        DEPARTMENT OF DEFENSE
        Defense Acquisition Regulations System
        48 CFR Parts 204, 212, and 252
        RIN 0750-AF55
        Defense Federal Acquisition Regulation Supplement; DoD Representations and Certifications in the Online Representations and Certifications Application (DFARS Case 2006-D032)

          AGENCY:
          Defense Acquisition Regulations System, Department of Defense (DoD).

          ACTION:
          Proposed rule with request for comments.

          SUMMARY:
          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to address DoD-unique requirements relating to the Online Representations and Certifications Application (ORCA). ORCA presently includes only representations and certifications required by the Federal Acquisition Regulation, but is being revised to also include those required by the DFARS.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before April 13, 2007, to be considered in the formation of the final rule.

          ADDRESSES:
          You may submit comments, identified by DFARS Case 2006-D032, using any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • E-mail: dfars@osd.mil. Include DFARS Case 2006-D032 in the subject line of the message.
          • Fax: (703) 602-0350.
          • Mail: Defense Acquisition Regulations System, Attn: Ms. Felisha Hitt, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.
          • Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.

          Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Felisha Hitt, (703) 602-0310.

        SUPPLEMENTARY INFORMATION:
        A. Background
        Subpart 4.12 of the Federal Acquisition Regulation (FAR) requires prospective contractors to complete electronic annual representations and certifications in ORCA, in conjunction with required registration in the Central Contractor Registration database. ORCA presently includes only representations and certifications required by the FAR, but is being revised to also include those required by the DFARS. This will eliminate the need for offerors to submit the same information to various DoD offices in response to individual solicitations.
        Section 204.1202(2) of the proposed rule lists the existing DFARS representations and certifications that will be included in ORCA. The DFARS representations and certifications implement DoD-unique statutory requirements and trade agreements, and contain special requirements applicable to the significant number and various types of defense contracts and subcontracts performed outside the United States.
        The proposed rule contains a substitute paragraph (c) for use with the provision at FAR 52.204-8, Annual Representations and Certifications, to permit the inclusion of information relating to both the FAR and the DFARS. An offeror must include information in paragraph (c) only if changes to the offeror's annual representations and certifications apply to a particular solicitation.
        This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
        B. Regulatory Flexibility Act
        DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. The analysis is summarized as follows:

        The objective of the rule is to provide a centralized location for the representation and certification information required by the DFARS, thereby eliminating the need for offerors to submit the same information to various DoD offices in response to individual solicitations. The legal basis for the rule is 41 U.S.C. 421. The rule will apply to all entities registered in the Central Contractor Registration database. FAR 4.1102 requires that prospective contractors be registered in the database before the award of a contract or agreement, with certain exceptions. Administrative personnel that have general knowledge of the contractor's business should be able to enter the required information into the database. The rule is expected to have a positive impact on small business concerns by reducing administrative burdens.

        A copy of the analysis may be obtained from the point of contact specified herein. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2006-D032.
        C. Paperwork Reduction Act
        The information collection requirements of the representations and certifications addressed in this proposed rule that require offerors to provide specific fill-in information have been approved by the Office of Management and Budget under Control Numbers 0704-0229, 0704-0245, and 0704-0259. The proposed rule does not impose information collection requirements beyond those already required by existing DFARS representations and certifications.

          List of Subjects in 48 CFR Parts 204, 212, and 252
          Government procurement.

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

        Therefore, DoD proposes to amend 48 CFR parts 204, 212, and 252 as follows:
        1. The authority citation for 48 CFR parts 204, 212, and 252 continues to read as follows:

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

          PART 204—ADMINISTRATIVE MATTERS
          2. Subpart 204.12 is added to read as follows:

            Subpart 204.12—Annual Representations and Certifications

              204.1202
              Solicitation provision and contract clause.
              When using the provision at FAR 52.204-8, Annual Representations and Certifications—
              (1) Use the provision with 252.204-7XXX, Alternate A, Annual Representations and Certifications; and
              (2) Do not include the following representations and certifications:
              (i) 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus.
              (ii) 252.212-7000, Offeror Representations and Certifications—Commercial Items.
              (iii) 252.216-7003, Economic Price Adjustment—Wage Rates or Material Prices Controlled by a Foreign Government.
              (iv) 252.225-7000, Buy American Act—Balance of Payments Program Certificate.
              (v) 252.225-7020, Trade Agreements Certificate.
              (vi) 252.225-7031, Secondary Arab Boycott of Israel.
              (vii) 252.225-7035, Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate.
              (viii) 252.225-7042, Authorization to Perform.
              (ix) 252.229-7003, Tax Exemptions (Italy).
              (x) 252.229-7005, Tax Exemptions (Spain).
              (xi) 252.239-7011, Special Construction and Equipment Charges.
              (xii) 252.247-7022, Representation of Extent of Transportation by Sea.

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

            212.301
            Solicitation provisions and contract clauses for the acquisition of commercial items.

            (f) The following additional provisions and clauses apply to DoD solicitations and contracts for the acquisition of commercial items. If the offeror has completed the provisions listed in paragraph (f)(i) or (ii) of this section electronically as part of its annual representations and certifications at https://orca.bpn.gov, the contracting officer may consider this information instead of requiring the offeror to complete these provisions for a particular solicitation.

          PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          4. Section 252.204-7XXX is added to read as follows:

            252.204-7XXX
            Alternate A, Annual Representations and Certifications.
            Alternate A, Annual Representations and Certifications (XXX 2007)
            As prescribed in 204.1202, substitute the following paragraph (c) for paragraph (c) of the provision at FAR 52.204-8:

            (c) The offeror has completed the annual representations and certifications electronically via the Online Representations and Certifications Application (ORCA) Web site at https://orca.bpn.gov/. After reviewing the ORCA database information, the offeror verifies by submission of the offer that the representations and certifications currently posted electronically have been entered or updated within the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard applicable to the NAICS code referenced for this solicitation), as of the date of this offer, and are incorporated in this offer by reference (see FAR 4.1201); except for the changes identified below [offeror to insert changes, identifying change by clause number, title, date]. These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer.

                FAR/DFARS Clause #

                Title
                Date
                Change

            Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications posted on ORCA.

      [FR Doc. E7-2205 Filed 2-9-07; 8:45 am]
      BILLING CODE 5001-08-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 271
        [FRL-7649-9]
        Indiana: Final Authorization of State Hazardous Waste Management Program Revision

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          Indiana has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery  Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is proposing to authorize the State's changes through this proposed final action.

          DATES:
          Written comments must be received on or before May 20, 2004.

          ADDRESSES:
          Send written comments to Gary Westefer, Indiana Regulatory  Specialist, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604.  Please refer to Docket Number IN ARA19. We must receive your comments by May 20, 2004. You can view and copy  Indiana's application from 9 am to 4 pm at the following addresses:  Indiana Department of Environmental Management, 100 North Senate, Indianapolis, Indiana, (mailing address P.O. Box 6015, Indianapolis,  Indiana 46206) contact Lynn West (317) 232-3593, or Steve Mojonnier  (317) 233-1655; and EPA Region 5, contact Gary Westefer at the following address.

          FOR FURTHER INFORMATION CONTACT:
          Gary Westefer, Indiana Regulatory  Specialist, U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, Chicago,  Illinois 60604, (312) 886-7450.

        SUPPLEMENTARY INFORMATION:
        A. Why Are Revisions to State Programs Necessary?
        States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
        B. What Decisions Have We Made in This Rule?
        We conclude that Indiana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Indiana Final authorization to operate its hazardous waste program with the changes described in the authorization application. Indiana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Indiana, including issuing permits, until the State is granted authorization to do so.
        C. What Is the Effect of Today's Authorization Decision?
        This decision means that a facility in Indiana subject to RCRA will now have to comply with the authorized State requirements (listed in section F of this action) instead of the equivalent Federal requirements in order to comply with RCRA. Indiana has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
        • Do inspections, and require monitoring, tests, analyses or reports
        • enforce RCRA requirements and suspend or revoke permits
        • take enforcement actions regardless of whether the State has taken its own actions
        This action does not impose additional requirements on the regulated community because the regulations for which Indiana is being authorized by today's action are already effective, and are not changed by today's action.
        D. What Happens If EPA Receives Comments That Oppose This Action?

