        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 216 and 300
        [Docket No. 040920271-4271-01; I.D. 102004A]
        RIN 0648-AS05
        Taking of Marine Mammals Incidental to Commercial Fishing Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific Ocean (ETP)

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

          ACTION:
           Proposed rule; collection-of-information requirements; request for comments.

          SUMMARY:
           NMFS proposes regulations to implement resolutions adopted by the Inter-American Tropical Tuna Commission (IATTC) and by the Parties to the Agreement on the International Dolphin Conservation Program (IDCP).  These regulations would prohibit activities that undermine the effective implementation and enforcement of the Marine Mammal Protection Act (MMPA), Dolphin Protection Consumer Information Act (DPCIA), and International Dolphin Conservation Program Act (IDCPA).  This proposed rule would enlarge the class of vessels required to pay observer fees.  The procedure to categorize tuna purse seine vessels as “active” in the Eastern Tropical Pacific Ocean (ETP) and the deadline for submitting vessel permit applications would change.  Procedures are proposed for managing the capacity of the U.S. tuna purse seine fleet operating in the ETP through maintenance of a Vessel Register, the definitive list of vessels authorized to purse seine for tuna in the ETP.  This proposed rule is intended to contribute to the long-term conservation of dolphin and tuna stocks and to ensure that the domestic tuna tracking and verification program remains consistent with international standards.

          DATES:
          Comments on the proposed regulations must be received by November 29, 2004.

          ADDRESSES:

          Send comments on the rule and the Initial Regulatory Flexibility Analysis to Jeremy Rusin, NMFS, Southwest Region, Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.  This address may also be used to submit observer fee payments, permit applications and other documentation to the Administrator, Southwest Region, with the exception of Fisheries Certificates of Origin (see below).  Comments may be sent via facsimile (fax) to (562) 980-4027 or via E-mail.  Include in the subject line of the E-mail the following document identifier:   RIN 0648-AS05.  The mailbox address for providing E-mail comments is 0648-AS05@noaa.gov.  Comments may also be submitted electronically through the Federal e-Rulemaking portal: http//www.regulations.gov.
          Fisheries Certificates of Origin submitted via mail should be sent to Tuna Tracking and Verification Program, Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469.

          FOR FURTHER INFORMATION CONTACT:
           Jeremy Rusin, NMFS, Southwest Region, Protected Resources Division, at (562) 980-4020.

        SUPPLEMENTARY INFORMATION:
        Background
        The United States is a member of the IATTC, which was established in 1949 under the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention).  The IATTC provides an international forum to ensure the effective international conservation and management of highly migratory species of fish in the Convention Area.  The Convention Area is defined to include waters of the ETP bounded by the coast of the Americas, the 40° N. and 40° S. parallels, and the 150° W. meridian.  The IATTC has maintained a scientific research and fishery monitoring program for many years and annually assesses the fisheries and the status of tuna stocks to determine appropriate harvest limits or other measures to prevent overexploitation of the stocks and promote viable fisheries.  More recently, the IATTC has moved into other fishery management issues, such as managing the cumulative capacity of vessels fishing in the Convention Area, bycatch of non-target and protected species, and imposing time-area closures to conserve tuna stocks.

        In support of fleet capacity control, the United States agreed to an IATTC resolution that limited total ETP purse seine fleet capacity.  Currently, the United States is committed to limiting the capacity of its domestic tuna purse seine fleet operating in the ETP to 8,969 metric tons (mt) carrying capacity.  The U.S. limit was originally based on the cumulative capacity of U.S. vessels actively fishing in the ETP in the years leading up to 1999.  In addition, U.S. purse seine vessels based in the western Pacific Ocean (WPO) were allowed to make 32 trips into the ETP without counting against the 8,969 mt limit.  Recent resolutions adopted under the IATTC have addressed limits on fleet capacity.  The United States and other Parties to the IATTC Convention and Agreement on the IDCP are responsible for domestically implementing resolutions adopted each year.  Under the U.S. Tuna Conventions Act (16 U.S.C. 951 et seq.), the Secretary of Commerce is authorized to promulgate regulations implementing the recommendations of the IATTC.  Implementation of recent capacity resolutions is one objective of this proposed rule.
         The IDCPA was signed into law August 15, 1997, and became effective March 3, 1999.  The IDCPA amends the MMPA, DPCIA (16 U.S.C. 1385), and Tuna Conventions Act.  The IDCPA, together with previous declarations, became the blueprint for the Agreement on the IDCP.  In May 1998, eight nations, including the United States, signed a binding, international agreement to implement the IDCP.  The Agreement on the IDCP became effective on February 15, 1999, after four nations (United States, Panama, Ecuador, and Mexico) deposited their instruments of ratification, acceptance, or adherence with the depository for the Agreement.  The IDCPA (16 U.S.C. 1413) mandates the Secretary of Commerce to issue and revise regulations, as appropriate, to implement the IDCP.
        This proposed rule is intended to revise current regulations to ensure consistency between operation of the U.S. tuna purse seine fleet in the ETP and resolutions adopted by the IATTC and by the Parties to the Agreement on the IDCP.  This proposed rule also introduces procedural modifications needed in the domestic tuna tracking and verification program, especially regarding the maintenance and submission of tracking and verification records.  In addition, these regulations would prohibit labeling tuna with a mark that refers to dolphins or other marine mammals if the label does not comply with the requirements of 16 U.S.C. 1385(d) and prohibit interference with enforcement and inspection activities that undermine the effectiveness of the MMPA.
        Definitions
        The definition for “Fisheries Certificate of Origin” would be revised in § 216.3 to include the acronym “FCO”, as well as NOAA Form 370.  In § 216.3, a definition for “South Pacific Tuna Treaty” would be added to specify that the term refers to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (South Pacific Tuna Treaty).
        In § 300.21, a definition would be added for “Vessel Register” in order to formally name the list of vessels authorized to purse seine for tuna in the ETP, which is comprised of both U.S. and international vessels.  A second definition would be added in Section 300.21 for “South Pacific Tuna Treaty” to specify that the term refers to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America.
        Interference with Investigations and Authorized Activities
        These regulations propose to add a new § 216.17 to prohibit activities that undermine the effective implementation and enforcement of the MMPA, DPCIA, and IDCPA.  Currently, individuals who refuse to permit boardings by enforcement agents, interfere with inspections or stranding response, or intentionally submit false information may not be subject to prosecution under the MMPA, as such activities are not specifically prohibited.  Such activities constrain law enforcement actions needed to ensure compliance with the statute.  Lastly, this action would ensure that there are regulations protecting law enforcement officials while conducting investigations in the field.
        Vessel Register
        The IATTC established a international Vessel Register on June 28, 2002.  In § 300.22(b), NMFS proposes to maintain a domestic Vessel Register in accordance with recommendations of the IATTC.  In addition, procedures would be established for vessels to be categorized as active or inactive on the Vessel Register for a given calendar year.  Vessels would be eligible for inclusion on the Vessel Register if they were determined to have a history of fishing in the ETP prior to the establishment of the IATTC Vessel Register on June 28, 2002.  Vessels that were not originally eligible for inclusion on the Vessel Register could be added only to replace another vessel of equal or greater capacity that has been removed from the Vessel Register.

