        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 070612190-7326-01]
        RIN 0648-AV58
        Atlantic Highly Migratory Species; 2008 Atlantic Bluefin Tuna Quota Specifications and Effort Controls

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

          ACTION:
          Proposed rule; request for comments; notice of public hearings.

          SUMMARY:
          NMFS proposes initial 2008 fishing year specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT quotas for each of the established domestic fishing categories and to set effort controls for the General category and Angling category. This action is necessary to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS solicits written comments and will hold public hearings in October 2007 to receive oral comments on these proposed actions.

          DATES:
          Written comments must be received on or before November 1, 2007.
          The public hearing dates are:
          1. October 3, 2007, 7 p.m. to 9 p.m., Silver Spring, MD.
          2. October 23, 2007, 3 p.m. to 5 p.m., Gloucester, MA.

          ADDRESSES:
          You may submit comments, identified by “0648-AV58”, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov

          • Fax: 978-281-9340, Attn: Sarah McLaughlin
          • Mail: Sarah McLaughlin, Highly Migratory Species Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, One Blackburn Dr., Gloucester, MA 01930

          Instructions: All comments received are a part of the public record and will generally be posted to Portal http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
          The hearing locations are:
          1. Silver Spring — NOAA Science Center, 1301 East-West Highway, Silver Spring, MD 20910.
          2. Gloucester — NMFS, One Blackburn Drive, Gloucester, MA 01930.
          Supporting documents including the 2007 Environmental Assessment, Initial Regulatory Flexibility Analysis, and Regulatory Impact Review are available by sending your request to Sarah McLaughlin at the mailing address specified above.

          FOR FURTHER INFORMATION CONTACT:
          Sarah McLaughlin, 978-281-9260.

        SUPPLEMENTARY INFORMATION:
        Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and the ATCA. The ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and the ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).
        Background
        On May 28, 1998, NMFS published in the Federal Register (64 FR 29090) final regulations, effective July 1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) final regulations, effective November 1, 2006, implementing the Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP), which consolidates the management of all Atlantic HMS (i.e., sharks, swordfish, tunas, and billfish) into one comprehensive FMP. The implementing regulations for Atlantic HMS are at 50 CFR part 635.

        The 2008 annual specifications are necessary to implement the 2006 ICCAT quota recommendation, as required by the ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act. The proposed rule would: (1) establish initial quota specifications consistent with the BFT rebuilding program by adjusting the 2006 ICCAT-recommended quota as necessary for the 2008 fishing year (January 1, 2008 - December 31, 2008); (2) establish General category effort controls, including restricted fishing days (RFDs) and initial retention limits; and (3) establish Angling category retention limits for the 2008 fishing season. This action is published in accordance with the framework procedures set forth in the Consolidated HMS FMP and is supported by the analytical documents prepared for the Consolidated HMS FMP and for the 2007 BFT specifications and effort controls. Copies of these documents are available from NMFS (see ADDRESSES).
        2006 ICCAT Recommendation, BFT Underharvests, and Transfers to Other ICCAT Contracting Parties
        At its 2006 meeting, ICCAT recommended a western Atlantic BFT Total Allowable Catch (TAC) of 2,100 mt to allow for continued rebuilding of BFT through 2018. The TAC includes dead discards and will be effective through 2008, and thereafter until changed. The following are deducted from the TAC prior to determining the U.S. share percentage: 4 mt for the United Kingdom (in respect of Bermuda), 4 mt for France (in respect of St. Pierre and Miquelon), 25 mt for Mexico (to allow incidental catch in the longline fishery in the Gulf of Mexico), and 15 mt for Canada and 25 mt for the United States (for bycatch related to directed longline fisheries “in the vicinity of the management boundary area,” i.e., the Northeast Distant gear restricted area (NED), which was defined in the 2003 BFT annual specification rulemaking process as the Northeast Distant statistical area (68 FR 56783, October 2, 2003)). The U.S. share of the adjusted TAC is 57.48 percent, or 1,165.12 mt. Accounting for the 25 mt NED set-aside, the total U.S. allocation is 1,190.12 mt.