        If EPA receives comments that oppose this authorization, we will address all public comments in a later Federal Register. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.
        E. What Has Indiana Previously Been Authorized for?
        Indiana initially received Final authorization on January 31, 1986, effective January 31, 1986 (51 FR 3955) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on October 31, 1986, effective December 31, 1986 (51 FR 39752); January 5, 1988, effective January 19, 1988 (53 FR 128); July 13, 1989, effective September 11, 1989 (54 FR 29557); July 23, 1991, effective September 23, 1991 (56 FR 33717); July 24, 1991, effective September 23, 1991 (56 FR 33866); July 29, 1991, effective September 27, 1991 (56 FR 35831); July 30, 1991, effective September 30, 1991 (56 FR 36010); August 20, 1996, effective October 21, 1996 (61 FR 43018); September 1, 1999, effective November 30, 1999 (64 FR 47692), January 4, 2001 effective January 4, 2001 (66 FR 733), and December 6, 2001 effective December 6, 2001 (66 FR 63331).
        F. What Changes Are We Authorizing With Today's Action?
        On March 26, 2003, Indiana submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Indiana's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant Indiana Final authorization for the following program changes:

            Description of Federal Requirement (include checklist #, if relevant)

              Federal Register date and page (and/or RCRA statutory authority)
            Analogous State Authority

            Mineral Processing Secondary Materials Exclusion Checklist 167D
            May 26, 1998, 63 FR 28556
            329 IAC 3.1-6-1; 3.1-6-2(2). Effective May 4, 2001.

            Land Disposal Restrictions Phase IV: Treatment Standards For Wood Preserving Wastes, Treatment Standards for Metal Wastes, Zinc Micronutrient Fertilizers, Carbamate treatment Standards, and K088 Treatment Standards Checklist 179
            May 11, 1999, 64 FR 25408
            329 IAC 3.1-6-1; 3.1-6-2(2); 3.1-7-1; 3.1-12-1; 3.1-12-2(5), (7). Effective May 4, 2001.

            Guidelines Establishing Test Procedures for the Analysis of Oil and Grease and Non-Polar Material Under the Clean Water Act and the Resource Conservation and Recovery Act Checklist 180
            May 14, 1999, 64 FR 26315
            329 IAC 3.1-1-7; Effective May 4, 2001.

            Hazardous Waste Management System; Modification of the Hazardous Waste Program; Hazardous Waste Lamps Checklist 181
            July 6, 1999, 64 FR 36466
            329 IAC 3.1-4-1; 3.1-4-1(b); 3.1-6-1; 3.1-9-1; 3.1-9-2(1); 3.1-10-1; 3.1-10-2(1),(2)(3); 3.1-12-1; 3.1-12-2(4); 3.1-13-1; 3.1-13-2(1),(2)(3); 3.1-13-3 through 3.1-13-17; 3.1-16-1; 3.1-16-2(a)(1); 3.1-16-2(a)(4); 3.1-16-2(a)(5); 3.1-16-2(a)(8); 3.1-16-2(b). Effective May 4, 2001.

            NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors Checklist 182 as amended Checklist 182.1
            September 30, 1999, 64 FR 52827; November 19, 1999 64 FR 63209
            329 IAC 3.1-4-1; 3.1-4-1(b); 3.1-6-1; 3.1-9-1; 3.1-10-1; 3.1-11-1; 3.1-13-1. Effective May 4, 2001.

            Land Disposal Restrictions Phase IV; Final Rule Promulgating Treatment Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood Preserving Wastewaters; Technical Correction Checklist 183
            October 20, 1999, 64 FR 56469
            329 IAC 3.1-6-1; 3.1-6-2(17); 3.1-7-1; 3.1-12-1. Effective May 4, 2001.

            180 Day Accumulation Time Under RCRA for Waste Water Treatment Sludges from the Metal Finishing Industry Checklist 184
            March 8, 2000, 65 FR 12378
            329 IAC 3.1-7-1. Effective May 4, 2001.

            Organobromine Production Wastes; Identification and Listing of Hazardous Waste; Land Disposal Restrictions; Listing of CERCLA Hazardous Substances, Reportable Quantities Checklist 185
            March 17, 2000, 65 FR 14472
            329 IAC 3.1-6-1; 3.1-6-2(17),(18),(19); 3.1-12-1; 3.1-12-2(10). Effective May 4, 2001.

            Organobromine Production Wastes; Petroleum Refining Wastes; Identification and Listing of Hazardous Waste; Land Disposal Restrictions; Final Rule and Correcting Amendments Checklist 187
            June 8, 2000, 65 FR 36365
            329 IAC 3.1-6-1; 3.1-12-1. Effective May 4, 2001.

            NESHAPS: Standards for Hazardous Air Pollutants for Hazardous Waste Combustors; Final Rule, Technical Correction Checklist 188 as amended Checklist 188.1
            July 10, 2000, 65 FR 42292; May 14, 2001, 66 FR 24270
            329 IAC 3.1-6-1; 3.1-9-1;3.1-13-1. Effective July 3, 2002.

            Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Chlorinated Alphatics Production Wastes; Land Disposal Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance Designation and Reportable Quantities Checklist 189
            November 8, 2000, 65 FR 67068
            329 IAC 3.1-6-1; 3.1-6-2(17); 3.1-6-219),(20); 3.1-12-1. Effective July 3, 2002.

            Deferral of Phase IV Standards for PCBs as a Constituent Subject to Treatment in Soil Checklist 190
            December 26, 2000, 65 FR 81373
            329 IAC 3.1-12-1. Effective July 3, 2002.

            Storage, Treatment, Transportation, and Disposal of Mixed Waste Checklist 191
            May 16, 2001, 66 FR 27218
            329 IAC 3.1-11-1. Effective July 3, 2002.

            Hazardous Waste Identification Rule (HWIR) Revisions to the Mixture and Derived-From Rules Checklist 192A
            May 16, 2001, 66 FR 27266
            329 IAC 3.1-6-1. Effective July 3, 2002.

            Land Disposal Restrictions Correction Checklist 192B
            May 16, 2001, 66 FR 27266
            329 IAC 3.1-12-1. Effective July 3, 2002.

            Change of Official EPA Mailing Address; Additional Technical Amendments and Corrections Checklist 193
            June 28, 2001, 66 FR 34374
            329 IAC 3.1-1-7. Effective July 3, 2002.

        G. Where Are the Revised State Rules Different From the Federal Rules?
        Indiana has excluded the non-delegable Federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3 in their Incorporation by Reference at 3.1-12-2 and 3.1-13-2(4). EPA will continue to implement those requirements.
        H. Who Handles Permits After the Authorization Takes Effect?
        Indiana will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Indiana is not yet authorized.

        I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in Indiana?
        Indiana is not authorized to carry out its hazardous waste program in “Indian Country”, as defined in 18 U.S.C. 1151. Indian Country includes:
        1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Indiana;
        2. Any land held in trust by the U.S. for an Indian tribe; and
        3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country. Therefore, this action has no effect on Indian Country. EPA retains the authority to implement and administer the RCRA program in Indian Country. However, at this time, there is no Indian Country within the State of Indiana.
        J. What Is Codification and Is EPA Codifying Indiana's Hazardous Waste Program as Authorized in This Rule?
        Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. Indiana's rules, up to and including those revised January 4, 2001, have previously been codified through the incorporation-by-reference effective December 24, 2001 (66 FR 53728, October 24, 2001). We reserve the amendment of 40 CFR part 272, subpart P for the codification of Indiana's program changes until a later date.
        K. Administrative Requirements

        The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
        Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order.

        This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects in 40 CFR Part 271
          Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

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

          Dated: March 30, 2004.
          Bharat Mathur,
          Acting Regional Administrator, Region 5.

      [FR Doc. 04-8910 Filed 4-19-04; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 648
        [Docket No. 070322066-7066-01; I.D. 031307C]
        RIN 0648-AU51
        Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Fisheries; Regulatory Amendment to Reconcile State and Federal Commercial Fishing Vessel Permit Programs

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes regulations to modify the permitting and vessel replacement provisions for Federal limited access permit programs of the Northeastern United States, excluding American lobster. This action is intended to prevent fishing effort beyond what is accounted for in the FMPs for each fishery and to reinforce efforts undertaken by state fishery management agencies at targeting regulations specifically for vessels that participate wholly in state water fisheries. These measures are necessary to meet the conservation and management requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

          DATES:
          Comments must be received by May 7, 2007.