        As of September 2004, the following U.S. purse seine vessels, with carrying capacities in parentheses, are eligible for inclusion on the Vessel Register maintained by the IATTC: Andrea C (1,089 mt); Anna Maria II (82 mt); Annie D (100 mt); Anthony G (35 mt); Antoinette W (25 mt); Atlantis (1,089 mt); Barbara H. (91 mt); Bold Adventuress (1,361 mt); Calogera A (62 mt); Cape Elizabeth (1,542 mt); Cape Finisterre (1,361 mt); Carol Linda (1,587 mt); Cassie (62 mt); Connie Jean (517 mt); Daniela (1,217 mt); Diana (1,089 mt); Donna B (145 mt); Eileen (42 mt); Ferrigno Boy (70 mt); Fiore D'Mare (85 mt); G Nazzareno (75 mt); Gallant (91 mt); Gloria Marie (23 mt); Jeanette (1,542 mt); Jeannine (1,089 mt); Jenny Lynne (59 mt); Kathy Jeanne (73 mt); King Philip (91 mt); Koorale (998 mt); Lady Elizabeth (288 mt); Lady Renee (36 mt); Linda C. (11 mt); Margaret F (54 mt); Maria (89 mt); Maria T (45 mt); Mary Louise (54 mt); Mauritania (340 mt); Midnight Hour (45 mt); Nancy B II (68 mt); New Horizon (33 mt); Odette Therese II (1,089 mt); Pacific Princess (1,089 mt); Pioneer (64 mt); Proud Heritage (998 mt); Retriever (45 mt); Romani Sons (91 mt); Saint Joseph (79 mt); San Antonio (86 mt); San Pedro Pride (104 mt); Santa Maria (77 mt); Sea Encounter (1,814 mt); Sea Queen (91 mt); Sheelagh B (82 mt); St George II (91 mt); Tradition (1,089 mt); Trionfo (68 mt); and Western Pacific (1,678 mt).
        In order for vessels in excess of 400 short tons (st), (362.8 mt) carrying capacity to purse seine for tuna in the ETP, they would be required to be categorized as active on the Vessel Register, have obtained a vessel permit, and have paid the permit application fee and the observer placement fee associated with the active status.
        Owners who request to have purse seine vessels in excess of 400 st (362.8 mt) listed as inactive on the Vessel Register would be required to pay the observer placement fee associated with inactive status.  However, only purse seine vessels in excess of 400 st (362.8 mt) listed as active on the Vessel Register would be allowed to fish in the ETP; large purse seine vessels listed as inactive would be prohibited from fishing.
        Purse seine vessels licensed under the South Pacific Tuna Treaty would be allowed to make a single trip in the ETP per year, not to exceed 90 days in duration.  They would not be required to be listed on the Vessel Register; however, they would be required to obtain a vessel permit, pay the permit application fee and the observer placement fee associated with active status, and carry an approved IDCP or ETP-trained Forum Fisheries Agency observer prior to entering the ETP to fish.  No more than 32 such trips would be allowed per year.
        Purse seine vessels of less than 400 st (362.8 mt) carrying capacity that do not target tuna on a full-time basis (in other words, 50 percent or less of annual landings by the vessel are tuna caught in the ETP) would not be required to be categorized as active, or even be listed on the Vessel Register, in order to purse seine for tuna in the ETP when tuna are seasonally available.
        Purse seine vessels of less than 400 st (362.8 mt) carrying capacity that target tuna on a full-time basis (in other words, more than 50 percent of annual landings by the vessel are tuna caught in the ETP) would be required to be categorized as active on the Vessel Register.  In order to be categorized as active on the Vessel Register, these small purse seine vessels would be required to submit payment of observer placement fees associated with active status to the Administrator, Southwest Region.  Owners may request to have purse seine vessels of less than 400 st (362.8 mt) carrying capacity listed as inactive on the Vessel Register by submitting payment of the observer placement fee associated with inactive status.
        New § 300.22(b)(4)(i) would provide that when the owner of a vessel in excess of 400 st (362.8 mt) carrying capacity submits a vessel permit application, permit application fee, and observer placement fee, the Administrator, Southwest Region, would interpret the submissions as the owner's request for the subject vessel to be categorized as active under the Vessel Register in a given calendar year.  The owner of a vessel of 400 st (362.8 mt) carrying capacity or less would be required to submit only payment of the observer placement fee associated with active status in order to request the vessel be listed on the Vessel Register as active.
        For 2005 only, requests to be categorized as active that are received by the Administrator, Southwest Region, would be prioritized on a first-come, first-served basis.  Requests to be active for 2006 and subsequent years that are received by the Administrator, Southwest Region, between August 1 and September 15 of the previous year, for vessels requesting DMLs, or between August 1 and November 30 of the previous year, for vessels not requesting a DMLs, would be prioritized according to the following hierarchy:   (1) requests for vessels that were categorized as active in the previous year except for vessels that were determined by the Administrator, Southwest Region, to have made frivolous requests for the previous year; (2) requests for vessels that were categorized as inactive in the previous year; (3) requests for vessels not described in (1) or (2) will be prioritized on a first-come, first-served basis; and (4) requests for vessels that were determined to have made a frivolous request for active status for the previous year.  Vessels in excess of 400 st (362.8 mt) carrying capacity would not be categorized as active on the Vessel Register unless the captain of the vessel possessed a valid operator permit.
        Under new § 300.22(b)(5), vessels could be removed from the Vessel Register by the Administrator, Southwest Region:   (1) if they have sunk, (2) at the written request of the owner or managing owner, (3) if they have not paid the required observer placement fee, (4) if the vessel owner or managing owner does not submit, within the allotted time, a vessel permit application and associated processing fee, (5) if the United States Coast Guard notifies NMFS that the U.S. documentation for the vessel has been deleted, or (6) for serious violations, for failure to pay a penalty, or for default on a penalty payment agreement.
        In new § 300.22(b)(6), vessels removed from the Vessel Register for a given year or years could be added back to the Vessel Register and categorized as inactive at any time, provided they pay the vessel assessment associated with inactive status.   Vessels removed from active status on the Vessel Register for one of the reasons described in the previous paragraph may be replaced with another vessel by the Administrator, Southwest Region, at any point during the year.  Owners or managing owners of vessels eligible for inclusion on the Vessel Register would be notified by the Administrator, Southwest Region, when an opportunity to replace a removed vessel arises.
        Vessels categorized as inactive at the time that a vessel is removed from active status, and active capacity becomes available, would be given first priority to become active for the remainder of the year.  Second priority would be given to vessels not included on, but eligible for inclusion, on the Vessel Register.  In order to replace a vessel removed from active status on the Vessel Register, the owner of a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity would be required to submit to the Administrator, Southwest Region, a vessel permit application, as well as payment of the permit application processing fee and observer placement fee consistent with active status and verification that the captain of the vessel possessed a valid operator permit.

        In order to replace a vessel removed from active status on the Vessel Register, the owner of a purse seine vessel of 400 st (362.8 mt) carrying capacity or less would be required to submit to the Administrator, Southwest Region, only payment of the observer placement fee consistent with active status.
        The regulations would require that the owner of a purse seine vessel listed as inactive on the Vessel Register, who requests to have the vessel's status changed to active, pay an observer placement fee equal to the difference between the fee for active status and the fee for inactive status that was already paid.  The observer placement fee for an owner of a replacement vessel not already listed as inactive on the Vessel Register would be the full observer placement fee associated with active status.
        Vessel Permit Application and Payment of Observer Placement Fee
        Section 216.24(b)(4) would require vessel permit applications to be faxed and establish deadlines for submission of vessel permit applications and application processing fees.  No vessel permit application or application processing fee may be submitted prior to August 1 of the year prior to year for which permit would be valid.  Vessel owners or managing owners requesting a dolphin mortality limit (DML) and that a vessel be categorized as active on the Vessel Register for the following year, would be required to submit the vessel permit application, observer placement fee, and application processing fee no later than September 15 of the year prior to year for which the DML is requested.
        Vessel owners or managing owners not requesting a DML for a vessel, but requesting a vessel greater than 400 st (362.8 mt) be categorized as active on the Vessel Register for the following year, would be required to submit the vessel permit application, observer placement fee, and application processing fee no later than November 30 of the year prior to the year for which inclusion on the Vessel Register is requested.
        Owners or managing owners of vessels not on the Vessel Register and licensed under the South Pacific Tuna Treaty would be required to submit vessel permit applications, observer placement fees, and application processing fees before the vessel is assigned an observer and enters the ETP to fish, allowing 15 days for NMFS to process the application.
        Owners or managing owners of vessels equal to or less than 400 st (362.8 mt) would not be required to submit a vessel permit application or application processing fee; vessel permits are not required for vessels of this size regardless of whether or not they are listed on the Vessel Register.
        Any owner that requests to have a purse seine vessel of less than 400 st (362.8 mt) carrying capacity listed as active on the Vessel Register would be required to submit payment of the observer placement fee associated with active status no later than November 30 of the year prior to the year for which inclusion on the Vessel Register is requested.  Owners of small purse seine vessels for which at least 50 percent of annual catch is comprised of tuna caught in the ETP would be required to request these vessels be listed as active on the Vessel Register by submitting payment of observer placement fees associated with active status no later than November 30 of the year prior to the year for which inclusion on the Vessel Register is requested. Owners that request to have these small vessels listed as inactive on the Vessel Register would be required to submit payment of observer placement fees associated with inactive status no later than November 30 of the year prior to the year for which inclusion on the Vessel Register is requested.
        Owners requesting to replace a vessel removed from active status on the Vessel Register would be required to submit to the Administrator, Southwest Region, a vessel permit application, payment of the permit application processing fee, and payment of the observer placement fee consistent with active status before the vessel would be listed as active.  In addition, these owners would be required to verify that the captain of the vessel possessed a valid operator permit.
        Importation, Purchase, Shipment, Sale, and Transport