        The 2006 ICCAT recommendation also includes provisions to: (1) limit carryover of underharvest to no more than 50 percent of a contracting party's initial TAC; (2) limit mortality of school BFT to an average of 10 percent of the initial TAC, calculated on a four-year basis; and (3) allow a contracting party with a TAC allocation to make a one-time transfer within a fishing year of up to 15 percent of its TAC allocation to other contracting parties with TAC allocations, consistent with domestic obligations and conservation considerations. Regarding the third provision, the ICCAT recommendation stipulates that the quota transfer may not be used to cover overharvests, and that a contracting party that receives a one-time quota transfer may not retransfer that quota. For the United States, the 15-percent limit on quota transfer equates to 178.5 mt. Consistent with § 635.27(a)(8), NMFS would consider several factors in deciding whether or not the United States would enter into an arrangement with another ICCAT contracting party, including, but not limited to, the amount of quota to be transferred, the projected ability of U.S. vessels to harvest the U.S. TAC before the end of the fishing year, the potential benefits of the transfer to U.S. fishing participants, potential ecological impacts, and the contracting party's ICCAT compliance status. Should NMFS consider a transfer of U.S. quota to another ICCAT contracting party, NMFS would publish a separate action in the Federal Register, which would provide detail of the transaction considered, including information regarding the factors above.
        Domestic Allocations and Quotas
        The 1999 FMP and its implementing regulations established baseline percentage quota shares for the domestic fishing categories. These percentage shares were based on allocation procedures that NMFS developed over several years. The baseline percentage quota shares established in the 1999 FMP and contained in the Consolidated HMS FMP for fishing years beginning June 1, 1999, and continuing to the present are as follows: General category — 47.1 percent; Harpoon category — 3.9 percent; Purse Seine category — 18.6 percent; Angling category — 19.7 percent; Longline category — 8.1 percent; Trap category — 0.1 percent; and Reserve category — 2.5 percent.
        In the final 2007 fishing year BFT specifications (72 FR 33401, June 18, 2007), NMFS modified the baseline landings quota to 1,165.12 mt to implement the 2006 ICCAT recommendation and set the category subquotas per the allocations established in the Consolidated HMS FMP. The baseline quotas are as follows: General category — 548.8 mt; Harpoon category — 45.4 mt; Purse Seine category — 216.7 mt; Angling category — 229.5 mt; Longline category — 94.4 mt; and Trap category — 1.2 mt. An additional 29.1 mt is allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers.