          ADDRESSES:
          Comments may be submitted by any of the following methods:
          • E-mail: NERO.Permit@NOAA.gov. Include in the subject line the following: Comments on the Proposed Rule for Permit Program Reconciliation.
          • Federal e-Rulemaking Portal: http:/www.regulations.gov.

          • Mail: Paper, disk, or CD-ROM comments should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on the Proposed Rule for Permit Program Reconciliation.”
          • Fax: (978) 281-9135.
          Copies of this regulatory amendment, its Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and the Environmental Assessment (EA) are available from Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930. A summary of the IRFA is provided in the Classification section of this proposed rule.

          FOR FURTHER INFORMATION CONTACT:
          Brian Hooker, Fishery Policy Analyst, phone: (978) 281-9220, fax: (978) 281-9135.

        SUPPLEMENTARY INFORMATION:
        Background
        State and Federal fishery management plans may differ in reporting requirements, participation restrictions, and overall strategies to control fishing mortality. These programs may be successful in achieving their objectives only when a vessel fishes in one program, either state or Federal, for an entire permit year because the management measures are typically based on analyses of fishing effort, and where that effort is expected to take place. Federal regulations are rarely the exclusive authority governing federally permitted commercial fishing vessels. Vessels that have both Federal and state permits are bound by the more restrictive of the regulations in effect. In contrast, vessels without a valid Federal permit can be permitted by a state to fish exclusively in state territorial waters, and such vessels do not have to comply with Federal fishing regulations.
        Current regulations require that federally permitted fishing vessels must abide by Federal fishing regulations, regardless of whether the vessel is fishing in state or Federal waters. However, vessels that delay getting their Federal permit may be authorized to participate exclusively in state water fisheries under state rules and regulations. Although splitting fishing effort between state and Federal waters may have repercussions across all federally managed fisheries, the impact of vessels splitting fishing effort between state and Federal programs is thought to be greatest in Federal fisheries utilizing a fishing effort control program referred to as a days-at-sea (DAS) program, which is common in Federal fisheries management in New England. This type of program limits the amount of days that a federally permitted commercial fishing vessel can fish each year. Under current Federal regulations, a DAS vessel could increase its overall effort by fishing in state waters outside of the DAS program prior to renewal of its Federal DAS permit. However, state regulations could prohibit this practice, as in the case of the Massachusetts groundfish fishery. Although it is estimated that less than 10 percent of federally permitted vessels currently exploit this “loophole,” there is concern that this practice could expand, especially should further reductions in DAS be necessary. Thus, the purpose of this action is to remove an unintended consequence of having a Federal permit renewal system that effectively allows for a temporary relinquishment of a Federal limited access permit.
        This action would apply only to Federal limited access and moratorium commercial fishing vessel permit holders. The terms (limited access( and (moratorium( in regards to Federal permit programs are synonymous. A limited access permit is a permit that an individual has applied for and received based on qualification criteria set forth in the FMP. By applying for and receiving a limited access permit, a vessel owner has agreed to abide by a fishing program that, in turn, grants exclusive fishing privileges. Under current regulations, a Federal limited access permit must be renewed on an annual basis. If the permit is not issued within 1 year of the last day of the permit year for which it was valid, the permit is cancelled and rendered ineligible for renewal. In general, limited access permits were developed in order to control fishing effort in various fisheries that are, or were, being harvested at rates above the maximum sustainable yield for the fishery. These limited access permits often have privileges, such as higher trip limits, or exclusive access to a particular fishery. As a result, these permits are considered valuable. Open access permits, on the other hand, can be applied for with minimum qualification criteria, and received on an annual basis without any deadlines. A vessel owner may elect to not apply for an open access permit in one year, and still be eligible to receive the permit again 2 years later. Open access permits often do not carry the same exclusive fishing privileges associated with limited access permits and thus do not carry the same value.
        In order to maintain current ownership and vessel information, NMFS requires that vessel owners submit documentation on an annual basis prior to receiving the applicable limited access permit(s) for the permit year in question. This annual “renewal” or “reissuance” also serves as a way to ensure compliance with vessel reporting requirements for fishing trips taken during the year prior, since the new permit is not issued until these reports are received by NMFS. One aspect of a limited access permit is eligibility. Eligibility is the permit privilege a vessel owner maintains to renew annually his/her vessel(s limited access permit. Currently, eligibility to renew a limited access permit remains in place for up to 11 months after the start of the new permit year. Until such time that the vessel renews its limited access permit, its Federal fishing privileges are suspended. It was never the intention of the current regulations to allow a vessel to participate wholly in a state fishing program in which it would not otherwise be allowed to participate under the conditions of the Federal permit program for which it is eligible, while the vessel(s Federal permits are suspended. Often this exclusive state waters activity is not reported directly to NMFS, whereas, under the conditions of the Federal limited access permit, such reporting would be required.
        Proposed Measures

        This proposed action intends to remedy the situation described in the preceding paragraphs by making it a condition upon issuance of a limited access permit that the permit holder agrees that the vessel may not fish for or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any subsequent fishing year, or the permit either has been voluntarily relinquished or otherwise forfeited, revoked, or transferred from the vessel. This condition of the limited access permit would be in effect for the entire duration of the permit's renewal eligibility period. For example, if an issued permit expired on April 30, 2006, a vessel owner would have until April 30, 2007, to be reissued the permit. Thus, the vessel owner would be subject to the permit condition through April 30, 2007. By participating in a Federal limited access fishing program, a vessel owner is agreeing to participate wholly in that program and be subject to all of its accompanying regulations until such time that the vessel owner is no longer eligible to renew his/her vessel(s limited access permit. Thus, the only aspect of the permit that is suspended until the permit renewal application has been processed is its fishing privilege, whether or not such activity occurs in state or Federal waters. This measure would impact the Federal limited access commercial fishing vessel permits issued by the NMFS Northeast Regional Office that are listed in Table 1. The second measure proposed under this action would limit the number of vessel replacements allowed during a permit year. This measure would also be applicable to all limited access vessels listed in Table 1. These measures are discussed separately below.

          Table 1. List of Northeast Region Limited Access Permit Categories Affected By Proposed Rule