        In § 216.24, a new paragraph (f)(3)(ii) would be added requiring that Fisheries Certificates of Origin (FCOs) and associated certifications be submitted by the importer of record within 30 days of the shipment's entry into the commerce of the United States.  The proposed regulations would allow certifications to be submitted electronically to the Tuna Tracking and Verification Program using a secure file transfer protocol (FTP).  Importers of record interested in submitting FCOs and associated certifications via FTP may contact a representative of the Tuna Tracking and Verification Program.  Certifications submitted by mail either on compact disc or as hard copies to the Tuna Tracking and Verification Program (see ADDRESSES) would also be acceptable.  All importers of record submitting electronic certifications, whether via FTP or on compact disc, would be required to make submissions in either Adobe Portable Document Format (PDF) or as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or Corel WordPerfect file.  Paragraphs previously designated (f)(2)(ii) and (iii) would be redesignated as (f((2)(iii) and (iv), respectively.
        In § 216.24(f)(4) two modifications would be made.  In paragraph (f)(4)(xi), the name of the vessel would be required on the FCO regardless of the gear type used.  In paragraph (f) (4)(xiv), NMFS would require importers, exporters, or processors who take custody of tuna shipments to sign and date FCOs.  Current regulations limit this requirement to tuna shipments harvested by purse seine vessels in excess of 400 st.  This modification is necessary because processors who import tuna must be able to verify dolphin-safe status through use of the FCO for all tuna imports regardless of gear or vessel size.
        Market Prohibitions

        NMFS would add a market prohibition to § 216.24(f)(12)(ii) to complement the dolphin-safe labeling requirements under the DPCIA, as codified in regulations at 50 CFR 216.91 et seq. This new prohibition would make commerce in tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals illegal if the label or mark does not comply with the labeling and marking requirements of 16 U.S.C. 1385(d).  The Dolphin Protection Consumer Information Act authorizes the Secretary to regulate entities in the stream of commerce that are responsible for trafficking in tuna product that bears labels suggesting the tuna was harvested in a “dolphin-safe” manner.  As a result and based on NMFS' experience, NMFS has determined that giving NMFS the ability to enforce the labeling standards at the wholesale, distribution, and retail levels will further compliance with the DPCIA.  During the course of recent investigations into illegally imported tuna products, NMFS determined that there is both a ready supply of a certain brand of tuna products from Mexico entering the U.S. market that carries a label/mark that implies the tuna is dolphin-safe and a demand among consumers for this product.  While there is no indication that the labeled product is not dolphin-safe, it appears that the product entered the U.S. market without being accompanied by the required paperwork.  Further, at the time such products were discovered by law enforcement officials, the party possessing the product (usually a retailer) was not the party that placed the dolphin-related label on the product.
        This proposed new prohibition would improve the ability of NMFS Enforcement to pursue enforcement actions against all parties in the stream of commerce that handle or sell labeled tuna product.  Putting such enforcement pressure on all businesses that distribute or sell labeled products is likely to raise their awareness of the dolphin-safe labeling standards.  NMFS anticipates that this will, in turn, reduce the illegal trafficking of such products.
        Changes to Verification Requirements
        Section 216.93(c)(v) would be revised to prohibit distribution of confidential Tuna Tracking Forms (TTFs) by replacing the phrase “shall not” with “may not”.  Current regulations were intended to prohibit distribution of these confidential documents; however, this intention was not apparent in the way current regulations were constructed.
        Section 216.93(e) would be revised in this proposed rule to specify that copies of FCOs and required certifications must be submitted by the importer of record to the Administrator, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States, consistent with the addition of a the proposed new paragraph (f) (3) (ii) in § 216.24(f)(3).
        NMFS would revise § 216.93(f) to require maintenance of records on all tuna imported into the United States, not just tuna harvested in the ETP that is imported.  This change would be made because of the need to track all the tuna coming into the United States in order to track and verify tuna harvested in the ETP.
        Under these proposed regulations, certain entities (any exporter, transshipper, importer, processor or wholesaler/distributor of tuna or tuna products) would be required to submit FCOs within 30 days of every shipment, as opposed to within 30 days of a request by the Southwest Regional Administrator.  These revisions would be made in § 216.93(f)(2).
        NMFS would add a requirement that wholesalers and distributors maintain records related to the shipment of tuna, including the FCO, required certifications, invoices, and other import documents under the authority of paragraph (f) of the DPCIA (16 U.S.C. 1385(f)).  The revised § 216.93(f) would require any “wholesaler/distributor” to comply with the record maintenance, submission, and audit/spot-check obligations of the Tuna Tracking and Verification Program.  In addition to maintaining records, wholesalers/distributors would be required to submit or provide access to all pertinent records and facilities related to caught, landed, stored and processed tuna.
        For purposes of this regulation, wholesalers/distributors would be identified as entities that sell from offices or warehouses, advertise to businesses rather than to the general public, and generally have no walk-in traffic or public displays.  This addition is proposed because current regulations require importers to adhere to the tracking requirements, but do not extend the requirements to parties any farther in the stream of commerce.  Investigations into the alleged illegal importation of tuna products have been thwarted because NMFS discovered the products only after they had been delivered to the retailers.  For example, wholesalers/distributors did not maintain any paperwork regarding the delivery or purchase of the tuna that would have allowed NMFS to investigate who had been involved in the illegal importation.  Without extending the tracking requirements to wholesalers/distributors, this complication with investigations would likely continue, as there is the potential that illegal importations of tuna are ongoing.  NMFS does not propose extending recordkeeping requirements to retailers, but in order to aid enforcement of these regulations, NMFS would apply the verification requirements of this section to wholesalers/distributors.
        Public Comments Solicited

        NMFS is soliciting public comments on this proposed rule.  Written comments may be submitted to Jeremy Rusin (see ADDRESSES and DATES).
        Classification
        Executive Order 12866

        This proposed rule has been determined to be not “significant” under Executive Order 12866.  NMFS prepared a Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), included as Appendix A to the Environmental Assessment (EA) prepared on the proposed regulations.  The EA, including the RIR/IRFA, is available at the following website: http://swr.nmfs.noaa.gov.
        Regulatory Flexibility Act

        Pursuant to procedures established to implement the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), NMFS prepared an RIR/IRFA, included as Appendix A to the EA prepared on the proposed regulations.  The IRFA indicates that the proposed regulations would have a minimal impact on the U.S. purse seine fishing fleets and associated businesses.
        NMFS analyzed three alternatives in the IRFA for this proposed rule.  The first alternative that NMFS analyzed was the “no action” alternative and this alternative would not implement recommendations of the IATTC member nations or resolutions adopted by the Parties to the Agreement on the IDCP.  The second alternative NMFS analyzed was the “preferred alternative,” which would:   (1) establish a register of U.S. vessels with a history of fishing in the ETP prior to June 28, 2002, and require that only vessels on that list would be authorized to purse seine for tuna in the ETP; (2) limit the aggregate capacity of U.S. purse seine vessels that may fish full time for tuna in the ETP to 8,969 mt carrying capacity per year; (3) revise the requirements for maintaining and submitting tuna tracking and verification records; (4) ensure that owners of U.S. vessels on the register pay annual assessments; (5) prohibit commerce in tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals if the label or mark does not comply with the labeling and marking requirements of 16 U.S.C. 1385(d); and (6) prohibit interference with enforcement and inspection activities, submission of false information, and other activities that would undermine the effectiveness of the MMPA, IDCPA, and DPCIA.  The third alternative NMFS analyzed was the “variations of the preferred alternative” alternative and this alternative would retain the clearly required elements of the preferred alternative, but it would also include other measures not specifically required by internationally adopted resolutions.  Generally, the objectives of resolutions adopted by the IATTC member nations and the Parties to the Agreement on the IDCP are clear; however, some provisions allow for agency discretion, either in implementing or interpreting the intent of the resolution.  These discretionary areas provided the basis for this third alternative.