        The baseline Angling category quota of 229.5 mt is further subdivided as follows: School BFT — 119 mt, with 45.8 mt to the northern area (north of 39°18′ N. latitude), 51.2 mt to the southern area (south of 39°18′ N. latitude), plus 22 mt held in reserve; large school/small medium BFT — 105.2 mt, with 49.6 mt to the northern area and 55.6 mt to the southern area; and large medium/giant BFT — 5.3 mt, with 1.8 mt to the northern area and 3.5 mt to the southern area. The 25-mt NED set-aside quota is in addition to the overall incidental longline quota to be subdivided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude). Thus, the baseline Longline category quota of 94.4 mt is subdivided as follows: 37.8 mt to pelagic longline vessels landing BFT north of 31° N. latitude and 56.6 mt to pelagic longline vessels landing BFT south of 31° N. latitude, with 25 mt set-aside for bycatch of BFT related to directed pelagic longline fisheries in the NED. NMFS accounts for landings under this additional quota separately from other landings under the Longline north subcategory.
        The baseline landings quota and category subquotas are effective until changed, for instance, as a result of a potential new ICCAT BFT TAC recommendation made at its upcoming 2008 Annual Meeting. Consistent with the Consolidated HMS FMP, NMFS will make underharvest and overharvest adjustments as necessary for the 2008 fishing year.
        2008 Quota Specifications
        NMFS anticipates that the 2007 fishing year underharvest will be substantial, based on current landings information and communication with BFT fishermen, and given the relatively low BFT harvest rates in recent years. However, the current ICCAT recommendation limits the amount of underharvest the United States may carry over for 2008 to 595.1 mt. In this action, NMFS proposes to carryover 595.1 mt of BFT underharvest from the 2007 fishing year to the 2008 fishing year quota, and distribute that underharvest in such a manner to: (1) Allow for potential transfer of a portion (up to 15 percent) of the 2008 U.S. quota to other ICCAT Contracting Parties and other domestic management objectives, if warranted; (2) ensure that the Longline category has sufficient quota to operate during the 2008 fishing year after the required accounting for BFT dead discards; and (3) provide the non-Longline quota categories a share of the remainder of the underharvest consistent with the allocation scheme established in the Consolidated HMS FMP.
        The United States must report dead discard estimates to ICCAT annually and account for this mortality as part of the specification calculation process. Accordingly, NMFS must account for BFT dead discards in setting the 2008 fishing year quota. NMFS proposes to assign a sufficient amount of any quota carryover (53.6 mt) to the Longline category so that after accounting for dead discards, sufficient quota is available to cover anticipated pelagic longline fishery landings during the 2008 fishing year. Providing sufficient landings quota would allow not only a full year fishery but avoid discards that could result if the fishery were closed due to the quota being met while longline vessels are fishing for other species.
        The best available preliminary estimate of dead discards for 2006 is 91.3 mt. This estimate is generated via extrapolation of pelagic longline logbook tallies by pooled observer data. Estimates of dead discards from other gear types and fishing sectors that do not use the pelagic longline vessel logbook are unavailable at this time and thus are not included in this calculation. Per the ICCAT recommendation, which specifies a U.S. quota that is inclusive of dead discards, and consistent with the regulations regarding annual quota adjustments at § 635.27(a)(10)(iv), NMFS would deduct the 91.3 mt of estimated dead discards from the amount of quota available for the Longline category for the 2008 fishing year. The best available information indicates that pelagic longline landings and dead discards for 2006 totaled 148 mt. The baseline longline category quota is 94.4 mt. Therefore, NMFS proposes to use 56.7 mt of BFT underharvest to cover the anticipated pelagic longline fishery landings during the 2008 fishing year.
        Additionally, NMFS would place 178.5 mt (i.e., 15 percent of 1,190.12 mt) of 2007 fishing year underharvest in the Reserve for potential ICCAT transfer purposes and other domestic management objectives. NMFS proposes to distribute the remainder of the quota carryover (363 mt) to the Angling, General, Harpoon, Purse Seine, and Trap categories consistent with their FMP allocations.
        In accordance with the 2006 ICCAT quota recommendation, the Consolidated HMS FMP percentage shares for each of the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS proposes initial quota specifications for the 2008 fishing year as follows: General category — 740.0 mt; Harpoon category — 61.2 mt; Purse Seine category — 292.2 mt; Angling category — 309.5 mt; Longline category — 56.7 mt; and Trap category — 1.6 mt. Additionally, 207.6 mt would be allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers.
        The proposed General category quota of 740.0 mt would be divided per the time period allocations established in the Consolidated FMP, i.e., 39.2 mt (5.3 percent) for the period beginning January 1, 2008, and ending January 31, 2008, 370.0 mt (50 percent) would be available in the period beginning June 1, 2008, and ending August 31, 2008; 196.1 mt (26.5 percent) would be available in the period beginning September 1, 2008, and ending September 30, 2008; 96.2 mt (13 percent) would be available in the period beginning October 1, 2008, and ending November 30, 2008; and 38.5 mt (5.2 percent) would be available in the period beginning December 1, 2008, and ending December 31, 2008.
        As discussed in the Consolidated HMS FMP, NMFS has received public comment expressing concern relating to the rollover of underharvest or overharvest from one subperiod to the next between fishing years. In the Consolidated FMP, NMFS considered three scenarios that could occur regarding disposition of any carryover that accrues during the December subperiod: (1) rollover of any underharvest or overharvest in full to the January subquota; (2) rollover of 5.3 percent of the underharvest or overharvest to the January subquota; and (3) no rollover of any underharvest or overharvest to the January subquota. However, the 2006 ICCAT recommendation to cap the carryover of underharvest from one year to the next and to account for dead discards annually has led to the underharvest allocation approach used in the 2007 fishing year and described above. NMFS intends to publish final specifications in advance of the 2008 fishing year, which would allow General category participants to plan fishing activities based on the adjusted January 2008 subquota.
        Based on the above proposed initial specifications and considerations regarding the school BFT fishery, the Angling category quota of 309.5 mt would be further subdivided as follows: School BFT — 119 mt, with 45.8 mt to the northern area (north of 39°18′ N. latitude), 51.2 mt to the southern area (south of 39°18′ N. latitude), plus 22 mt held in reserve; large school/small medium BFT — 183.4 mt, with 86.6 mt to the northern area and 96.8 mt to the southern area; and large medium/giant BFT — 7.1 mt, with 2.4 mt to the northern area and 4.7 mt to the southern area.
        The 25-mt NED set-aside quota is in addition to the overall incidental longline quota to be subdivided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude). Thus, the proposed Longline category quota of 56.7 mt would be subdivided as follows: 22.7 mt to pelagic longline vessels landing BFT north of 31° N. latitude and 34.0 mt to pelagic longline vessels landing BFT south of 31° N. latitude, with 25 mt set-aside for bycatch of BFT related to directed pelagic longline fisheries in the NED. NMFS would account for landings under this additional quota separately from other landings under the Longline north subcategory.