            FISHERY
            LIMITED ACCESS PERMIT CATEGORIES

            Atlantic Sea Scallop
            2, 3, 4, 5, 6, 7, 8, 9

            NE Multispecies
            A, C, D, E, F, HA

            Monkfish
            A, B, C, D, F, G, H

            Maine Ocean Quahog
            7

            Summer Flounder
            1

            Scup
            1

            Black Sea Bass
            1

            Squid, Mackerel, Butterfish
            1, 5

            Golden Tilefish
            A, B, C

            Atlantic Deep-Sea Red Crab
            B, C

        Limited Access Permit Fishing Prohibition After Expiration and Prior to Renewal
        Under this proposed action, a commercial fishing vessel that was issued, or is in possession of, a valid Federal limited access fishing permit at the end of the permit year immediately preceding the current permit year, would be prohibited from landing any fish managed under 50 CFR part 648 for which the vessel would be authorizedunder the conditions of the limited access permit(s), unless at least one of the following conditions is met:
        • The vessel owner has renewed the Federal limited access permit(s) for the current permit year;
        • The vessel owner has voluntarily permanently relinquished the vessel(s Federal limited access permit(s); or
        • The vessel has been replaced by another vessel and the permit eligibility has moved to the new vessel or was placed into Confirmation of Permit History (CPH).
        In other words, a vessel owner who is eligible to renew his/her vessel(s Federal limited access permit would be prohibited from fishing for and/or possessing any fish for which the vessel would be authorized under the respective limited access permit, from any waters, unless the limited access permit(s) has been renewed or removed from the vessel. All vessel reporting requirements for the limited access permits the vessel is eligible to renew would remain in effect unless the limited access permit(s) have been relinquished or transferred to another vessel or CPH. This would include completed fishing vessel trip reports (VTRs) for the entire period that the vessel was issued or eligible to be issued a limited access permit.
        Under this action, a Federal limited access permitted vessel would be prohibited from obtaining a Federal open access fishing permit until such time that the limited access permits have been renewed, relinquished, or transferred. Federal open access and limited access permits may be renewed and applied for at the same time.
        This action would thus commit a limited access vessel to a specific fishery program (state or Federal) prior to engaging in any fishing activities. This measure would eliminate a loophole in the regulations currently exploited by a minority of vessel owners and/or operators and would potentially prevent more vessel owners and/or operators from taking advantage of this situation in the future.
        One-Time Vessel Replacement Per Permit Year
        This action would allow only one transfer of limited access permits per permit year, unless the vessel being replaced has been rendered inoperable and not repairable, due to unforeseen circumstances. The intent of this measure is to deter vessel owners from moving limited access permits off their primary vessel prior to the start of a permit year and then moving them back onto their primary vessel after the primary vessel has fished part of the permit year in a state waters fishery program. Under this scenario, a vessel owner would not be able to move the permits back onto the secondary vessel prior to the start of the following permit year. It was not foreseen that the flexibility in replacing a fishing vessel granted via the current regulation would be abused in order to circumvent fishing regulations. The current vessel replacement measures were implemented in order to rectify previous vessel replacement measures, which could potentially have compromised vessel safety by diminishing a vessel owner's flexibility to purchase and replace a vessel in a timely manner. The proposed regulations would maintain this flexibility while ensuring that the vessel replacement program is not utilized to avoid Federal regulations for a period of time.
        Classification
        At this time, NMFS has not determined that this proposed rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
        Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which describes the economic impacts that this proposed rule, if adopted, would have on small entities. A description of the reasons why this action is being considered, as well as the objectives of and legal basis for this proposed rule is found in the preamble to this proposed rule and is not repeated here. There are no Federal rules that may duplicate, overlap, or conflict with this proposed rule. The proposed action would modify the requirements for vessels issued or eligible to be issued certain Federal limited access commercial fishing vessel permits in the Northeast Region. Current regulations allow the development of such measures, provided they are consistent with the FMP objectives.

        The proposed alternative to modify the limited access permit regulations was compared to the No Action alternative and an alternative that would issue a (reserve permit( in the event a permit renewal application was not received by a set deadline. The No Action alternative would result in the continuation of the current management measures.

        Description and Estimate of the Number of Small Entities to which this Proposed Rule would Apply
        Approximately 3,700 vessels could be affected by this action. In all, these participants generate close to $ 1 billion annually from the sale of fish and shellfish. The Small Business Administration (SBA) size standard for small commercial fishing entities is $ 4.0 million in gross receipts and would apply to all limited access permit holders affected by this action. Therefore, this proposed rule would not have a differential impact between small and large entities.
        Data compiled by NMFS from the 2004 fishing year (FY) indicate that 64 vessels delayed their permit renewal and made landings during the time the Federal permit was invalid. In the same year eight vessels were replaced that reported landings later in the same fishing year. Thus, this rule would potentially impact 72 vessels out of the over 3,700 limited access vessels in the NE Region. An average of 94 percent of vessel owners here renewed their permits by May 1 over the last few years. With this level of compliance, only about 370 entities, including the aforementioned vessels that reported landings during this time period, would likely be affected by the permit renewal portion of this action.
        Federal permit data compiled by the NMFS NE Regional Office indicate that 64 vessels delayed the renewal of their Federal limited access permits in 2004 and also had landings both with and without their Federal permit. In the NE multispecies fishery, where the practice is most acute, between 2002 and 2005 only nine vessels repeatedly delayed the renewal of their Federal limited access NE multispecies permit. In addition to vessels delaying their permit renewal, some vessels are replaced by another fishing vessel during the fishing year. The former vessel may then continue to fish outside of Federal regulations in state waters. Across all limited access fisheries, about eight vessels per year land fish as a result of replacing a vessel and then continuing to fish with the old vessel in 2004.
        Economic Impacts of this Proposed Action
        Analyses of data showed that only a small number of vessels currently exploit the loophole the proposed action would fix. This action would affect all limited access fisheries in the NE Region. However, a fishery of particular concern due to significant state water and Federal water components, is the fishery that catches Gulf of Maine and Georges Bank cod stocks in the NE multispecies fishery. Thus, for the purposes of this economic analysis, the impact to the vessel owners active in the limited access multispecies fishery is considered the upper bound of economic impacts to all the affected fisheries. In 2004, an average of 7,855 lb (3,563 kg) (86,409 lb (39,194 kg) total) of cod was landed by 11 fishing vessels (approximately 4,000 NE multispecies limited access permits were issued in FY 2004) fishing exclusively under state fishing regulations by vessels that were eligible for a limited access permit in the previous permit year. At an ex-vessel price of $2.50 per pound for cod, this action could conceivably reduce annual revenues of a given vessel owner by $36,000. However, there is no indication from this analysis that these same fish would not have been caught by state-permitted vessels that are not eligible for a limited access permit, nor that this same quantity of fish would not have been caught by a federally permitted limited access commercial fishing vessel. The total ex-vessel value of cod landed in 2004 was $21,690,850. Thus, this action could cause a slightly negative economic impact of less than 1 percent to the commercial groundfish industry. In 2004, other DAS fisheries such as monkfish and sea scallop had average landings per limited access eligible vessel of 5,852 lb (2,654 kg) whole weight (N= 21), and 3,270 lb (1,483 kg) (N=9) landed weight, respectively. For a monkfish vessel, this would result in a decrease in revenue of approximately $8,193 (using an average monkfish ex-vessel price of $1.40 per lb whole weight). This would result in a decrease in revenue for a given scallop vessel of approximately $23,707 (using a scallop ex-vessel price of $7.25 per lb landed weight). The total ex-vessel value of the monkfish and scallop fisheries were $33,331,944 and $320,696,436, respectively, in 2004. All other limited access fisheries with an inshore (state waters) stock component are managed through a hard total allowable catch (TAC). These TAC programs are managed on either a coast-wide or state-by-state basis. Federal TAC programs, for the most part, are equivalent to the state programs for each fishery. When this equivalency exists there is no advantage for a vessel owner eligible for a Federal limited access permit to delay his/her Federal permit renewal in order to fish exclusively under a state permit. However, in the absence of Federal and state equivalency in a TAC program (e.g., the closure of federally controlled waters, lower Federal possession limits, etc.) there could be an advantage to splitting fishing effort between state and Federal fisheries in the same fishing year.
        Economic Impacts of Alternatives to the Proposed Action
        In addition to the proposed alternative described in the preamble, a second, non-preferred alternative, and the status quo alternative were also analyzed. The status quo alternative would leave the current regulations in place. The second, non-preferred alternative would also modify the current Federal commercial fishing vessel limited access permit renewal process; however unlike the preferred alternative, this alternative places a deadline on the limited access permit renewal for the permit year in question. Under this alternative, if the vessel owner misses the application deadline the vessel would not lose its eligibility to apply for the Federal limited access permit for the following permit year. If the vessel owner fails to submit a complete renewal application 30 days prior to the start of the permit year for which the permit is required, the vessel owner has, by default, elected to either fish exclusively in state waters, or not to fish at all. A complete application received after 30 days prior to the start of the permit year for which the permit is required would reserve that vessel owner's eligibility to apply for Federal permits the following fishing year through the issuance of a Federal “Reserve Permit.” If the commercial fishing vessel does not apply for and receive either a limited access permit or a reserve permit during a permit year it would become ineligible to receive the limited access permit at any future time. The one-time per year vessel replacement provision is the same as outlined in the Agency's preferred alternative.

        The second non-preferred alternative, would have the same reduction in ex-vessel value that was outlined in the section of this Classification section detailing the preferred alternative. However, this alternative would have a greater economic impact in that vessel owners would be prohibited from renewing their Federal limited access permit at any time during the permit year, if they failed to renew their permit prior to the start of the permit year. The 2004 data analyzed indicated that approximately 2 percent (65 entities) of limited access permit holders delayed the renewal of their permits. It is not feasible to identify the total landings and ex-vessel value of these landings to determine if this 2 percent contribute a greater or lesser amount to annual fishery landings than an average vessel.