        NMFS rejected the “no action” alternative because it would not restrict annual participation by U.S. flag purse seine vessels in the fishery and would not implement needed prohibitions or refine tuna tracking procedures.  Under the “no action” alternative, the United States would not be fulfilling its obligations under the IATTC and Agreement on the IDCP; adopting this alternative would provide a precedent for other nations to ignore future international recommendations.
        NMFS chose the “preferred alternative,” which includes a combination of procedures to restrict domestic fleet capacity, updates to the domestic tuna tracking and verification program, prohibitions against interfering with enforcement activities, and prohibitions against using a label on tuna products that refers to dolphins or other marine mammals when the label does not comply with the requirements of the DPCIA.  The “preferred alternative” is expected to have minimal impacts on the U.S. purse seine fishing fleet and associated businesses.
        NMFS also considered but rejected the third alternative which included taking independent action to address tuna conservation (e.g., quota, area closures, or other variations of the preferred alternative) because these approaches fail to address the potential for fleet capacity growth.  Further, the United States does not have independent sources of information that would provide a sufficiently sound approach to support a departure from recommendations of the IATTC member nations and Parties to the Agreement on the IDCP.
        The IRFA indicates, with only 1-2 exceptions, that tuna landings of small purse seine vessels (i.e., vessels less than 400 st carrying capacity and classified as small business entities) do not comprise a significant percentage of the total landings of small purse seine vessels.  Therefore, these vessels would be exempt from being categorized as active on the Vessel Register or paying associated annual vessel assessments in order to purse seine for tuna when they are seasonally available.  The 1-2 small vessels that have historically targeted tuna on a full-time basis, as well as large tuna purse seine vessels (in excess of 400 st carrying capacity), would be required to be listed as active on the Vessel Register and pay associated annual vessel assessments in order to fish for tuna in future years.
        The annual capacity limit of 8,969 mt that would be imposed on the U.S. tuna purse seine fleet as a result of this action is expected to accommodate the majority of interested vessels based on vessel participation in the fishery in recent years, including the 1-2 small purse seine vessels that target tuna on a full-time basis.  In 2004, owners expressed an interest to have an additional 2 vessels in excess of 400 st carrying capacity categorized as active, which would have totaled approximately 11,500 mt in fleet capacity.  Therefore, implementing the fleet capacity limit through this rule would result in 1 or 2 eligible U.S. purse seine vessels being excluded from participating in the ETP tuna fishery if the current level of interest in the fishery is maintained.
        Updates to the tuna tracking and verification program; prohibitions against commerce in tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals if the label or mark does not comply with the labeling and marking requirements of 16 U.S.C. 1385(d); and prohibitions against activities that undermine the implementation and enforcement of the MMPA, IDCPA and DPCIA are not expected to significantly impact small business entities.  While the proposed changes are expected to result in some new or increased burdens to small businesses, the experience of the Tuna Tracking and Verification Program indicates that the proposed change would ensure NMFS' continued ability to verify the dolphin-safe status of tuna.
        The preferred alternative is not expected to have a significant economic impact on the U.S. tuna purse seine fleet operating in the ETP.  The only small business entities which would potentially be affected by this proposed rule would be 1-2 small purse seine vessels which target tuna in the ETP on a full-time basis.  These actions are not expected to compromise the ability of these small vessels to target tuna or reduce their retained catch or sales revenue.  Similarly, there would be no impacts on processors, nor would total employment be affected by this action.
        While this alternative would implement capacity controls for the fleet, the proposed limit, 8,969 mt, is consistent with the recent level of interest and participation in the fishery by U.S. vessels.  This alternative would also exempt smaller fishing entities that do not target tuna on a full-time basis from paying annual vessel assessments.  Considering their access to fishing grounds in the western Pacific Ocean, vessels in excess of 400 st carrying capacity in the U.S. tuna purse seine fleet are expected to have sufficient flexibility to target tuna where and when they are seasonably available.  Foreign purse seine fleets, as well as domestic and international tuna processors, are not expected to be significantly adversely affected by implementation of this alternative, due to the global nature of tuna supply and pricing.

        NMFS is requesting comments on the IRFA.  The EA, including the RIR/IRFA, is available at the following website: http://swr.nmfs.noaa.gov.  Send comments to Jeremy Rusin, NMFS (see ADDRESSES).
        Paperwork Reduction Act
        This proposed rule contains new collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which appears in § 216.93(f) of this proposed rule.  Wholesalers/distributors are included in the list of entities required to produce records relative to tracking and verification of tuna to the Administrator, Southwest Region.  This added collection-of-information requirement was approved by the Office of Management and Budget (OMB) on February 6, 2003, under control number 0648-0387.  The public reporting burden for this collection is estimated to average 30 minutes for a wholesaler/distributor to produce records.
        Notwithstanding any other provision of the law, no person is required to respond to, nor will any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
        The preceding public reporting burden estimates for collections of information include time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

        Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in writing to Jeremy Rusin, NMFS (See ADDRESSES), or to David Rostker, OMB, by e-mail at David-Rostker@omb.eop.gov or by fax to 202-395-7285.
        Endangered Species Act

        NMFS prepared a Biological Opinion for the interim final rule to implement the IDCPA in December 1999, concluding that fishing activities conducted under the interim final rule are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat.  NMFS is unaware of any new information that would indicate this proposed action may affect listed species in a manner or to an extent not previously considered, nor do the proposed regulations modify the fishery in a manner that causes an effect to listed species not previously considered in the Biological Opinion.  Therefore, NMFS has determined that the conclusions and incidental take statement of the Biological Opinion remain valid and reinitiation of consultation is not required.  NMFS continues to monitor annual sea turtle takes and mortalities in the U.S. tuna purse seine fishery operating in the ETP to ensure that levels are within those analyzed in the Biological Opinion and authorized in the amended Incidental Take Statement.
        National Environmental Policy Act

        NMFS prepared a draft Environmental Assessment (EA) on these proposed regulations.  A copy of the draft EA is available at: http://swr.nmfs.noaa.gov.

          Dated:   October 20, 2004.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

          List of Subjects
          50 CFR Part 216
          Fish, Marine mammals, Reporting and recordkeeping requirements.
          50 CFR Part 300
          International fisheries regulations; Pacific tuna fisheries.

        For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 216 and 300 as follows:

          PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS

        1.  The authority citation for part 216 continues to read as follows:

          Authority:
          16 U.S.C. 1361 et seq., unless otherwise noted.

        2.  In § 216.3 the definition for “Fisheries Certificate of Origin” is revised and a definition for “South Pacific Tuna Treaty” is added to read as follows:

          § 216.3
          Definitions.

            Fisheries Certificate of Origin or FCO, means NOAA Form 370, as described in § 216.24(f)(4).

            South Pacific Tuna Treaty means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (50 CFR part 300, subpart D).

        3.  A new § 216.17 is added to subpart B to read as follows:

          § 216.17
          General prohibitions.
          It is unlawful for any person to:
          (a) Assault, resist, oppose, impede, intimidate, threaten, or interfere with any authorized officer in the conduct of any search, inspection, investigation or seizure in connection with enforcement of the MMPA, DPCIA, or IDCPA.
          (b) Interfere with, delay, or prevent by any means the apprehension of another person, knowing that such person has committed any act prohibited by the MMPA.
          (c) Resist a lawful arrest for any act prohibited under the MMPA.
          (d) Make any false statement, oral or written, to an authorized officer concerning any act under the jurisdiction of the MMPA, DPCIA, IDCPA, or attempt to do any of the above.
          (e) Interfere with, obstruct, delay, or prevent by any means an investigation, search, seizure, or disposition of seized property in connection with enforcement of the MMPA, DPCIA, or IDCPA.

