition on the sale of haddock or the other regulated multispecies for use as bait because herring catches landed for use as bait are generally offloaded by pumping the fish from the vessel hold into tanker trucks. As a result, some haddock and other regulated multispecies could remain mixed in with the herring catch. The Council concluded that it would be impossible to require all such landings to be culled or sorted, and would be inequitable to make downstream purchasers of such bait legally liable for the presence of haddock or other regulated multispecies.
        (7) Prohibit Discarding of Haddock at Sea by Category 1 Vessels
        In order to more fully account for all the haddock caught by Category 1 vessels, this action would prohibit the discarding of haddock at sea.
        (8) Require Specified Herring Dealers/Processors to Retain Haddock Landed by Category 1 Vessels

        This action would require herring dealers and processors that sort herring as part of their operations to separate out, report, and retain for 12 hr all haddock landed by a Category 1 vessel in order to facilitate monitoring and enforcement of the haddock catch cap. The haddock would have to be set aside and retained for 12 hr to facilitate inspection by enforcement officials, and the vessel that landed the haddock must be clearly identified. The sale of these culled haddock, for any purpose, would be prohibited. All herring dealers and processors would have to continue to comply with the current reporting requirements that require federally permitted dealers and processors to report all fish purchased or received with a vessel trip identifier via the weekly electronic dealer reporting system as specified under § 648.7(a).
        (9) Require Category 1 Vessels to Provide VMS Notification Prior to Landing
        This action would require Category 1 vessels to provide notification to NMFS of their intent to land at least 6 hr prior to landing. This provision is intended to facilitate the enforcement and monitoring of the haddock catch cap by giving enforcement agents sufficient notice of landing to enable them to meet a fishing vessel at the dock to observe offloading or sample the catch.
        Classification
        This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

        The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, which describes the economic impacts this proposed rule, if adopted, would have on small entities. A copy of the IRFA can be obtained from the Council or NMFS (see ADDRESSES) or via the Internet at http://www.nero.noaa.gov. A summary of the analysis follows:
        Statement of Objective and Need
        A description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to this proposed rule and is not repeated here.
        Description and Estimate of Number of Small Entities to Which the Rule Will Apply
        During the 2005 fishing year, 115 vessels had Category 1 permits (the class to which this rule applies), with 38 of these vessels averaging more than 2,000 lb (907 kg) of herring per trip. There are no large entities, as defined in section 601 of the RFA, participating in this fishery. Therefore, there are no disproportionate economic impacts between large and small entities.
        Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        The collection-of-information requirement in this proposed rule (requiring Category 1 vessels to provide notification to NMFS of their intent to land at least 6 hr prior to landing) has already been approved by OMB as follows: Haddock Bycatch Notification of Landing, Office of Management and Budget (OMB) control number 0648 0525, (5 min/response).
        Minimizing Significant Economic Impacts on Small Entities
        Three alternatives were considered in the development of this action. The first would have continued the program put into place by the emergency action. Specifically, this would have established a 1,000 lb (453 kg) incidental catch possession limit on haddock, and a 100 lb (45.3 kg) incidental catch possession limit on other regulated multispecies, with no limit on the total amount of haddock or other regulated multispecies that could be caught. The second alternative is the one proposed in this action. The third alternative is no action, under which the herring vessels would not  be allowed to possess any multispecies.
        Compared to the no-action alternative, the other alternatives significantly minimize the economic impacts on herring vessels. Both the proposed action and the non-selected alternative prevent direct economic loss resulting from herring harvest that would be foregone by vessel owners concerned about haddock bycatch and the potential for resulting regulatory violations under the no-action alternative. By allowing for the incidental catch of groundfish, both the proposed action and the other alternative would enable herring vessels to continue fishing even if they encounter groundfish. This is particularly important in herring Management Area 3 (GB), where herring vessels are most likely to encounter groundfish. The herring fishery has not fully harvested the allowed catch from Area 3 and the resource in that area can support increased fishing effort. Estimate foregone revenues from not fishing in Area 3 would be $2,123,727 based on preliminary reported herring landings during 2005 (13,029 mt) and an average price for herring of $163 per mt. Foregone revenues could be as high as $8,150,000 based on utilization of the entire available TAC from Area 3 (50,000 mt). This assumes that the herring fleet would not fish in Area 3 at all for fear of being in violation of the prohibition on the possession of haddock and other regulated groundfish on every trip and therefore represents an upper bound to the range of expected impacts. Also, the proposed action would have the least impact on small entities because it would not impose a 1,000 lb (453 kg) possession limit, thereby allowing vessels that unintentionally run into a large amount of haddock to continue fishing, while still imposing an upper limit on haddock catches by shutting down 90 percent of the area where haddock is caught if the herring fleet reaches the haddock TAC .