        The economic impacts of the non-preferred alternative are greater than those under the status quo and preferred alternatives. It is estimated that the status quo alternative would realize a small short-term positive economic impact to the fishing industry due to a slight increase in landings. It is highly probable that this increase, especially if more vessels take advantage of fishing in both state and Federal fishing programs in the same permit year, would be offset in the future by a decrease in landings due to more restrictive fishing regulations required after target fishing mortality rates are not realized.
        Public Reporting Burden
        This proposed rule contains collection of information requirements previously approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) under OMB control numbers 0648-0202 and 0648-0212. The current expiration dates for the reporting requirements under these collections are October 31, 2009, and September 30, 2008, respectively. The public(s reporting burden for the collection-of-information requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information requirements.
        Notwithstanding any other provision of the law, no person is required to respond to, and no person shall 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.

          List of Subjects in 50 CFR Part 648

        Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: April 2, 2007.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

        For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

          2. In § 648.2, the definition for “Permit year” is added, in alphabetical order, to read as follows:

          § 648.2
          Definitions.

            Permit year means:
          (1) For the Atlantic sea scallop and Atlantic deep-sea red crab fisheries, from March 1 through the last day of February of the following year;
          (2) For all other fisheries in this part, from May 1 through April 30 of the following year.

        3. In § 648.4, paragraphs (a)(1)(i)(B), (a)(1)(i)(E), introductory text (a)(1)(i)(K), and (b) are revised to read as follows:

          § 648.4
          Vessel permits.
          (a)* * *
          (1)* * *
          (i)* * *
          (B) Application/renewal restrictions. All limited access or moratorium permits established under this section must be issued on an annual basis by the last day of the permit year for which the permit is required, unless a confirmation of permit history (CPH) has been issued as specified in paragraph (a)(1)(i)(J) of this section. Application for such permits must be received no later than 30 days before the last day of the permit year. Failure to renew a limited access or moratorium permit in any permit year bars the renewal of the permit in subsequent years. If a vessel is issued more than one limited access or moratorium permit under this section, these permits will be regarded as a permit suite and must be renewed together in accordance with this paragraph (a)(1)(i)(B). Open access permits may not be issued to a vessel eligible to renew a limited access or moratorium permit until such time that the vessel(s limited access or moratorium permit(s) are renewed, or the limited access or moratorium permit has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section, or transferred from the vessel via a replacement vessel pursuant to paragraph (a)(1)(i)(E) of this section, or confirmation of permit history pursuant to paragraph (a)(1)(i)(J) of this section.
          (E) Replacement vessels. With the exception of vessels that have obtained a limited access Handgear A permit described in § 648.82(b)(6), an owner of a vessel that has been issued any limited access or moratorium permit under this section is limited to one vessel replacement per permit year, using the earliest permit year start date of the limited access or moratorium permits for which the vessel is eligible, unless the vessel has been rendered inoperable and non-repairable. To be eligible for a limited access or moratorium permit under this section, the replacement vessel must meet the following criteria and any other applicable criteria under paragraph (a)(1)(i)(F) of this section:
          (K) Abandonment or voluntary relinquishment of a limited access or moratorium permit. If a vessel's limited access or moratorium permit for a particular fishery is voluntarily relinquished to the Regional Administrator or abandoned through failure to renew or otherwise, no limited access or moratorium permit for that fishery may be reissued or renewed based on that vessel(s limited access or moratorium permit history or to any other vessel relying on that vessel(s limited access or moratorium permit history.
          (b) Permit conditions. (1)(i) Any person who applies for and is issued or renews a fishing permit under this section agrees, as a condition of the permit, that the vessel and the vessel's fishing activity, catch, and pertinent gear (without regard to whether such fishing occurs in the EEZ or landward of the EEZ; and without regard to where such fish or gear are possessed, taken, or landed); are subject to all requirements of this part, unless exempted from such requirements under this part. All such fishing activities, catch, and gear will remain subject to all applicable state requirements. Except as otherwise provided in this part, if a requirement of this part and a management measure required by a state or local law differ, any vessel owner permitted to fish in the EEZ for any species managed under this part, except tilefish, must comply with the more restrictive requirement. Except as otherwise provided in this part, if a requirement of this part and a management measure required by a state or local law differ, any vessel owner permitted to fish in the tilefish management unit for tilefish managed under this part must comply with the more restrictive requirement. Owners and operators of vessels fishing under the terms of a summer flounder moratorium, scup moratorium, or black sea bass moratorium; or a spiny dogfish or bluefish commercial vessel permit, must also agree not to land summer flounder, scup, black sea bass, spiny dogfish, or bluefish, respectively, in any state after NMFS has published a notification in the Federal Register stating that the commercial quota for that state or period has been harvested and that no commercial quota is available for the respective species. A state not receiving an allocation of summer flounder, scup, black sea bass, or bluefish, either directly or through a coast-wide allocation, is deemed to have no commercial quota available. Owners and operators of vessels fishing under the terms of the tilefish limited access permit must agree not to land tilefish after NMFS has published a notification in the Federal Register stating that the quota for the tilefish limited access category under which a vessel is fishing has been harvested. Owners or operators fishing for surfclams and ocean quahogs within waters under the jurisdiction of any state that requires cage tags are not subject to any conflicting Federal minimum size or tagging requirements. If a surfclam and ocean quahog requirement of this part differs from a surfclam and ocean quahog management measure required by a state that does not require cage tagging, any vessel owners or operators permitted to fish in the EEZ for surfclams and ocean quahogs must comply with the more restrictive requirement while fishing in state waters. However, surrender of a surfclam and ocean quahog vessel permit by the owner by certified mail addressed to the Regional Administrator allows an individual to comply with the less restrictive state minimum size requirement, as long as fishing is conducted exclusively within state waters.
          (ii) Any person who applies for or has been issued a limited access or moratorium permit on or after [EFFECTIVE DATE OF FINAL RULE] agrees, as a condition of the permit, that the vessel may not fish for, catch, possess, or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any subsequent fishing year, or the permit either has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section or otherwise forfeited, revoked, or transferred from the vessel.
          (2) A vessel that is issued or renewed a limited access or moratorium permit on or after [EFFECTIVE DATE OF FINAL RULE] for any fishery governed under this section is prohibited from fishing for, catching, possessing, and/or landing any fish for which the vessel would be authorized under the respective limited access or moratorium permit in or from state and/or Federal waters in any subsequent fishing year, unless and until the limited access or moratorium permit has been issued or renewed pursuant to paragraph (a)(1)(i)(B) of this section and the valid permit is on board the vessel. This prohibition does not apply to a vessel for which the limited access or moratorium permit has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section or otherwise forfeited, revoked, or transferred from the vessel.

        4. In § 648.14, paragraph (a)(31)(ii) is revised, and paragraphs (a)(178) and (a)(179) are added to read as follows:

          § 648.14
          Prohibitions.
          (a) * * *
          (31) * * *
          (ii) The NE multispecies were harvested by a vessel not issued a NE multispecies permit, nor eligible to renew or be reissued a limited access NE multispecies permit as specified in § 648.4 (b)(2), that fishes for NE multispecies exclusively in state waters;
          (178) If eligible for re-issuance or renewal of a limited access or moratorium permit:
          (i) Fish for, take, catch, harvest or land any species of fish regulated by this part for which the vessel is eligible to possess under a limited access or moratorium permit until the vessel has been issued the applicable limited access or moratorium permit by NMFS.
          (ii) [Reserved]
          (179) Attempt to replace a limited access or moratorium fishing vessel, as specified at § 648.4 (a)(1)(i)(E), more than one time during a permit year, unless the vessel has been rendered inoperable and non-repairable.

      [FR Doc. E7-6490 Filed 4-5-07; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 0907301206-91208-01]
        RIN 0648-AY13
        Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Specifications and Management Measures

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes 2010 specifications and management measures for Atlantic mackerel, squid, and butterfish (MSB). This action proposes to maintain quotas for Atlantic mackerel (mackerel), Illex squid (Illex), Loligo squid (Loligo), and butterfish at the same levels as 2009. This action also proposes to modify accounting procedures for underages of Trimester 1 quotas in the Loligo fishery so that Trimester 1 quota underages that are greater than 25% of the Trimester 1 quota would be allocated equally to Trimesters 2 and 3, and underages that are less than 25% of the Trimester 1 quota would be allocated to Trimester 3. Additionally, this action proposes to increase the minimum mesh size requirement for codend covers in the Loligo fishery from 4.5 inches to 5 inches. These proposed specifications and management measures promote the utilization and conservation of the MSB resource.