        Adjustments to the 2008 quotas and subquotas will be updated in the final rule. If complete information is not available when the final rule is published, NMFS may need to publish a quota adjustment in 2008.
        General Category Effort Controls
        In addition to time-period subquotas, NMFS also implements General category RFDs to extend the General category fishing season. The RFDs are designed to address the same issues addressed by time-period subquotas and provide additional fine scale inseason flexibility. For the 2008 fishing year, NMFS proposes a series of solid blocks of RFDs to extend the General category for as long as possible through the end of the 2008 fishing year. Therefore, NMFS proposes that persons aboard vessels permitted in the General category would be prohibited from fishing, including catch-and-release and tag-and-release, for BFT of all sizes on the following days: all Saturdays and Sundays from November 15, 2008, through December 31, 2008, plus November 27 and December 25, 2008, while the fishery is open.
        Finally, NMFS proposes to increase the General category retention limit to three BFT (73 inches (185.4 cm) or greater per vessel per day/trip) for the January and June-August subperiods. This action is intended to allow increased opportunities to harvest the General category quota during the period when catch rates have historically been slow, and to avoid accumulation of unused quota. This retention limit would be effective from January 1, 2008, through January 31, 2008 and from June 1, 2008, through August 31, 2008, unless adjusted with an inseason action, if necessary. NMFS may consider further retention limit adjustments after August 31, 2008, depending on several factors, including but not limited to catch rates and availability of quota.
        Angling Category Effort Controls
        NMFS proposes to increase the Angling category retention limit to one school BFT (27 inches (68.6 cm) to less than 47 inches (119.4 cm)), and two large school/small medium BFT (i.e., two BFT measuring 47 inches (119.4 cm) to less than 73 inches (185.4 cm)) per vessel per day/trip. This limit was set for the 2007 fishing year to be consistent with the 2006 ICCAT recommendation that limits tolerance for school BFT landings to 10 percent of the U.S. TAC, calculated on a four-year average, and to maximize use of the Angling category quota while avoiding overharvest of each of the Angling category subquotas. The action also would provide the same retention limit for both private and charter/headboat vessels. NMFS has received public comment on the 2007 quota and effort control specifications and during the 2007 fishing season that application of the same measures for both sectors works well. NMFS does not have information, from recreational BFT landings estimates or from public comment, that would support a change in the Angling category retention limit for 2008 from the one implemented for the 2007 fishing year.
        Classification
        NMFS has preliminarily determined that the proposed rule is consistent with the Magnuson-Stevens Act and the Atlantic Tunas Convention Act as well as with the Consolidated HMS FMP and recommendations of the International Commission for the Conservation of Atlantic Tunas.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

          The 2008 annual specifications are necessary to implement the 2006 International Commission for the Conservation of Atlantic Tunas (ICCAT) quota recommendation, as required by the Atlantic Tunas Convention Act, and to achieve domestic management objectives under the Magnuson-Stevens Act. The proposed rule would: (1) Establish initial quota specifications consistent with the BFT rebuilding program by adjusting the 2006 ICCAT-recommended quota as necessary for the 2008 fishing year; (2) establish General category effort controls, including restricted fishing days (RFDs) and initial retention limits; and (3) establish Angling category retention limits for the 2008 fishing season. This action was developed in accordance with the framework procedures set forth in the Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP), and is supported by the analytical documents prepared for the Consolidated HMS FMP and for the 2007 BFT specifications and effort controls.
          On June 18, 2007, the National Marine Fisheries Service (NMFS) published a final rule (72 FR 33401) that modified the baseline BFT landings quota to 1,165.12 mt to implement the 2006 ICCAT recommendation, set the category subquotas per the allocations established in the Consolidated HMS FMP, and set effort controls for the General and Angling categories for the 2007 fishing year (June 1 through December 31, 2007, pursuant to the change in fishing year to a calendar year as of January 2008 per the Consolidated HMS FMP). The final regulatory flexibility analysis (FRFA) prepared for the 2007 BFT specifications and effort controls indicated that there were 9,001 commercial Atlantic tunas or Atlantic HMS permit holders. This constitutes the best available information regarding the universe of permit holders as permits are still being renewed for the 2007 and 2008 fishing years. Because NMFS considers all the commercial Atlantic tunas and HMS permit holders to be small business entities, disproportionality of economic impacts between small and large business entities is not an issue.
          This proposed rule would not change the BFT baseline quota and category subquotas, or implement any new management measures not previously considered, and thus NMFS has determined that the impact on small entities affected by the proposed rule will not be significant. The 2006 ICCAT recommendation is in effect until changed, for instance, as a result of a new ICCAT BFT quota recommendation made at its November 2008 Annual Meeting. The domestic BFT baseline quotas and subquotas are codified in the regulations. Each proposed action in this rule is addressed separately below.

            Carryover of underharvest: The 2006 ICCAT recommendation limits carryover of BFT underharvest from the 2007 fishing year to the 2008 fishing year quota to 595.1 mt. NMFS proposes to carry over and to distribute 595.1 mt of BFT underharvest via the same method as used for the 2007 fishing year, and consistently with the ICCAT recommendation and with the Consolidated HMS FMP. The adjusted quota for the 2008 fishing year would be 2 percent higher than that for the 2007 fishing year based on the preliminary estimate of the amount of underharvest that NMFS would use to cover anticipated Longline category landings in 2008. Given that the U.S. quota has been underharvested by a substantial amount in the last few years, and is expected to be underharvested this year, this increase is not expected to have a significant impact on individual small entities. The annual specification process that this proposed rule follows, including application of underharvests and overharvests, is described in detail in Chapters 3 and 4 of the Consolidated HMS FMP.