        4.  Section 216.24 is amended by revising paragraphs (b)(4), (b)(6)(i), (b)(6)(iii), (f)(3), (f)(3)(ii)-(f)(3)(iv), (f)(4)(xi), (f)(4)(xiv) and (f)(12) to read as follows:

          § 216.24
          Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean.
          (b) * * *
          (4) Application for vessel permit. The owner or managing owner of a purse seine vessel may apply for a permit from the Administrator, Southwest Region, allowing at least 15 days for processing.  All vessel permit applications must be faxed to (562) 980-4027.  An owner or managing owner requesting to have a vessel in excess of 400 st (362.8 mt) carrying capacity for which a DML was requested categorized as active on the Vessel Register under § 300.22(b)(4)(i) of this title must submit to the Administrator, Southwest Region, the vessel permit application, payment of the observer placement fee under paragraph (b)(6)(iii) of this section and payment of the vessel permit application processing fee no later than September 15 of the year prior to the year for which the DML was requested.  The owner or managing owner of a vessel in excess of 400 st (362.8 mt) carrying capacity not requesting a DML must submit the vessel permit application, payment of the observer placement fee, and payment of the vessel permit application processing fee no later than November 30 of the year prior to the year for which the vessel permit was requested.  An application must contain:
          (6) * * *
          (i) Vessel permit application fees. Payment of the permit application fee is required before NMFS will issue a permit.  The Assistant Administrator may change the amount of this fee required at any time if a different fee is determined in accordance with the NOAA Finance Handbook and specified by the Administrator, Southwest Region, on the application form.
          (iii) Observer placement fee. (A) The owner or managing owner of a vessel for which a DML has been requested must submit the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than September 15 of the year prior to the calendar year for which the DML was requested.  Payment of the observer placement fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title.
          (B) The owner or managing owner of a vessel for which a DML has not been requested, but that is listed on the Vessel Register, as defined in § 300.21 of this title, must submit payment of the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than November 30 of the year prior to the calendar year in which the vessel will be listed on the Vessel Register.  Payment of the observer placement fee must be consistent with the vessel=s status, either active or inactive, on the Vessel Register in § 300.22(b)(4) of this title.
          (C) The owner or managing owner of a purse seine vessel that is licensed under the South Pacific Tuna Treaty must submit the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, prior to obtaining an observer and entering the ETP to fish.  Consistent with § 300.22(b)(1)(i) of this title, this class of purse seine vessels is not required to be listed on the Vessel Register under § 300.22(b)(4) of this title in order to purse seine for tuna in the ETP during a single fishing trip per calendar year of 90 days or less.  Payment of the observer placement fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title.

          (D) The owner or managing owner of a purse seine vessel listed as inactive on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the observer placement fee associated with active status less the observer placement fee associated with inactive status that was already paid before NMFS will request the IATTC Secretariat change the status of the vessel from inactive to active.
          (E) The owner or managing owner of a purse seine vessel not listed on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the observer placement fee associated with active status before NMFS will request the IATTC Secretariat change the status of the vessel to active.
          (F) Payments received after the dates specified in paragraphs (b) (6) (iii)(A) or (B) of this section will be subject to a 10 percent surcharge.  The Administrator, Southwest Region, will forward all observer placement fees described in this section to the IATTC or to the applicable organization approved by the Administrator, Southwest Region.
          (f) * * *
          (3) Disposition of Fisheries Certificates of Origin. The FCO described in paragraph (f)(4) of this section may be obtained from the Administrator, Southwest Region, or downloaded from the Internet at http://swr.nmfs.noaa.gov/noaa370.htm.
          (i) * * *
          (ii) FCOs and associated certifications, if any, that accompany imported shipments of tuna must be submitted by the importer of record to the Tuna Tracking and Verification Program, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States.  Copies of the documents may be submitted electronically using a secure file transfer protocol (FTP) site.  Importers of record interested in submitting FCOs and associated certifications via FTP may contact a representative of the Tuna Tracking and Verification Program at the following email address:   SWRTuna.Track@noaa.gov.  The Tuna Tracking and Verification Program will facilitate secure transfer and protection of certifications by assigning a separate electronic folder for each importer.  Access to the electronic folder will require a user identification and password.  The Tuna Tracking and Verification Program will assign each importer a unique user identification and password.  Safeguarding the confidentiality of the user identification and password is the responsibility of the importer to whom they are assigned.  Copies of the documents may also be submitted via mail either on compact disc or as hard copies.  All electronic submissions, whether via FTP or on compact disc, must be in either Adobe Portable Document Format (PDF) or as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or Corel WordPerfect file.
          (iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in ownership and submitted to the Administrator, Southwest Region, by the last endorser when all required endorsements are completed.
          (iv) Importers and exporters are required to retain their records, including FCOs, import or export documents, invoices, and bills of lading for 2 years, and such records must be made available within 30 days of a request by the Secretary or the Administrator, Southwest Region.
          (4) * * *
          (xi) the name of the harvesting vessel;
          (xiv) Each additional importer, exporter, or processor who takes custody of the shipment must sign and date the form to certify that the form and attached documentation accurately describes the shipment of fish that they accompany.
          (12) Market rohibitions. (i) It is unlawful for any person to sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna products unless the tuna products are either:
          (A) Dolphin-safe under subpart H of this part; or
          (B) Harvested in compliance with the IDCP by vessels under the jurisdiction of a nation that is a member of the IATTC or has initiated, and within 6 months thereafter completes, all steps required by an applicant nation to become a member of the IATTC.
          (ii) It is unlawful for any exporter, transshipper, importer, processor, or wholesaler/distributor to possess, sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals unless the label or mark complies with the requirements of 16 U.S.C. 1385(d).

        5.  In § 216.93, the section heading and paragraphs are amended by revising paragraphs (c)(5)(v), (e) and (f) to read as follows:

          § 216.93
          Tracking and verification program.
          (c) * * *
          (5) * * *
          (v) TTFs are confidential documents of the IDCP.  Vessel captains and managing offices may not provide copies of TTFs to any representatives of private organizations or non-member states.
          (e) Tracking imports. All tuna products, except fresh tuna, that are imported into the United States must be accompanied by a properly certified FCO as required by § 216.24(f)(2).  For tuna tracking purposes, copies of FCOs and associated certifications must be submitted by the importer of record to the Administrator, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States as required by  § 216.24(f)(3)(ii).
          (f) Verification requirements—(1) Record maintenance. Any exporter, transshipper, importer, processor, or wholesaler/distributor of any tuna or tuna products must maintain records related to that tuna for at least 2 years.  These records include, but are not limited to:   FCO and required certifications, any report required in paragraphs (a), (b) and (d) of this section, invoices, other import documents, and trip reports.
          (2) Record submission. Within 30 days of receiving a shipment of tuna or tuna products, any exporter, transshipper, importer, processor, wholesaler/distributor of tuna or tuna products must submit to the Administrator, Southwest Region, all corresponding FCOs and required certifications for those tuna or tuna products.
          (3) Audits and spot-checks. Upon request of the Administrator, Southwest Region, any exporter, transshipper, importer, processor, or wholesaler/distributor of tuna or tuna products must provide the Administrator, Southwest Region, timely access to all pertinent records and facilities to allow for audits and spot-checks on caught, landed, stored, and processed tuna.

          PART 300—INTERNATIONAL FISHERIES REGULATIONS

        1.  The authority citation for part 300 continues to read as follows:

          Authority:
          16 U.S.C. 951-961 and 971 et seq., unless otherwise noted.

        2.  In § 300.21 definitions for “South Pacific Tuna Treaty” and “Vessel Register” are added to read as follows:

          § 300.21
          Definitions.

            South Pacific Tuna Treaty means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (50 CFR part 300, Subpart D).

            Vessel Register means the regional register of vessels authorized to purse seine for tuna in the Convention Area, as established by the Inter-American Tropical Tuna Commission on June 28, 2002.