          DATES:
          Public comments must be received no later than 5 p.m., eastern standard time, on December 14, 2009.

          ADDRESSES:

          Copies of supporting documents used by the Mid-Atlantic Fishery Management Council (Council), including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-6790. The EA/RIR/IRFA is accessible via the Internet at http://www.nero.noaa.gov.
          You may submit comments, identified by 0648-AY13, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking portal http://www.regulations.gov;

          • Fax: (978) 281-9135, Attn: Carrie Nordeen;
          • Mail to NMFS, Northeast Regional Office, 55 Great Republic Dr, Gloucester, MA 01930. Mark the outside of the envelope “Comments on 2010 MSB Specifications.”

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

          FOR FURTHER INFORMATION CONTACT:
          Carrie Nordeen, Fishery Policy Analyst, 978-281-9272, fax 978-281-9135.

        SUPPLEMENTARY INFORMATION:
        Background
        Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) appear at 50 CFR part 648, subpart B. Regulations governing foreign fishing appear at 50 CFR part 600, subpart F. These regulations at § 648.21 and 600.516(c), require that NMFS, based on the maximum optimum yield (Max OY) of each fishery as established by the regulations, annually publish a proposed rule specifying the amounts of the initial optimum yield (IOY), allowable biological catch (ABC), domestic annual harvest (DAH), and domestic annual processing (DAP), as well as, where applicable, the amounts for total allowable level of foreign fishing (TALFF) and joint venture processing (JVP) for the affected species managed under the FMP. In addition, these regulations allow specifications to be specified for up to 3 years, subject to annual review. The regulations found in § 648.21 also specify that IOY for squid is equal to the combination of research quota (RQ) and DAH, with no TALFF specified for squid. For butterfish, the regulations specify that a butterfish bycatch TALFF will be specified only if TALFF is specified for mackerel.

        At its June 9-11, 2009, meeting in New York, NY, the Mid-Atlantic Fishery Management Council (Council) recommended 2010 MSB specifications. The recommended specifications for mackerel, Illex, Loligo, and butterfish are the same as those implemented in 2009. For Loligo, the Council recommended a modification in accounting Trimester 1 quota underages. The Council also recommended increasing the minimum mesh size requirement for codend covers in the Loligo fishery. The Council submitted these recommendations, along with the required analyses, for agency review on August 10, 2009.
        Research Quota

        Framework Adjustment 1 to the FMP established the Mid-Atlantic Research Set-Aside (RSA) Program, which allows research projects to be funded through the sale of fish that has been set aside from the total annual quota. The RQ may vary between 0 and 3 percent of the overall quota for each species. The Council has recommended that 3 percent of the 2010 Loligo, Illex, butterfish, and mackerel quotas be set aside to fund projects selected under the 2010 Mid-Atlantic RSA Program.

        NMFS solicited research proposals under the 2010 Mid-Atlantic RSA Program through the Federal Register (74 FR 75, January 2, 2009). The deadline for submission was March 3, 2009. The project selection and award process for the 2010 Mid-Atlantic RSA Program has not concluded and therefore, the research quota awards are not known at this time. When the selection process has concluded, projects requesting RQ will be forwarded to the NOAA Grants Office for award. If any portion of the RQ is not awarded, NMFS will return any un-awarded RQ to the commercial fishery either through the final 2010 MSB specification rulemaking process or through the publication of a separate notice in the Federal Register notifying the public of a quota adjustment.
        Vessels harvesting RQ in support of approved research projects would be issued exempted fishing permits (EFP) authorizing them to exceed Federal possession limits and to fish during Federal quota closures. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that interested parties be provided an opportunity to comment on all proposed EFPs. These exemptions are necessary to allow project investigators to recover research expenses, as well as adequately compensate fishing industry participants harvesting RQ. Vessels harvesting RQ would operate within all other regulations that govern the commercial fishery, unless otherwise exempted through a separate EFP.
        2010 Proposed Specifications and Management Measures

          Table 1. Proposed Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2010 Fishing Year.

            Specifications

              Loligo

              Illex

            Mackerel
            Butterfish

            Max OY
            32,000
            24,000
            N/A
            12,175

            ABC
            19,000
            24,000
            156,000
            1,500

            IOY3

            18,430
            23,280
            111,5501

            485

            DAH
            19,000
            24,000
            115,0002

            500

            DAP
            19,000
            24,000
            100,000
            500

            JVP
            0
            0
            0
            0

            TALFF
            0
            0
            0
            0

            1 IOY may be increased during the year, but the total ABC will not exceed 156,000 mt.

            2 Includes a 15,000 mt catch of Atlantic mackerel by the recreational fishery.

            3 Excludes 3 percent of the IOY for RQ.

        Atlantic Mackerel
        The status of the Atlantic mackerel stock was most recently assessed at the 42nd Stock Assessment Review Committee (SARC) in late 2005. SARC 42 concluded that the mackerel stock is not overfished and overfishing is not occurring. According to the FMP, mackerel ABC must be calculated using the formula ABC = T - C, where C is the estimated catch of mackerel in Canadian waters for the upcoming fishing year and T is the yield associated with a fishing mortality rate that is equal to the target fishing mortality rate (F). Based on projections from SARC 42, the yield associated with the target F of 0.12 in 2008 is 211,000 mt. SARC 42 did not project yields for 2010, but the yield projections from 2008 will be used as a proxy until new projections are calculated in the next mackerel stock assessment, currently scheduled for December 2009. Canadian catch of mackerel has been increasing in recent years; therefore, the estimate of Canadian catch for 2010 will remain at the 2009 level of 55,000 mt. Thus, 211,000 mt minus 55,000 mt results in a proposed 2010 mackerel ABC of 156,000 mt.
        This action proposes a mackerel IOY of 115,000 mt. The Council selected an IOY under all three alternatives that is consistent with the recent increases in processing capacity and domestic landings of mackerel. The recent increase in US processing capacity in conjunction with relatively high world demand has created conditions which are favorable for continued growth of the US mackerel fishery. Industry testimony from shore side processors indicated that the ability and intent exist to land and process well in excess of 100,000 mt of Atlantic mackerel in 2010. To reach this level, the Atlantic mackerel stock will need to be sufficiently abundant and available in the right sizes to the harvest sector (unlike the situations in 2007-2009). Industry members have testified that if stock conditions are similar to those prior to 2005, then they fully intend and expect to land the entire IOY. The proposed 115,000 mt IOY is consistent with mackerel regulations at § 648.21(b)(2)(ii), which state that IOY is a modification of ABC, based on social and economic factors, and must be less than or equal to ABC.
        The Magnuson-Stevens Act provides that the specification of TALFF, if any, shall be that portion of the optimum yield (OY) of a fishery that will not be harvested by vessels of the United States. TALFF would allow foreign vessels to harvest U.S. fish and sell their product on the world market, in direct competition with the U.S. industry efforts to expand exports. While a surplus existed between ABC and DAH for many years, that surplus has disappeared due to the downward revision in the estimate of MSY and recent increases in both US and Canadian landings. The Council concluded that no surplus exists between the US portion of the sustainable yield from this stock and the IOY for 2010. As a result TALFF is specified as zero under all three alternatives considered by the Council. Based on analysis and a review of the state of the world mackerel market and possible increases in US production levels, the Council concluded that specifying an IOY resulting in zero TALFF will yield positive social and economic benefits to the mackerel fishery and to the Nation.
        For these reasons, consistent with the Council's recommendation, NMFS proposes to specify IOY at a level that can be fully harvested by the domestic fleet, thereby precluding the specification of a TALFF, in order to assist the U.S. mackerel industry to expand. This would yield positive social and economic benefits to both U.S. harvesters and processors. NMFS concurs that it is reasonable to assume that in 2010 the commercial fishery has the ability to harvest 100,000 mt of mackerel. Thus DAH would be 115,000 mt, which is the commercial harvest plus the 15,000 mt available for the recreational fishery. Because IOY = DAH, this specification is consistent with the Council's recommendation that the level of IOY should not provide for a TALFF.