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: June 14, 2006.
          James W. Balsiger,
          Acting Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

          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 § 648.2, the definition of “Exempted gear” is revised to read as follows:

          § 648.2
          Definitions.

            Exempted gear, with respect to the NE multispecies fishery, means gear that is deemed to be not capable of catching NE multispecies, and includes: Pelagic hook and line, pelagic longline, spears, rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots and traps, shrimp trawls (with a properly configured grate as defined under this part), and surfclam and ocean quahog dredges.
          3. In § 648.14, paragraph (bb)(20) is revised, and paragraphs (a)(166), (a)(167), (a)(168), and (bb)(21) through (24) are added to read as follows:

          § 648.14
          Prohibitions.
          (a) * * *
          (166) Sell, purchase, receive, trade, barter, or transfer haddock or other regulated multispecies, or attempt to sell, purchase, receive, trade, barter, or transfer haddock or other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) for, or intended for, human consumption landed by a Category 1 herring vessel as defined in § 648.2.
          (167) Fail to comply with requirements for herring processors/dealers that handle individual fish to separate out and retain all haddock offloaded from a Category 1 herring vessel, and to retain such catch for at least 12 hr with the vessel that landed the haddock clearly identified by name.

          (168) Sell, purchase, receive, trade, barter, or transfer, or attempt to sell, purchase, receive, trade, barter, or transfer to another person any haddock or other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) separated out from a herring catch offloaded from a Category 1 herring vessel as defined in § 648.2.
          (bb) * * *
          (20) If the vessel has been issued a Category 1 herring permit and is fishing for herring, fail to notify the NMFS Office of Law Enforcement of the time and date of landing via VMS at least 6 hr prior to landing or crossing the VMS demarcation line on its return trip to port.
          (21) Possess, land, transfer, receive, sell, purchase, trade, or barter, or attempt to transfer, receive, purchase, trade, or barter, or sell more than 2,000 lb (907 kg) of Atlantic herring per trip taken from the GOM/GB Herring Exemption Area defined in § 648.86(a)(3)(ii)(A)(1) following the effective date of the determination that the haddock cap has been reached pursuant to § 648.86(a)(3), unless all of the herring possessed or landed by a vessel was caught outside of that area.
          (22) If fishing with midwater trawl or a purse seine gear, fail to comply with the requirements of § 648.80(d) and (e).
          (23) Discard haddock at sea if a Category 1 herring vessel.
          (24) Transit the GOM/GB Herring Exemption Area when that area is limited to the 2,000-lb (907-kg) limit specified in § 648.86(a)(3)(ii)(A)(1) with more than 2,000 lb (907 kg) of herring, unless all the herring on board was caught outside of that area and all fishing gear is stowed and not available for immediate use as required by § 648.23(b).

        4. In § 648.15, paragraphs (d) and (e) are added to read as follows:

          § 648.15
          Facilitation of enforcement.
          (d) Retention of haddock by herring dealers and processors. (1) Federally permitted herring dealers and processors, including at-sea processors, that receive herring from Category 1 herring vessels, and that cull or separate out from the herring catch all fish other than herring in the course of normal operations, must separate out and retain all haddock offloaded from a Category 1 herring vessel. Such haddock may not be sold, purchased, received, traded, bartered, or transferred, and must be retained for at least 12 hours with the vessel that landed the haddock clearly identified, and law enforcement officials must be given access to inspect the haddock.
          (2) All haddock separated out and retained is subject to reporting requirements specified at § 648.7.
          (e) Retention of haddock by Category 1 herring vessels. All Category 1 herring vessels must retain all the haddock that they catch.
          5. In § 648.80, paragraphs (d), (e), and (g)(3) are revised to read as follows:

          § 648.80
          NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing.
          (d) Midwater trawl gear exempted fishery. Fishing may take place throughout the fishing year with midwater trawl gear of mesh size less than the applicable minimum size specified in this section, provided that:
          (1) Midwater trawl gear is used exclusively;
          (2) When fishing under this exemption in the GOM/GB Exemption Area, as defined in paragraph (a)(17) of this section, and in the area described in § 648.81(c)(1), the vessel has on board a letter of authorization issued by the Regional Administrator, and complies with the following restrictions:
          (i) The vessel only fishes for, possesses, or lands Atlantic herring, blueback herring, or mackerel in areas north of 42°20′ N. lat. and in the areas described in § 648.81(a)(1), (b)(1), and (c)(1); and Atlantic herring, blueback herring, mackerel, or squid in all other areas south of 42°20′ N. lat.; and
          (ii) The vessel is issued a letter of authorization for a minimum of 7 days.
          (3) The vessel must carry a NMFS-approved sea sampler/observer, if requested by the Regional Administrator;
          (4) The vessel does not fish for, possess or land NE multispecies, except that Category 1 herring vessels may possess and land haddock or other regulated NE multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) consistent with the incidental catch allowance and bycatch caps specified in § 648.86(a)(3). Such haddock or other regulated NE multispecies may not be sold, purchased, received, traded, bartered, or transferred, or attempted to be sold, purchased, received, traded, bartered, or transferred for, or intended for, human consumption. Haddock or other regulated NE multispecies that is separated out from the herring catch pursuant to § 648.15(d) may not be sold, purchased, received, traded, bartered, or transferred, or attempted to be sold, purchased, received, traded, bartered, or transferred for any purpose. Category 1 vessels must retain all haddock they catch;
          (5) To fish for herring under this exemption, vessels issued a Category 1 herring permit defined in § 648.2 must provide notice to NMFS of the vessel name; contact name for coordination of observer deployment; telephone number for contact; and the date, time, and port of departure, at least 72 hr prior to beginning any trip into these areas for the purposes of observer deployment; and

          (6) All Category 1 herring vessels on a declared herring trip must notify NMFS Office of Law Enforcement through VMS of the time and place of offloading at least 6 hr prior to crossing the VMS demarcation line on their return trip to port, or, for vessels that have not fished seaward of the VMS demarcation line, at least 6 hr prior to landing. The Regional Administrator may adjust the prior notification minimum time through publication of a notice in the Federal Register consistent with the Administrative Procedure Act.
          (e) Purse seine gear exempted fishery. Fishing may take place throughout the fishing year with purse seine gear of mesh size smaller than the applicable minimum size specified in this section, provided that:
          (1) The vessel uses purse seine gear exclusively;
          (2) When fishing under this exemption in the GOM/GB Exemption Area, as defined in paragraph (a)(17) of this section, the vessel has on board a letter of authorization issued by the Regional Administrator and complies with the following:
          (i) The vessel only fishes for, possesses, or lands Atlantic herring, blueback herring, mackerel, or menhaden; and
          (ii) The vessel must carry a NMFS-approved sea sampler/observer, if requested to do so by the Regional Administrator;
          (3) The vessel is issued a letter of authorization for a minimum of 7 days, and cancels it only as instructed by the Regional Administrator; and