        3.  Section 300.22 is amended by revising paragraph (b) to read as follows:

          § 300.22
          Yellowfin tuna—Recordkeeping and written reports.
          (b) Vessel register. Except as provided under paragraph (b)(1) of this section, vessels must be listed on the Vessel Register and categorized as active under paragraph (b)(4)(i) of this section in order to purse seine for tuna in the Convention Area.
          (1) Exceptions. The following classes of vessels are exempted from being listed on the Vessel Register to purse seine for tuna in the Convention Area:
          (i) Vessels licensed under the South Pacific Tuna Treaty that exercise an option to fish in the Convention Area for a single trip each year, provided that the total number of optional trips does not exceed 32 in a given calendar year.  Each optional trip in the Convention Area may not exceed 90 days in duration.
          (ii) Vessels of less than 400 st (362.8 mt) carrying capacity for which landings of tuna caught in the Convention Area comprise 50 percent or less of the vessel's total landings, by weight, for a given calendar year.
          (2) Requirements for inclusion on the vessel register. The Vessel Register shall include, consistent with IATTC actions, only vessels that fished in the Convention Area prior to the creation of the Vessel Register on June 28, 2002.  New vessels may be added to the Vessel Register at any time to replace those previously removed by the Regional Administrator, provided that the total capacity of the replacement vessel or vessels does not exceed that of the vessel or vessels being replaced.
          (3) Vessel information. The owner of any fishing vessel that uses purse seine, longline, drift gillnet, harpoon, or troll fishing gear to harvest tuna in the Convention Area for sale or a person authorized in writing to serve as agent for the owner must provide such information about the vessel and its characteristics as requested by the Regional Administrator to conform to IATTC actions relative to the Vessel Register.  This information initially includes, but is not limited to, vessel name and registration number; a photograph of the vessel with the registration number showing and legible; vessel length, beam and moulded depth; gross tonnage and hold capacity in cubic meters and tonnage; engine horsepower; date and place where built; and type of fishing method or methods used.
          (4) Vessel Register status. In each calendar year, for a vessel to be categorized as either “active” or “inactive” on the Vessel Register, the vessel owner or managing owner must pay the associated observer placement fee pursuant to § 216.24(b)(6)(iii) of this title, or the vessel will be removed from the Vessel Register by the Regional Administrator for that year.
          (i) Active status. As early as August 1 of each year, vessel owners or managing owners may submit to the Regional Administrator a vessel permit application and payment of the permit application fee and observer placement fee for each vessel in excess of 400 st (362.8 mt) carrying capacity qualified to be listed on the Vessel Register under paragraph (b)(2) of this section to have a vessel categorized as active for the following calendar year.  Vessel permit applications may not be submitted via regular mail; they must be faxed to (562) 980-4027.  Owners or managing owners of vessels of 400 st (362.8 mt) carrying capacity or less must only submit payment of the observer placement fee associated with active status in order to request a small purse seine vessel be categorized as active for the following calendar year.  The Regional Administrator must receive the faxed vessel permit application and payment of the observer placement fee and permit application processing fee no later than September 15 for vessels for which a DML was requested for the following year and no later than November 30 for vessels for which a DML was not requested for the following year.  Submission of the vessel permit application and payment of the observer placement fee and permit application processing fee will be interpreted by the Regional Administrator as a request for a vessel to be categorized as active.  The following restrictions apply to active status:
          (A) The cumulative carrying capacity of all vessels categorized as active on the Vessel Register may not exceed 8,969 mt in a given year;
          (B) A vessel may not be added to active status on the Vessel Register unless the captain of the vessel has obtained a valid operator permit under § 216.24(b)(2) of this title;
          (C) For 2005 only, requests for vessels will be prioritized on a first-come, first-served basis according to the date and time the fax is received in the office of the Regional Administrator;
          (D) Requests for active status for 2006 and subsequent years will be prioritized according to the following hierarchy:
          (1) Requests received for vessels that were categorized as active in the previous year, beginning with the vessel's status in 2005, unless the request for active status was determined to be frivolous by the Regional Administrator under paragraph (b)(4)(ii) of this section;
          (2) Requests received for vessels that were categorized as inactive under paragraph (b)(4)(iii) of this section in the previous year, beginning with the vessel's status in 2005;
          (3) Requests for vessels not described in paragraphs (b)(4)(D)(1) or (2) of this section will be prioritized on a first-come, first-served basis according to the date and time stamp printed by the incoming fax machine upon receipt, provided that the associated observer placement fee is paid by the applicable deadline described in § 216.24(b)(6)(iii) of this title; and
          (4) Requests received from owners or managing owners of vessels that were determined, by the Regional Administrator, to have made a frivolous request for active status, under paragraph (b)(4)(ii) of this section.

          (ii) Frivolous requests for active status.  Beginning with requests made for 2005, a request for active status under paragraph (b)(4)(i) of this section will be considered frivolous, unless as a result of force majeure or other extraordinary circumstances as determined by the Regional Administrator, if, for a vessel categorized as active in a given calendar year, less than 20 percent of the vessel's total landings, by weight, in that same year is comprised of tuna harvested by purse seine in the Convention Area.
          (iii) Inactive status. From August 1 through November 30 of each year, vessel owners or managing owners may request that vessels qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as inactive for the following calendar year by submitting to the Regional Administrator payment of the associated observer placement fees.   Payment of the observer placement fee consistent with inactive status will be interpreted by the Regional Administrator as a request for the vessel to be categorized as inactive.
          (5) Removal from the Vessel Register. A vessel may be removed from the Vessel Register by the Regional Administrator:
          (i) If the vessel has sunk;
          (ii) Upon written request by the vessel's owner or managing owner;
          (iii) If the vessel owner or managing owner does not pay the observer placement fee associated with the vessel's active or inactive status on the Vessel Register for a given calendar year;
          (iv) If the vessel owner or managing owner does not submit, within the allotted time, a vessel permit application and permit processing fee;
          (v) If the United States Coast Guard notifies NMFS that the U.S. documentation for the vessel has been deleted; or
          (vi) For serious violations, for failure to pay a penalty, or for default on a penalty payment agreement.
          (6) Procedures for replacing vessels removed from the Vessel Register. (i) A vessel previously listed on the Vessel Register, but removed for a given year or years, may be added back to the Vessel Register and categorized as inactive at any time during the year, provided the owner of the vessel pays the observer placement fee associated with inactive status.
          (ii) A vessel may be added to the Vessel Register and categorized as active in order to replace a vessel removed from active status under paragraph (b)(5) of this section, provided the total carrying capacity of active vessels does not exceed 8,969 mt and the owner submits a complete request under paragraph (b)(6)(iv) of this section.
          (iii) After a vessel categorized as active is removed from the Vessel Register the Regional Administrator will notify owners or managing owners of vessels categorized as inactive that replacement capacity is available on the active list of the Vessel Register.  In the event that owners of inactive vessels do not request to replace a removed vessel, the Regional Administrator will notify owners of vessels eligible for, but not included on, the Vessel Register that replacement capacity is available on the active list of the Vessel Register.
          (iv) The owner or managing owner of a purse seine vessel of 400 st (362.8 mt) carrying capacity or less may request a vessel be categorized as active to replace a vessel removed from the Vessel Register by submitting payment of the observer placement fee to the Regional Administrator.
          (v) The owner or managing owner of a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity may request a vessel be categorized as active to replace a vessel removed from the Vessel Register by submitting the following items to the Regional Administrator:
          (A) Payment of the observer placement fee;
          (B) A vessel permit application faxed to (562) 980-4027;
          (C) Payment of the permit application processing fee; and
          (D) Verification that the captain of the vessel possesses a valid operator permit.
          (vi) The Regional Administrator will forward requests to replace vessels removed from the Vessel Register within 15 days of receiving each request.

      [FR Doc. 04-24008 Filed 10-28-04; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 63
        [EPA-HQ-OAR-2002-0086, FRL-8231-8]
        RIN 2060-AN80
        National Emission Standards for Hazardous Air Pollutants for Semiconductor Manufacturing

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing amendments to the national emission standards for hazardous air pollutants (NESHAP) for Semiconductor Manufacturing, published on May 22, 2003. We are proposing amendments to the final rule to clarify the emission requirements for process vents by establishing a new maximum achievable control technology (MACT) floor level of control for combined hazardous air pollutants (HAP) process vent streams containing inorganic and organic HAP and adding new source requirements for combined HAP process vents. Requirements for existing combined HAP process vents would be no control, which is the MACT floor. The new source combined HAP process vent limit would be the same level of control as is currently required for new inorganic and organic HAP process vents.