        NMFS proposes to maintain JVP at zero (the most recent allocation was 5,000 mt of JVP in 2004), consistent with the Council's recommendation. In previous years, the Council recommended a JVP greater than zero because it believed U.S. processors lacked the ability to process the total amount of mackerel that U.S. harvesters could land. However, for the past 6 years, the Council has recommended zero JVP because the surplus between DAH and DAP has been declining as U.S. shoreside processing capacity for mackerel has expanded. The Council also heard from the industry that the availability (i.e., size, distribution, and abundance) of mackerel to the fishery, rather than processing capacity, has curtailed catch in recent years. The Council concluded that processing capacity is no longer a limiting factor relative to domestic production of mackerel, so JVP would be specified at zero.
        Inseason Adjustment of the Mackerel IOY

        Regulations at § 648.21(e) provide that specifications may be adjusted inseason during the fishing year by the NMFS Northeast Regional Administrator (Regional Administrator), in consultation with the Council, by publishing a notice in the Federal Register and providing a 30-day public comment period. In 2010, as in 2009, NMFS's Northeast Fishery Statistic Office will summarize mackerel landings from dealer reports on a weekly basis and post this information on the Northeast Regional Office website (http://www.nero.noaa.gov/). NMFS staff will closely monitor these landings and industry trends to determine if an inseason adjustment is necessary. If, using landings projections and all other available information, the Regional Administrator determines that 70 percent of the Atlantic mackerel IOY will be landed during the 2010 fishing year, the Regional Administrator will make available additional quota for a total IOY of 156,000 mt of Atlantic mackerel for harvest during 2010. Additionally, if an inseason adjustment of the IOY is warranted, the Regional Administrator will notify the Council and the inseason adjustment will be published in the Federal Register.
        Atlantic Squids

          Loligo

        Amendment 9 to the FMP (Amendment 9) (73 FR 37382, July 1, 2008) revised the proxies for Loligo target and threshold fishing mortality rates, FTarget and FThreshold, respectively, to reflect the analytical advice provided by the most recent Loligo stock assessment review committee (SARC 34). While Amendment 9 revised the formulas and values for these reference points, the function of the reference points remains unchanged. FTarget is the basis for determining OY and FThreshold determines whether overfishing is occurring.
        Because Loligo is a sub-annual species (i.e., has a lifespan of less than 1 year), the stock is solely dependent on sufficient recruitment year to year to prevent stock collapse. The revised proxies for FTarget and FThreshold implemented in Amendment 9 are fixed values based on average fishing mortality rates achieved during a time period when the stock biomass was fairly resilient (1987 - 2000). The revised proxies are calculated as follows: FTarget is the 75th percentile of fishing mortality rates during 1987 - 2000 and FThreshold is the average fishing mortality rates during the same period. The revised proxy for FTarget (0.32) is used as the basis for establishing Loligo OY. The use of a proxy is necessary because it is currently not possible to accurately predict Loligo stock biomass because recruitment, which occurs throughout the year, is highly variable inter-annually and influenced by changing environmental conditions.
        Based on the revised biological reference points for Loligo, the Council recommended that the 2010 Loligo Max OY, ABC, IOY, DAH, and DAP remain at the 2009 level. Therefore, the proposed Loligo Max OY for 2010 is 32,000 mt and the proposed ABC, IOY, DAH, DAP is 19,000 mt.

        NMFS concurs with the Council's recommendation, therefore, this action proposes a 2010 Loligo Max OY of 32,000 mt and an ABC, IOY DAH, and DAP of 19,000 mt. The FMP does not authorize the specification of JVP and TALFF for the Loligo fishery because of the domestic industry's capacity to harvest and process the OY for this fishery.
        Distribution of the Loligo DAH

        As was done in 2007 to 2009, NMFS is proposing that the 2010 Loligo DAH be allocated into trimesters, consistent with the Council's recommendation. The proposed 2010 trimester allocations would be as follows:

          Table 2. Proposed Trimester Allocation of Loligo Quota in 2009

            Trimester
            Percent
            Metric Tons1

            I (Jan-Apr)
            43
            7,925

            II (May-Aug)
            17
            3,133

            III (Sep-Dec)
            40
            7,372

            Total
            100
            18,430

            1 Trimester allocations after 570 mt RQ deduction.

        This action proposes to adjust how Trimester I underages are distributed among the remaining Trimesters. Currently any overages or underages in Trimester I or II are applied to Trimester III. The proposed action would split the distribution of Trimester I underages evenly between Trimester II and III if the underage is greater than 25% of the Trimester I quota. All other underages or overages would be applied to Trimester III, as is currently done.
        In 2008, the fishery experienced a significant underage in Trimester I, which was then applied to Trimester III. However the fishery also experienced a closure during Trimester II. This resulted in the fishery being unable to harvest the total DAH in Trimester III. The proposed method of underage distribution will facilitate a reduction in small transfers that could lead to unforseable season openings or closures in Trimester II. This will prevent an underharvest of the annual quota, and distribute unharvested quota evenly throughout the year. However, as a result of both the inherent data processing time lag and late dealer reporting in the dealer reporting program, it is not possible to make the underage calculation and announce a quota adjustment until up to two months after Trimester 1 ends.
        Changes to Loligo Codend Mesh Size Requirements

        This action proposes to increase the “net strengthener”/“codend cover” minimum mesh requirement from 4.5 inches to 5 inches (inside stretch measurement). This would make the Loligo codend mesh size requirement consistent with the next highest mesh size currently required in another Mid-Atlantic fishery (Scup).

          Illex Squid
        The Illex stock was most recently assessed at SARC 42 in late 2005. While it was not possible to evaluate current stock status because there are no reliable current estimates of stock biomass or fishing mortality rate, qualitative analyses determined that overfishing had not likely been occurring.
        NMFS proposes to maintain the Illex specifications in 2010 at the same levels as they were for the 2009 fishing year, consistent with the Council's recommendation. This action proposes that the specification of Max OY, IOY, ABC, and DAH would be 24,000 mt. This level of DAH corresponds to a target fishing mortality rate of 75 percent FMSY. The FMP does not authorize the specification of JVP and TALFF for the Illex fishery because of the domestic fishing industry's capacity to harvest and to process the OY from this fishery.
        Butterfish

        The status of the butterfish stock was most recently assessed at SARC 38 in late 2004. The assessment concluded that, while overfishing of the stock is not occurring, the stock is overfished because estimates of stock biomass are below the minimum biomass threshold (1/2 BMSY). SARC 38 estimated the butterfish stock at 8,700 mt, 1/2 BMSY at 11,400 mt, and BMSY at 22,798 mt. Based on this information, the Council was notified by NMFS on February 11, 2005, that the butterfish stock was designated as overfished, pursuant to the requirements of section 304(e) of the Magnuson-Stevens Act. The Council has developed a rebuilding plan for the butterfish stock in Amendment 10 to the , which was approved October 7, 2009. As in 2009, the Council recommended that the quota be restricted to recent landings levels to prevent an expansion of the fishery and to protect the rebuilding stocks. Without a current market for butterfish, a directed butterfish fishery has not existed for several years, with landings since 2003 ranging from 437 mt to 674 mt.
        The MSB FMP specifies that maximum sustainable yield equals Max OY. SARC 38 re-estimated butterfish maximum sustainable yield as 12,175 mt, and the butterfish overfishing threshold at F of 0.38. Assuming that butterfish discards equal twice the level of landings, the amount of butterfish discards associated with approximately 500 mt of landings is approximately 1,000 mt.
        Therefore, in 2010, as implemented in 2009, the proposed specifications would set the Max OY at 12,175 mt; the ABC at 1,500 mt; and the IOY, DAH, and DAP at 500 mt. Harvest at these proposed levels should prevent overfishing on the butterfish stock in 2010. Additionally, consistent with MSB regulations, the Council recommended, and NMFS is proposing, zero TALFF for butterfish in 2010 because zero TALFF is proposed for mackerel.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provision of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after pubic comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from the Council or NMFS (see ADDRESSES) or via the Internet at http://www.nero.noaa.gov.
        Statement of Objective and Need