          (4) The vessel does not fish for, possess or land NE multispecies, except that Category 1 herring vessels may possess and land haddock or other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) consistent with the incidental catch allowance and bycatch caps specified in § 648.86(a)(3). Such haddock or other regulated multispecies may not be sold, purchased, received, traded, bartered, or transferred, or attempted to be sold, purchased, received, traded, bartered, or transferred for, or intended for, human consumption. Haddock or other regulated multispecies that is separated out from the herring catch pursuant to § 648.15(d) may not be sold, purchased, received, traded, bartered, or transferred, or attempted to be sold, purchased, received, traded, bartered, or transferred for any purpose. Category 1 vessels must retain all haddock they catch;
          (5) To fish for herring under this exemption, vessels issued a Category 1 herring permit as defined in § 648.2 must provide notice to NMFS of the vessel name; contact name for coordination of observer deployment; telephone number for contact; and the date, time, and port of departure, at least 72 hr prior to beginning any trip into these areas for the purposes of observer deployment; and

          (6) All Category 1 herring vessels must notify NMFS Office of Law Enforcement through VMS of the time and place of offloading at least 6 hr prior to crossing the VMS demarcation line on their return trip to port, or, for vessels that have not fished seaward of the VMS demarcation line, at least 6 hr prior to landing. The Regional Administrator may adjust the prior notification minimum time through publication of a notice in the Federal Register consistent with the Administrative Procedure Act.
          (g) * * *
          (3) Pair trawl prohibition. No vessel may fish for NE multispecies while pair trawling, or possess or land NE multispecies that have been harvested by means of pair trawling, except as authorized under paragraph (d) of this section.

        6. In § 648.83, paragraph (b)(4) is added to read as follows:

          § 648.83
          Multispecies minimum fish sizes.
          (b) * * *
          (4) Category 1 herring vessels may possess and land haddock and other regulated multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) that are smaller than the minimum size specified under § 648.83, consistent with the bycatch caps specified in §§ 648.86(a)(3) and 648.86 (j). Such fish may not be sold for human consumption.

        7. In § 648.85, paragraph (d) is added to read as follows:

          § 648.85
          Special management programs.
          (d) Incidental catch allowance for Category 1 herring vessels. The incidental catch allowance for Category 1 herring vessels is defined as 0.2 percent of the combined target TAC for Gulf of Maine haddock and Georges Bank haddock (U.S. landings only) specified according to § 648.90(a) for a particular multispecies fishing year.

        8. In § 648.86, paragraph (i) is moved and reserved and paragraphs (a)(3) and (k) are added to read as follows:

          § 648.86
          Multispecies possession restrictions.
          (a) * * *
          (3)(i) Incidental catch allowance for herring Category 1 vessels. Category 1 herring vessels defined in § 648.2 may possess and land haddock on all trips that do not use a NE multispecies DAS, subject to the requirements specified in § 648.80(d) and (e).
          (ii) Haddock Incidental Catch Cap. (A)(1) When the Regional Administrator has determined that the incidental catch allowance in § 648.85 (d) has been caught, all vessels issued a herring permit or fishing in the Federal portion of the GOM/GB Herring Exemption Area, defined below, are prohibited from fishing for, possessing, or landing herring in excess of 2,000 lb (907 kg) per trip in or from the GOM/GB Herring Exemption Area, unless all herring possessed and landed by the vessel were caught outside the GOM/GB Herring Exemption Area and the vessel complies with the gear stowage provisions specified in paragraph (a)(3)(ii)(A)(3) of this section while transiting the Exemption Area. Upon this determination, the haddock possession limit is reduced to 0 lb (0 kg) for all Category 1 herring vessels regardless of where they were fishing. In making this determination, the Regional Administrator shall use haddock landings observed by NMFS-approved observers and law enforcement officials, and reports of haddock catch submitted by vessels and dealers pursuant to the reporting requirements of this part. The GOM/GB Herring Exemption Area is defined by the straight lines connecting the following points in the order stated (copies of a map depicting the area are available from the Regional Administrator upon request):

            GB/GOM Herring Exemption Area

              Point
              N. lat.
              W. long.