            Effort controls: The proposed rule would increase the General category retention limit from the default level of 1 BFT to 3 BFT (73 inches or greater), the maximum allowed under the FMP. This action is the same as implemented for the 2007 fishing year and is intended to allow for maximum utilization of the BFT quota. An examination of landings data indicates that, while the retention limit increase would allow fishermen the flexibility to retain a second or third BFT if encountered, it is likely to have only slightly positive economic impacts on General category participants because success rates of catching a second or third BFT have been very low in recent years.

          NMFS currently does not have information that would support a change in the Angling category retention limit for 2008 from the one implemented for the 2007 fishing year. The proposed increase of the Angling category retention limit from the default of 1 fish (school, large school, or small medium BFT) to 3 fish (1 school BFT plus 2 large school or small medium BFT) is expected to provide increased opportunities to for recreational anglers without risking overharvest of the Angling category quota. To the extent that these increased opportunities may result in increased charter/headboat bookings, there may be slightly positive impacts on Charter/Headboat permit holders.
          The proposed RFDs are also the same as those implemented for the 2007 fishing year (with adjustments as needed for the 2008 calendar) and are designed to pace the entry of product to the market when landings rates are high. To the extent that RFDs have the potential to improve market prices, particularly for exported BFT, the implementation of RFDs may have slightly positive impacts, if needed, i.e., if not waived upon determination that they will not be needed, for instance if late season fishing rates are low. Regardless, the schedule of proposed RFDs is not expected to have a significant impact on small entities and is not expected to have any relative impact when compared with the 2007 fishing season.
          Because the economic impact of the carryover of underharvest and effort controls, to the extent that there are any, is expected to be generally positive, this rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

        Public Hearings
        The hearing locations are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Sarah McLaughlin at (978) 281-9279, at least 7 days prior to the meeting.

          Authority:
          16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

          Dated: September 26, 2007.
          William T. Hogarth
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. E7-19421 Filed 10-1-07; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [FRL-6854-2]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed deletion of the General Tire Landfill Site from the National Priorities List (NPL).

          SUMMARY:
          The EPA proposes to delete the General Tire Landfill Site (site) from the NPL and requests public comment on this action. The NPL constitutes appendix B to Part 300 of the National and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) as amended. The EPA has determined that the site poses no significant threat to public health or the environment, as defined by CERCLA, and therefore, no further remedial measures pursuant to CERCLA is warranted.
          We are publishing this rule without prior proposal because the EPA views this as a noncontroversial revision and anticipates no dissenting comments. A detailed rationale for this approval is set forth in the direct final rule. If no dissenting comments are received, no further activity is contemplated. If EPA receives dissenting comments, the direct final action will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting should do so at this time.

          DATES:
          Comments concerning this action must be received by September 28, 2000.

          ADDRESSES:
          Comments may be mailed to Nestor Young, Remedial Project Manager, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303. Comprehensive information on this site is available through the public docket which is available for viewing at the site information repositories at the following locations: U.S. EPA Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303; and the Graves County Library, 601 North 17 Street, Mayfield, Kentucky 42066, (270) 247-2911.

          FOR FURTHER INFORMATION CONTACT:

          Nestor Young, Remedial Project Manager, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303, (404) 562-8812, Fax (404) 562-8788, young.nestor@epa.gov.

        SUPPLEMENTARY INFORMATION:

        For additional information, see the Direct Final Action which is located in the Rules section of this Federal Register.

          Authority:
          33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp.; p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp.; p. 193.

          Dated: August 9, 2000.
          A. Stanley Meiburg,
          Acting Regional Administrator, EPA Region 4.

      [FR Doc. 00-21374 Filed 8-25-00; 8:45 am]
      BILLING CODE 6560-50-U


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 120924487-2487-01]
        RIN 0648-XC263
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications

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

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS proposes to implement the annual catch limit (ACL), harvest guideline (HG), annual catch target (ACT) and associated annual reference points for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast for the fishing season of July 1, 2012, through June 30, 2013. This rule is proposed according to the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed 2012-2013 ACL or maximum HG for Pacific mackerel is 40,514 metric tons (mt). The proposed ACT, which will be the directed fishing harvest target, is 30,386 mt. If the fishery attains the ACT, the directed fishery will close, reserving the difference between the ACL and ACT (10,128 mt) as a set aside for incidental landings in other CPS fisheries and other sources of mortality. This rule is intended to conserve and manage the Pacific mackerel stock off the U.S. West Coast.

          DATES:
          Comments must be received by January 7, 2013.

          ADDRESSES:
          You may submit comments on this document identified by NOAA-NMFS-2012-0215 by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2012-0215 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.
          • Mail: Submit written comments to Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
          • Fax: (562) 980-4047.

            Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.
          Copies of the report “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2011-12 Fishing Year” and the Environmental Assessment/Regulatory Impact Review for this action may be obtained from the Southwest Regional Office (see ADDRESSES).

          FOR FURTHER INFORMATION CONTACT:
          Joshua Lindsay, Southwest Region, NMFS, (562) 980-4034.

        SUPPLEMENTARY INFORMATION:
        During public meetings each year, the estimated biomass for Pacific mackerel is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species (CPS) Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), where the biomass and the status of the fisheries are reviewed and discussed. The biomass estimate is then presented to the Council along with the calculated overfishing limit (OFL) and available biological catch (ABC), annual catch limit (ACL) and harvest guideline (HG) and/or annual catch target (ACT) recommendations and comments from the Team, Subpanel and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS.
        The purpose of this proposed rule is to implement the 2012-2013 ACL, HG, ACT and other annual catch reference points, including OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass, for Pacific mackerel in the U.S. EEZ off the Pacific coast. (The EEZ off the Pacific Coast encompasses ocean waters seaward of the outer boundary of state waters, which is 3 nautical miles off the coast, out to a line 200 nautical miles from the coast.) The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific mackerel fishery based on the annual specification framework in the FMP. This framework includes a harvest control rule that determines the maximum HG, the primary management target for the fishery, for the current fishing season. The HG is based, in large part, on the current estimate of stock biomass. The harvest control rule in the CPS FMP is HG = [(Biomass−Cutoff) * Fraction * Distribution] with the parameters described as follows:
        1. Biomass. The estimated stock biomass of Pacific mackerel for the 2012-2013 management season is 211,126 mt.
        2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.
        3. Fraction. The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested.
        4. Distribution. The average portion (currently 70%) of the total Pacific mackerel biomass that is estimated to be in the U.S. EEZ off the Pacific coast, based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.
        At the June 2012 Council meeting, the Council recommended management measures for the Pacific mackerel fishery. These management measures were based on the 2011 full stock assessment, which estimated the biomass of Pacific mackerel to be 211,126 mt. The 2011 full stock assessment of Pacific mackerel was reviewed by a Stock Assessment Review Panel in May 2011, and was approved in June 2011 by the SSC as the best available science for use in management. Based on recommendations from the Council's SSC and other advisory bodies, the Council recommended and NOAA Fisheries (NMFS) is proposing, an OFL of 44,336 mt, an ABC of 42,375 mt, an ACL and maximum harvest guideline (HG) of 40,514 mt, and an ACT of 30,386 mt for the 2012-2013 Pacific mackerel fishing year. These catch specifications are based on the biomass estimate for Pacific mackerel and the control rules established in the CPS FMP.
        If the ACT is attained, the directed fishery will close, and the difference between the ACL and ACT (10,128 mt) will be reserved as a set aside for incidental landings in other CPS fisheries and other sources of mortality. In that event, incidental harvest measures will be in place for the remainder of the fishing year, including a 45 percent incidental catch allowance when Pacific mackerel are landed with other CPS. In other words, no more than 45 percent by weight of the CPS landed per trip may be Pacific mackerel, except that up to 1 mt of Pacific mackerel could be landed without landing any other CPS. Upon the fishery attaining the ACL/HG (40,514 mt), no vessels in CPS fisheries may retain Pacific mackerel. The purpose of the incidental set-aside and allowance of an incidental fishery is to allow for the restricted incidental landings of Pacific mackerel in other fisheries, particularly other CPS fisheries, when the directed fishery is closed to reduce potential discard of Pacific mackerel and allow for continued prosecution of other important CPS fisheries.

        The NMFS Southwest Regional Administrator will publish a notice in the Federal Register announcing the date of any closure to either directed or incidental fishing. Additionally, to ensure the regulated community is informed of any closure NMFS will also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

        Detailed information on the fishery and the stock assessment are found in the report “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2011-12 Fishing Year” (see ADDRESSES).
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

        These proposed specifications are exempt from review under Executive Order 12866.

        Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the reasons as follows:
        The purpose of this proposed rule is to implement the 2012-2013 annual specifications for Pacific mackerel in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an OFL, ABC, ACL and HG or ACT for the Pacific mackerel fishery based on the harvest control rules in the FMP. The specific harvest control rule is applied to the current stock biomass estimate to derive the annual HG, which is used to manage the commercial take of Pacific mackerel.
        The U.S. Small Business Administration defines small businesses engaged in fishing as those vessels with annual revenues of or below $4 million. The small entities that would be affected by the proposed action are the vessels that compose the West Coast CPS finfish fleet. Pacific mackerel harvest is one component of CPS fisheries off the U.S. West Coast, which primarily includes the fisheries for Pacific sardine, northern anchovy and market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N. latitude; Point Arena, California) of the fishery. Fifty-eight vessels are currently permitted in the Federal CPS limited entry fishery off California. The average annual per vessel revenue in 2011 for the West Coast CPS finfish fleet was well below $4 million; therefore, all of these vessels therefore are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner.
        The profitability of these vessels as a result of this proposed rule is based on the average Pacific mackerel ex-vessel price per mt. NMFS used average Pacific mackerel ex-vessel price per mt to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was limited or unavailable. For the 2011-2012 fishing year the HG was 40,514 mt and was divided into a directed fishery (or ACT) of 30,386 mt and an incidental fishery of 10,128 mt. Approximately 1,900 mt of this HG was harvested in 2011-2012 fishing season with an estimated ex-vessel value of $456,000 mt. Using these figures, the average 2011/2012 ex-vessel price per mt of Pacific mackerel was approximately $240.
        The proposed ACL/HG for the 2012/2013 Pacific mackerel fishing season is 40,514 mt, with a directed fishing harvest target or ACT of 30,386 mt. This season's directed fishing target is the same as the previous year. If the fleet were to take the entire 2012-2013 ACT, and assuming a coastwide average ex-vessel price per mt of $220 (average of 2010 and 2011 ex-vessel), the potential revenue to the fleet would be approximately $6.6 million. However, this result will depend greatly on market forces within the fishery, and on the regional availability of the resource to the fleet and the fleets' ability to find schools of Pacific mackerel. The annual average U.S. Pacific mackerel harvest from 2001 to 2010 is approximately 4,500 mt, and over the last 10 years landings have averaged approximately 6,000 mt without exceeding 10,000 mt. As a result, it is unlikely that the ACT proposed in this rule will limit the potential profitability of the fleet from Pacific mackerel. Accordingly, vessels' profits are not expected to be altered as a result of this rule as it relates to recent catches in the fishery and the previous season's regulation.
        Based on the disproportionality and profitability analysis above, this rule, if adopted, will not have a significant economic impact on a substantial number of these small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
        There are no reporting, record-keeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.
        This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.

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

          Dated: December 3, 2012.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2012-29621 Filed 12-6-12; 8:45 am]
      BILLING CODE 3510-22-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 271
        [EPA-R08-RCRA-2009-0212; FRL-8895-6]
        Montana: Final Authorization of State Hazardous Waste Management Program Revisions

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The State of Montana has applied to EPA for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant final authorization to the hazardous waste program changes submitted by the State of Montana. In the “Rules and Regulations” section of this Federal Register, EPA is authorizing the changes in an immediate final rule. EPA did not propose the rule prior to issuing the immediate final rule because we believe this action is not controversial and do not expect comments that oppose it. We have explained the reasons for this authorization in the preamble to the immediate final rule. Unless we get written comments that oppose this authorization during the comment period, the immediate final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we receive comments that oppose this action, we will publish a document in the Federal Register withdrawing this rule before it takes effect. EPA will then address public comments in a later final rule based on this proposal. Any parties interested in commenting on these actions must do so at this time. EPA may not provide further opportunity for comment.

          DATES:
          Comments must be received on or before May 27, 2009.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2009-0212 by one of the following methods:
          • Federal eRulemaking Portal:
            http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          • E-mail:
            cosentini.christina@epa.gov.

          • Fax: (303) 312-6341.
          • Mail: Send written comments to Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
          • Hand Delivery or Courier: Deliver your comments to Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify the business hours. Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-2009-0212. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider CBI or otherwise protected through http://www.regulations.gov, or e-mail. The Federal Web site http://www.regulations.gov is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA rather than through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information may not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at: EPA Region 8, from 9 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, Colorado, contact: Christina Cosentini, phone number (303) 312-6231, or the Montana Department of Environmental Quality, from 9 a.m. to 4 p.m., Metcalf Building, 1520 East Sixth Avenue, Helena, Montana 59620, contact: Robert Martin, phone number (406) 444-4194.

          FOR FURTHER INFORMATION CONTACT:
          Christina Cosentini, 303-312-6231, cosentini.christina@epa.gov or Robert Martin, 406-444-4194, rmartin@mt.gov.

        SUPPLEMENTARY INFORMATION:

        For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this Federal Register.

          Dated: April 8, 2009.
          Stephen S. Tuber,
          Acting Regional Administrator, Region 8.

      [FR Doc. E9-9541 Filed 4-24-09; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 19, 42, and 52
        [FAR Case 2019-004, Docket No. FAR-2019-0030, Sequence No. 1]
        RIN 9000-AN87
        Federal Acquisition Regulation: Good Faith in Small Business Subcontracting

          AGENCY:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2017, which requires examples of failure to make good faith efforts to comply with a small business subcontracting plan.

          DATES:
          Interested parties should submit written comments at the address shown below on or before August 3, 2020 to be considered in the formation of the final rule.