        This action proposes 2010 specifications and management measures for mackerel, squid, and butterfish, and proposes to modify accounting procedures for underages of Trimester 1 quotas in the Loligo fishery, and to increase the minimum mesh size requirement for codend covers in the Loligo fishery from 4.5 inches to 5 inches. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to this proposed rule and are not repeated here.
        Description and Estimate of Number of Small Entities to Which the Rule Will Apply

        Based on permit data for 2008, the numbers of potential fishing vessels in the 2009 fisheries are as follows: 371 for Loligo/butterfish, 77 for Illex, 2,342 for mackerel, and 2,193 vessels with incidental catch permits for squid/butterfish. There are no large entities participating in this fishery, as defined in section 601 of the RFA. Therefore, there are no disproportionate economic impacts on small entities. Many vessels participate in more than one of these fisheries; therefore, permit numbers are not additive.
        Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules.
        Minimizing Significant Economic Impacts on Small Entities
        Proposed Actions
        The mackerel IOY proposed in this action (115,000 mt, with 15,000 mt allocated to recreational catch) represents status quo, as compared to 2009, and is no constraint to vessels relative to the landings in recent years. Mackerel landings for 2004-2006 averaged 51,836 mt. Landings in 2007 were 25,547 mt, and landings in 2008 were 21,749 mt. This action also allows for an inseason adjustment, which would increase the IOY up to the ABC (156,000 mt), if landings approach the IOY early in the fishing year. Therefore, no reductions in revenues for the mackerel fishery are expected as a result of this proposed action.
        The Loligo IOY (19,000 mt) proposed in this action represents the status quo compared to the 2009. No reductions in revenues for the Loligo fishery are expected as a result of this proposed action.
        The Illex IOY (24,000 mt) proposed in this action represents status quo as compared to 2008. Implementation of this proposed action would not result in a reduction in revenue or a constraint on expansion of the fishery in 2010.
        The butterfish IOY proposed in this action (500 mt) represents status quo, as compared to 2009, and represents only a minimal constraint to vessels relative to the landings in recent years. Due to market conditions, there has not been a directed butterfish fishery in recent years; therefore, recent landings have been low. Given the lack of a directed butterfish fishery and low butterfish landings, the proposed action is not expected to reduce revenues in this fishery more than minimally.
        The accounting methods for Loligo trimester underages proposed in this action would distribute any substantial underage in Trimester I (greater than 25% of the Trimester I quota) evenly over the rest of the year. This method of transferring quota over to Trimester II from Trimester I may provide some economic benefits to this fishery compared to how the fishery was prosecuted under the 2008 and 2009 specifications.

        The proposed action would also increase the required minimum codend cover mesh size from 4.5 inches to 5.0 inches in the Loligo fishery. A mesh size increase is not expected to have a significant impact on landings since most of the selectivity occurs in the codend liner. Most vessels are equipped with nets meeting or exceeding the proposed codend minimum mesh size, so no negative impacts on revenues in this fishery are expected as a result of these alternatives.
        Alternatives to the Proposed Rule
        The Council analysis evaluated two alternatives to the proposed action for mackerel, which is also the status quo. The first alternative would have set the ABC at 56,000 mt, IOY at 56,000 mt, and the second alternative would have set the ABC at 186,000 mt, IOY at 115,000 mt. Based on recent harvest levels, neither of the ABC and IOY alternatives represent a constraint on vessels in this fishery. However, the ABC of 56,000 mt in the first alternative could result in forgone revenue if mackerel is available to the fishery.
        For Loligo, the alternatives to the proposed action would have set the Max OY at 32,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt, as in the proposed action, and the status quo. The alternatives differed only in how Trimester underages and overages were applied to the following Trimester quotas. The first alternative is the status quo, and would continue to transfer Trimester I and II overages or underages to Trimester III. The second alternative would make the full amount of a Trimester I underage available to Trimester II. The proposed action distributes any substantial underage in Trimester I (greater than 25% of the Trimester I quota) evenly over the rest of the year, which may positively impact Loligo stocks, and prevent an underharvest of the annual quota.

        The three alternatives to the proposed minimum codend mesh size increase were all more restrictive than the proposed increase or the status quo. The first alternative recommended a minimum codend mesh size of 6 inches. This mesh size represents the most frequently observed codend mesh size observed in the Loligo fishery. The second alternative recommended a 6 inch mesh size using a square mesh for codend covers. Although diamond mesh is predominantly used in the Loligo fishery, this alternative specified square mesh based on reduced obstruction caused by square mesh compared to the diamond mesh. The third alternative would have required a minimum codend mesh size of 9.5 inches using square mesh. This alternative is based on the largest and least obstructive mesh size and type that has been observed in use for a codend cover in the Loligo fishery.
        For Illex, one alternative was considered that would have set the ABC, IOY, DAH, and DAP at 19,000 mt rather than 24,000 mt. This quota was used between 1997 and 1999, and was associated with the SAW 21 stock assessment from 1996. However, this alternative would still allow harvest in excess of recent landings in this fishery.
        For butterfish, two alternatives were considered in addition to the recommended action. The first would have set Max OY at 12,175 mt, ABC at 4,525 mt, and IOY, DAH, and DAP 1,861 mt, which is equivalent to the 2005-2007 specifications. The second alternative would set Max OY at 12,175 mt, ABC at 9,131 mt, and IOY, DAH, and DAP at 3,044 mt. The amounts in this alternative represent the specifications that would result from the application of the F target control rule if the butterfish stock was declared rebuilt. This alternative has been included due to the potential for rapid rebuilding in the butterfish stock. However, this alternative was not adopted by the Council because it would likely result in overfishing and the additional depletion of the spawning stock biomass of an overfished species. None of these alternatives represent a constraint on vessels in this fishery or would reduce revenues in the fishery.

          List of Subjects in 50 CFR Part 648

        Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: November 03, 2009.
          John Oliver,
          Deputy Assistant Administrator For Operations, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

        2. In § 648.21, paragraph (f)(2) is revised to read as follows:

          § 648.21
          Procedures for determining initial annual amounts.
          (f) * * *
          (2) Any underages of commercial period quota for Trimester I, which are greater than 25% of the Trimester I quota, will be divided in half, with one portion applied to Trimester II, and one portion applied to Trimester III of the same year. Any underages of commercial period quota for Trimester I, which are less than 25% of the Trimester I quota, will be applied to Trimester III of the same year. Any overages of commercial quota for Trimesters I and II will be subtracted from Trimester III of the same year.

        3. In § 648.22, paragraph (a)(2)(i) is added and paragraph (a)(2)(ii) is added and reserved to read as follows:

          § 648.22
          Closure of the fishery.
          (a) * * *
          (2) * * *

          (i) If the Regional Administrator determines that the Trimester I closure threshold has been underharvested by 25% or more, then the amount of the underharvest shall be reallocated to Trimester II and Trimester III in equal amounts, through notice in the Federal Register.
          (ii) [Reserved]

        4. In § 648.23, paragraph (a)(3)(i) is revised to read as follows:

          § 648.23
          Gear restrictions.
          (a) ***
          (3) ***
          (i) Net obstruction or constriction. Owners or operators of otter trawl vessels fishing for and/or possessing Loligo shall not use any device, gear, or material, including, but not limited to, nets, net strengtheners, ropes, lines, or chafing gear, on the top of the regulated portion of a trawl net that results in an effective mesh opening of less than 17/8 inches (48 mm) diamond mesh, inside stretch measure. “Top of the regulated portion of the net” means the 50 percent of the entire regulated portion of the net that would not be in contact with the ocean bottom if, during a tow, the regulated portion of the net were laid flat on the ocean floor. However, owners or operators of otter trawl vessels fishing for and/or possessing Loligo may use net strengtheners (covers), splitting straps, and/or bull ropes or wire around the entire circumference of the codend, provided they do not have a mesh opening of less than 5 inches (12.7 cm) diamond mesh, inside stretch measure. For the purpose of this requirement, head ropes are not to be considered part of the top of the regulated portion of a trawl net.

      [FR Doc. E9-26847 Filed 11-10-09; 8:45 am]
      BILLING CODE 3510-22-S