              1
              41° 33.05′
              70° 00′

              2
              41° 20′
              70° 00′

              3
              41° 20′
              69° 50′

              4
              41° 10′
              69° 50′

              5
              41° 10′
              69° 30′

              6
              41° 00′
              69° 30′

              7
              41° 00′
              68° 50′

              8
              39° 50′
              68° 50′

              9
              39° 50′
              66° 40′

              10
              40° 30′
              66° 40′

              11
              40° 30′
              64° 44.34′

              12
              41° 50′
              66° 51.94′

              13
              41° 50′
              67° 40′

              14
              44° 00′
              67° 40′

              15
              44° 00′
              67° 50′

              16
              44° 10′
              67° 50′

              17
              44° 27′
              67° 59.18′

              18
              ME, NH, MA Coast lines

              19
              41° 33.05′
              70° 00′

          (2) The haddock incidental catch cap specified is for the NE multispecies fishing year (May 1 April 30), which differs from the herring fishing year (January 1 December 31). If the haddock catch cap is attained by the Category 1 herring fishery, the 2,000-lb (907-kg) limit on herring possession and landings in the GOM/GB Herring Exemption Area will be in effect until the end of the NE multispecies fishing year. For example, the 2006 haddock catch cap would be specified for the period May 1, 2006 April 30, 2007, and the 2007 haddock catch cap would be specified for the period May 1, 2007 April 30, 2008. If the catch of haddock by Category 1 vessels reached the 2006 catch cap at any time prior to the end of the NE multispecies fishing year (April 30, 2007), the 2,000-lb (907-kg) limit on possession or landing herring in the GOM/GB Herring Exemption Area would extend through April 30, 2007, at which time the 2007 catch cap would go into effect.
          (3) A vessel may transit the GOM/GB Herring Exemption Area with more than 2,000 lb (907 kg) of herring when the haddock catch cap in § 648.86 (a)(3)(ii)(A)(1) has been caught, providing that all of the herring possessed or landed by the vessel was caught outside of the GOM/GB Herring Exemption Area and all fishing gear is stowed and not available for immediate use as required by § 648.23(b).
          (i) [Reserved.]
          (k) Other regulated NE multispecies possession restrictions for herring vessels. Incidental catch allowance for herring Category 1 vessels. Category 1 herring vessels defined in § 648.2 may possess and land up to 100 lb (45 kg) of other regulated NE multispecies (cod, witch flounder, plaice, yellowtail flounder, pollock, winter flounder, windowpane flounder, redfish, and white hake) on all trips that do not use a multispecies DAS, subject to the requirements specified in § 648.80(d) and (e). Such fish may not be sold for human consumption.

      [FR Doc. 06-5537 Filed 6-16-06; 11:43 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [AZ 063-0042; FRL-7013-8]
        Revisions to the Arizona State Implementation Plan, Pinal County Air Quality Control District

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve a revision to the Pinal County Air Quality Control District (PCAQCD) portion of the Arizona State Implementation Plan (SIP). This revision concerns volatile organic compound (VOC) emissions from organic solvents, dry cleaners, coating operations, and degreasers. We are proposing to remove from the SIP a local rule regulating these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). This action is a reproposal of EPA's July 14, 2000 proposed rule (65 FR 43727) to disapprove this revision to the Arizona SIP. We do not plan to finalize our July 14, 2000 proposed disapproval. We are taking comments on this proposal and plan to follow with a final action.

          DATES:
          Any comments must arrive by August 16, 2001.

          ADDRESSES:
          Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
          You can inspect copies of the submitted SIP revision and EPA's technical support document (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revision at the following locations:

          Arizona Department of Environmental Quality, 3033 North Central Avenue, Phoenix, AZ 85012
          Pinal County Air Quality Control District, 31 North Pinal Street, Building F, Florence AZ 85232

          FOR FURTHER INFORMATION CONTACT:
          Yvonne Fong, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1199.

        SUPPLEMENTARY INFORMATION:
        Throughout this document, “we,” “us” and “our” refer to EPA.

          Table of Contents
          I. The State's Submittal
          A. What rule is the State requesting to be rescinded?
          B. Are there other versions of this rule?

          C. What is the purpose of the submitted rule revision?

          II. EPA's Evaluation and Action
          A. How is EPA evaluating the rule rescission?
          B. Does the rule rescission meet the evaluation criteria?
          C. Public comment and reproposal.
          III. Background Information
          Why was this rule submitted and why is it being rescinded?
          IV. Administrative Requirements

        I. The State's Submittal
        A. What Rule Is the State Requesting To Be Rescinded?
        Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the Arizona Department of Environmental Quality (ADEQ).