          DATES:
          Comments must be received on or before December 4, 2006.

            Public Hearing. If anyone contacts EPA by November 8, 2006 requesting to speak at a public hearing, EPA will hold a public hearing on November 20, 2006. If you are interested in attending the public hearing, contact Lala Alston at (919) 541-5545 to verify that a hearing will be held.

          ADDRESSES:

            Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2002-0086, by one of the following methods:
          • http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          • E-mail: a-and-r-docket@epa.gov, Attention Docket ID No. EPA-HQ-OAR-2002-0086.
          • Mail: U.S. Postal Service, send comments to: EPA Docket Center (6102T), Attention Docket ID No. EPA7-HQ-OAR-2002-0086, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies.
          • Hand Delivery: In person or by courier, deliver comments to: EPA Docket Center (6102T), Attention Docket ID No. EPA-HQ-OAR-2002-0086, 1301 Constitution Avenue, NW., Room B-108, Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Please include a total of two copies.

            Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2002-0086. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. Send or deliver information identified as CBI to only the following address: Mr. Roberto Morales, OAQPS Document Control Officer, EPA (C404-02), Attention Docket ID No. EPA-HQ-OAR-2002-0086, Research Triangle Park, NC 27711. Clearly mark the part or all of the information that you claim to be CBI. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket. All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available,  e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2002-0086, EPA West Building, Room B-102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742. A reasonable fee may be charged for copying docket materials.

          Note:

          The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm for current information on docket status, locations, and telephone numbers.

          FOR FURTHER INFORMATION CONTACT:

          Mr. John Schaefer, EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Measurement Policy Group (D-243-05), Research Triangle Park, NC 27711; telephone number (919) 541-0296; fax number (919) 541-1039; e-mail address schaefer.john@epa.gov.

        SUPPLEMENTARY INFORMATION:

          Regulated Entities. Entities potentially affected by the direct final amendments to the national emission standards for hazardous air pollutants for semiconductor manufacturing are those semiconductor manufacturing facilities. Regulated categories and entities include:

          Table 1.—Regulated Entities Table

            Category
            NAICS 1

            Examples of regulated entities

            Industry
            334413
            Semiconductor crystal growing facilities, semiconductor wafer fabrication facilities, semiconductor test and assembly facilities.

            1 North American Industry Classification System.

        This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that may potentially be affected by this action. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in 40 CFR 63.7181 of the rule. If you have questions regarding the applicability of the direct final amendments to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. Submitting CBI. Do not submit this information through www.regulations.gov or e-mail. Send or deliver information identified as CBI only to the following address listed in the ADDRESSES section of this document. Clearly mark the part or all the information you claim to be CBI. For CBI information submitted on a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

          Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of today's proposal will also be available through the WWW. Following the Administrator's signature, a copy of this action will be posted on EPA's Technology Transfer Network (TTN) policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg/. The TTN at EPA's Web site provides information and technology exchange in various areas of air pollution control.
        How can I get copies of the proposed amendments and other related information?

        EPA has established the official public docket for the proposed rulemaking under docket ID No. EPA-HQ-OAR-2002-0086. Information on how to access the docket is presented above in the ADDRESSES section. In addition, information may be obtained from the Webpage for the proposed rulemaking at: http://www.epa.gov/ttn/atw/pcem/pcempg.html.

          Outline. The information presented in this preamble is organized as follows:

          I. Background
          II. Summary of the Proposed Amendments
          III. Rationale for the Proposed Amendments
          IV. Impacts of the Proposed Amendments
          V. Statutory and Executive Order Reviews
          A. Executive Order 12866: Regulatory Planning and Review
          B. Paperwork Reduction Act
          C. Regulatory Flexibility Act
          D. Unfunded Mandates Reform Act
          E. Executive Order 13132: Federalism
          F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
          G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
          H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
          I. National Technology Transfer Advancement Act

        I. Background
        On May 22, 2003 (68 FR 27913), we issued the NESHAP for Semiconductor Manufacturing (40 CFR part 63, subpart BBBBB). The NESHAP implement section 112(d) of the Clean Air Act (CAA) by requiring all major sources to meet emission standards for HAP reflecting application of the maximum achievable control technology (MACT). The NESHAP establish emission limitations for emission sources at operations used to manufacture p-type and n-type semiconductors and active solid-state devices from a wafer substrate.
        After promulgation of the NESHAP, it was brought to our attention that while the NESHAP established separate emission standards for organic and inorganic HAP from process vents, some plants combine inorganic and organic vent streams into a single atmospheric process vent. This situation was quite different from the process vents examined during the development phase of the rule, which were segregated into strictly organic or inorganic HAP constituents. Therefore, we believe the promulgated rule failed to adequately account for the existence of combined organic and inorganic HAP process vents, and we are proposing to revise the standards to reflect the actual existing source MACT floor for these process vents.
        II. Summary of the Proposed Amendments
        The proposed revisions would establish separate process vent definitions for organic HAP, inorganic HAP, and combined HAP process vents. We have not changed the MACT floors calculated in the final rule for inorganic or organic HAP. We have simply added new definitions to clarify the applicability of the rule to inorganic, organic, and combined HAP process vents. Therefore, inorganic HAP process vents will retain the control requirements set for process vents containing inorganic HAP in the promulgated rule. This means that existing and new source requirements for these vents would effectively remain the same. Similarly, organic process vents will retain the control requirements set for process vents containing organic HAP in the promulgated rule and control requirements for these vents will remain unchanged.
        However, we have developed a new MACT floor for combined HAP process vents. The MACT floor for these vents was determined to be no reduction in emissions from existing sources, and the final rule is being amended to reflect this. For new and reconstructed combined HAP process vents, however, the requirement for inorganic HAP is the same as the requirement for inorganic HAP process vents and the requirement for organic HAP is the same as the requirement for the organic HAP process vents.
        III. Rationale for the Proposed Amendments

        Almost all semiconductor manufacturing facilities segregate their process vent emissions into streams containing either inorganic or organic pollutants. This has been common practice in the industry since the early 1980s. Given the prevalence of this practice and the fact that very few semiconductor manufacturing plants pre-dating the mid-1980s were still in operation when we issued the final rule, the final rule was only intended to regulate emissions from segregated inorganic or organic HAP process vents.
        However, there is at least one older semiconductor manufacturing plant in operation that reflects the earlier design philosophy of combining inorganic and organic HAP into a single process vent. This plant combines inorganic and organic process emission streams into four combined HAP atmospheric process vents. In addition, this facility adds process heat into these combined organic/inorganic process vents.
        Adding organic HAP streams and process heat into an inorganic HAP emission stream, which is the predominant HAP emission vent type in the industry, increases the difficulty and costs of controlling a semiconductor process vent in two ways. First, wet scrubber technology, which is the typical control technology utilized to control inorganic HAP pollutants by this industry, cannot be used to effectively control organic HAP pollutants at the very low concentrations present in the semiconductor industry. Therefore, a combined HAP vent stream needs a much larger and more expensive scrubber to control a combined HAP process vent than a similar inorganic process vent at a more modern facility. In addition, a wet scrubber is not an effective control option for low volume organic pollutant streams such as those in the semiconductor industry and it would not reduce organic HAP by a significant amount. Combining inorganic and organic HAP streams just increases control costs without providing an additional reduction in pollutant levels.
        Second, by adding process heat with combined HAP process vent streams, a facility must cool the process vent air in order to effectively control the inorganic HAP emissions with a wet scrubber. This is a much more significant task than controlling a process vent where the process heat is already separated out and makes a combined HAP process vent with process heat even more difficult and expensive to control. In fact, the most effective way to control an existing combined HAP process vent would be to reconstruct the vent system to segregate the process heat from the inorganic HAP stream, which is the current practice in all semiconductor manufacturing facilities, constructed over the past 20 years.
        Based on this information, we believe it is necessary to revise the final rule to separately address combined HAP process vents with process heat. The floor level of control for inorganic process vents and organic process vents is not being changed by this action. However, for the limited number of existing combined process vents with process heat, the rule is being revised to reflect the actual floor level of control for those vents. The floor level of control for combined HAP process vents has been determined to be no reduction in emissions. We are aware of four combined process vents with added process heat located at major semiconductor sources. We do not know of any existing combined HAP process vents that do not add process heat. Our research indicates that none of those vents are currently subject to any controls to reduce HAP emissions and no work practices are employed that reduce emissions. Control options above the floor for the four existing combined HAP process vents with added process heat were examined. However, we rejected these options because the cost was estimated to be in excess of $750,000 per ton of HAP emissions reduction, which is not a reasonable beyond the floor control option. Therefore, the rule is being amended with the intention that no emission control is required for existing combined HAP process vents with added process heat.
        For new sources, however, we determined that by utilizing proper design, a combined HAP vent stream could achieve reductions similar to those required for inorganic process vents for inorganic HAP and organic process vents for organic HAP. Therefore, for new and reconstructed combined HAP process vents including those with added process heat, the requirement for inorganic HAP components is the same as the current requirement for inorganic HAP process vents and the requirement for organic HAP is the same as the requirement for organic HAP process vents.
        IV. Impacts of the Proposed Amendments
        The proposed amendments do not affect the level of emissions control required by the existing NESHAP for the nonair, health, environmental, and energy impacts. In the final rule we estimated that no additional control would be required. These amendments do not change the impacts associated with the final rule. The primary purpose of these amendments is to clarify the final rule requirements. Therefore, a re-evaluation of costs associated with the final rule was not necessary.
        V. Statutory and Executive Order Reviews
        A. Executive Order 12866: Regulatory Planning and Review
        This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
        B. Paperwork Reduction Act