          Table 1.—Rule Proposed for Rescission

            Local agency
            Rule No.
            Rule title
            Adopted
            Submitted

            PCAQCD
            7-7-3.4
            Organic Solvents
            10/12/95
            11/27/95

        PCAQCD concluded that Rule 7-3-3.4 was not necessary for purposes of attaining and maintaining the ozone National Ambient Air Quality Standards (NAAQS) and the ADEQ forwarded to us the PCAQCD's request to rescind the rule. On February 2, 1996, this rule submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
        B. Are There Other Versions of This Rule?
        We approved a version of Rule 7-3-3.4 into the SIP on April 12, 1982. The PCAQCD rescinded the SIP-approved version on October 12, 1995 and ADEQ submitted the rescission request to us on November 27, 1995.
        C. What Is the Purpose of the Submitted Rule Revision?
        The submitted rule revision removes a previously approved rule from the SIP. The TSD has more information about why this rule was originally adopted by the PCAQCD and why it is now being removed from the SIP.
        II. EPA's Evaluation and Action
        A. How Is EPA Evaluating the Rule Rescission?
        Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The PCAQCD regulates an ozone attainment area (see 40 CFR part 81), so RACT is not required.

        Guidance and policy documents that we used to define specific enforceability and RACT requirements include “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Document,” (Blue Book) notice of availability published in the Federal Register on May 25, 1988.
        B. Does the Rule Rescission Meet the Evaluation Criteria?
        We believe this rule rescission is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.
        C. Public Comment and Reproposal
        On July 14, 2000 (65 FR 43727), EPA proposed to disapprove the rescission of Rule 7-3-3.4 because this revision was submitted with several other replacement rules which weakened the SIP by establishing less stringent emissions limits and by narrowing the scope of regulated sources. During the original 30-day comment period provided in 65 FR 43727 and the subsequent 30-day reopening of the comment period provided in 65 FR 53962, EPA received extensive comments from the PCAQCD and local area businesses.
        PCAQCD commented that the rescission of Rule 7-3-3.4 should be approved because it is not necessary to ensure continued attainment of the NAAQS and that the replacement provisions determined by EPA to not be enforceable should also be approved into the SIP as voluntary elements. Alternatively, the PCAQCD commented that EPA could rescind the current SIP rule without approving the replacement provisions.
        Pinal County has never been classified as nonattainment for ozone pursuant to section 107 of the Act and Rule 7-3-3.4 is not specifically required by the Act. Supporting documentation submitted during the comment period by the PCAQCD on October 6, 2000 attests that anticipated changes in emissions associated with rescission of Rule 7-3-3.4 will not have a meaningful impact on Pinal County's continued ozone NAAQS attainment status. The TSD has more information on our evaluation.
        EPA concurs that the rescission of Rule 7-3-3.4 will not have an adverse air quality impact or otherwise interfere with section 110, 111, 112, or any applicable provision of the Act. Therefore, EPA is proposing to fully approve the rescission of Rule 7-3-3.4 as described in section 110(k)(3) of the Act. At this time we are not finalizing action on the other associated replacement rules included in our original July 14, 2000 proposal.
        We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will remove this rule from the federally enforceable SIP.
        III. Background Information
        Why Was This Rule Submitted and Why Is It Being Rescinded?
        VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

          Table 2.—Ozone Nonattainment Milestones

            Date
            Event

            Mar. 3, 1978
            EPA promulgated a list of ozone nonattainment areas under the Clean Air Act as amended in 1977. 43 FR 8964; 40 CFR 81.305.

            Nov. 15, 1990
            Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q.

        IV. Administrative Requirements

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

        In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compound.

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

          Dated: June 28, 2001.
          Jane Diamond,
          Acting Regional Administrator, Region IX.

      [FR Doc. 01-17833 Filed 7-16-01; 8:45 am]
      BILLING CODE 6560-50-P