        This action does not impose any new information collection burden. The information collection requirements in the final rule have not been changed by these proposed amendments. However, OMB has previously approved the information collection requirements contained in the existing regulations 40 CFR part 63, subpart BBBBB under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0382, EPA ICR number 2042.03. A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672.
        Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection information; and transmit or otherwise disclose the information.
        An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
        C. Regulatory Flexibility Act

        The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
        For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administrations' regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
        After considering the economic impacts of today's amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The proposed amendments would not impose any requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
        D. Unfunded Mandates Reform Act
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
        We have determined that the proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any 1 year. Thus, the proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that today's proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, the proposed rule is not subject to section 203 of the UMRA.
        E. Executive Order 13132: Federalism
        Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”
        The proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the affected Semiconductor facilities are owned or operated by State or local governments. Thus, Executive Order 13132 does not apply to the proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
        F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
        Executive Order 13175 (65 FR 67249, November 9, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The proposed rule does not have tribal implications as specified in EO 13175. It will not have substantial direct effects on tribal governments, 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. No tribal governments own semiconductors and are subject to the proposed standards. Thus, EO 13175 does not apply to the proposed rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
        G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
        Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under EO 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety risk of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
        The proposed rule is not subject to the EO because it is not economically significant as defined in EO 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.
        H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

        The proposed rule is not a “significant energy action” as defined in EO 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under EO 12866.

        I. National Technology Transfer Advancement Act

        Section 112(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, 12(d) (15 U.S.C. 272 note)), directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.
        The proposed revisions to the NESHAP for Semiconductor Manufacturing do not include requirements for technical standards beyond what the NESHAP requires. Therefore, the requirements of the NTTAA do not apply to this action.

          List of Subjects in 40 CFR Part 63
          Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.

          Dated: October 11, 2006.
          Stephen L. Johnson,
          Administrator.

        For the reasons stated in the preamble, title 40, chapter I, part 63, of the Code of the Federal Regulations is proposed to be amended as follows:

          PART 63—[AMENDED]
          1. The authority citation for part 63 continues to read as follows:

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

          2. Section 63.7184 is amended by revising paragraphs (b) through (e) and adding paragraph (f) to read as follows:

            § 63.7184
            What emission limitations, operating limits, and work practice standards must I meet?

            (b) Process vents—organic HAP emissions. For each organic HAP process vent, other than process vents from storage tanks, you must limit organic HAP emissions to the level specified in paragraph (b)(1) or (2) of this section. These limitations can be met by venting emissions from your process vent through a closed vent system to any combination of control devices meeting the requirements of § 63.982(a)(2).
            (1) Reduce the emissions of organic HAP from the process vent stream by 98 percent by weight.
            (2) Reduce or maintain the concentration of emitted organic HAP from the process vent to less than or equal to 20 parts per million by volume (ppmv).
            (c) Process vents—inorganic HAP emissions. For each inorganic HAP process vent, other than process vents from storage tanks, you must limit inorganic HAP emissions to the level specified in paragraph (c)(1) or (2) of this section. These limitations can be met by venting emissions from your process vent through a closed vent system to a halogen scrubber meeting the requirements of §§ 63.983 (closed vent system requirements) and § 63.994 (halogen scrubber requirements); the applicable general monitoring requirements of § 63.996; the applicable performance test requirements; and the monitoring, recordkeeping and reporting requirements referenced therein.
            (1) Reduce the emissions of inorganic HAP from the process vent stream by 95 percent by weight.
            (2) Reduce or maintain the concentration of emitted inorganic HAP from the process vent to less than or equal to 0.42 ppmv.
            (d) Process vents—combined HAP emissions. For each combined HAP process vent at a new or reconstructed source, other than process vents from storage tanks, you must limit inorganic HAP emissions to the level specified in paragraph (d)(1) or (2) of this section. These limitations can be met by venting emissions from your process vent through a closed vent system to a halogen scrubber meeting the requirements of §§ 63.983 (closed vent system requirements) and 63.994 (halogen scrubber requirements); the applicable general monitoring requirements of § 63.996; the applicable performance test requirements; and the monitoring, recordkeeping and reporting requirements referenced therein. You must limit organic HAP emissions to the level specified in paragraph (d)(3) or (4) of this section. These limitations can be met by venting emissions from your process vent through a closed vent system to any combination of control devices meeting the requirements of § 63.982(a)(2).
            (1) Reduce the emissions of inorganic HAP from the process vent stream by 95 percent by weight.
            (2) Reduce or maintain the concentration of emitted inorganic HAP from the process vent to less than or equal to 0.42 ppmv.
            (3) Reduce the emissions of organic HAP from the process vent stream by 98 percent by weight.
            (4) Reduce or maintain the concentration of emitted organic HAP from the process vent to less than or equal to 20 parts ppmv.
            (e) Storage tanks. For each storage tank, 1,500 gallons or larger, you must limit total HAP emissions to the level specified in paragraph (e)(1) or (2) of this section if the emissions from the storage tank vent contains greater than 0.42 ppmv inorganic HAP. These limitations can be met by venting emissions from your storage tank through a closed vent system to a halogen scrubber meeting the requirements of §§ 63.983 (closed vent system requirements) and 63.994 (halogen scrubber requirements); the applicable general monitoring requirements of § 63.996; the applicable performance test requirements; and the monitoring, recordkeeping and reporting requirements referenced therein.
            (1) Reduce the emissions of inorganic HAP from each storage tank by 95 percent by weight.
            (2) Reduce or maintain the concentration of emitted inorganic HAP from the process vent to less than or equal to 0.42 ppmv.
            (f) You must comply with the applicable work practice standards and operating limits contained in § 63.982(a)(1) and (2). The closed vent system inspection requirements of § 63.983(c), as referenced by § 63.982(a)(1) and (2), do not apply.
            3. Section 63.7195 is amended by adding a definition for “Combined HAP process vents”, “Organic HAP process vents” and “Inorganic HAP process vents” in alphabetical order to read as follows:

            § 63.7195
            What definitions apply to this subpart?

              Combined HAP Process Vent means a process vent that emits both inorganic and organic HAP to the atmosphere.

              Inorganic HAP Process Vent means a process vent that emits only inorganic HAP to the atmosphere.

              Organic HAP Process Vent means a process vent that emits only organic HAP to the atmosphere.

      [FR Doc. E6-17224 Filed 10-18-06; 8:45 am]
      BILLING CODE 6560-50-P