          ADDRESSES:
          Submit comments in response to FAR Case 2019-004 to https://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FAR Case 2019-004”. Select the link “Comment Now” that corresponds with FAR Case 2019-004. Follow the instructions provided at the “Comment Now” screen. Please include your name, company name (if any), and “FAR Case 2019-004” on your attached document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

            Instructions: Please submit comments only and cite FAR Case 2019-004 in all correspondence related to this case. Comments received generally will be posted without change to https://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission to verify posting.

          FOR FURTHER INFORMATION CONTACT:

          Ms. Malissa Jones, Procurement Analyst, at (703)605-2815, or by email at malissa.jones@gsa.gov, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or GSARegSec@gsa.gov. Please cite FAR Case 2019-004.

        SUPPLEMENTARY INFORMATION:

        I. Background
        DoD, GSA, and NASA are proposing to amend the FAR to implement section 1821 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (15 U.S.C 637 note, Pub. L. 114-328). Section 1821 requires the Small Business Administration (SBA) to amend its regulations to provide examples of activities that would be considered a failure to make a good faith effort to comply with a small business subcontracting plan. SBA issued a rule at 84 FR 65647, November 29, 2019, to implement section 1821 of the NDAA for FY 2017. In its rule, SBA amends 13 CFR 125.3(d)(3) to provide guidance on evaluating whether the prime contractor made a good faith effort to comply with its small business subcontracting plan and a list of examples of activities reflective of a failure to make a good faith effort.
        Additionally, SBA revised 13 CFR 125.3(c)(1)(iv) to require that prime contractors with commercial subcontracting plans include indirect costs in their subcontracting goals. Other than small business concerns that have a commercial subcontracting plan report on performance through a summary subcontract report (SSR). SBA's regulations currently require that contractors using a commercial subcontracting plan must include indirect costs in their SSRs, but do not require these contractors to include indirect costs in their subcontracting goals, which leads to inconsistencies when comparing the data reported in the SSR to the goals in the commercial subcontracting plan.
        Small business subcontracting plans are required from large prime contractors when a contract is expected to exceed $700,000 ($1.5 million for construction) and has subcontracting possibilities. FAR 19.704 lists the elements of the plan, which include the contractor's goals for subcontracting to small business concerns and a description of the efforts the contractor will make to ensure that small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns have an equitable opportunity to compete for subcontracts. Failure to make a good faith effort to comply with the plan may result in the assessment of liquidated damages per FAR 52.219-16, Liquidated Damages—Subcontracting Plan.
        II. Discussion and Analysis
        The proposed changes to the FAR are summarized in the following paragraphs.
        A. Inclusion of Indirect Costs in Commercial Plans
        Section 19.704, Subcontracting plan requirements, and the clause at 52.219-9, Small Business Subcontracting Plan, are amended to require that all indirect costs, with certain exceptions, are included in commercial plans and SSRs.
        B. Compliance With the Subcontracting Plan

        Section 19.705-7, Liquidated damages, is renamed “Compliance with the subcontracting plan” and is reorganized, with paragraph headings added to make this section easier to read and understand. This section includes examples of a good faith effort, and examples of a failure to make a good faith effort to comply with the subcontracting plan, including SBA's examples at 13 CFR 125.3(d). References to the examples in 19.705-7 are added in other sections in subparts 19.7 and 42.15. A reference to SBA's examples at 13 CFR 125.3(d), now located at FAR 19.705-7, is added in the clause at 52.219-16.
        III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items
        This rule proposes to implement a statutory requirement to provide examples of activities that would be considered a failure to make a good faith effort to comply with a small business subcontracting plan. Because section 8(d) of the Small Business Act (15 U.S.C. 637(d)) requires subcontracting plans only for acquisitions valued above $700,000 ($1.5 million for construction contracts), the requirements of section 1821 of the NDAA for FY 2017 (15 U.S.C 637 note, Pub. L. 114-328) would not apply to contracts at or below the SAT. The FAR Council intends to apply the requirements of section 1821 to contracts for the acquisition of commercial items. Revisions to the clauses at FAR 52.219-9 and 52.219-16 are proposed by this rule. Discussion of these preliminary determinations is set forth below. The FAR Council will consider public feedback before making a final determination on the scope of the final rule.
        A. Applicability to Contracts for the Acquisition of Commercial Items
        Pursuant to 41 U.S.C. 1906, acquisitions of commercial items (other than acquisitions of COTS items, which are addressed in 41 U.S.C. 1907) are exempt from a provision of law unless the law (i) contains criminal or civil penalties; (ii) specifically refers to 41 U.S.C. 1906 and states that the law applies to acquisitions of commercial items; or (iii) the FAR Council makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercial items from the provision of law. If none of these conditions are met, the FAR is required to include the statutory requirement(s) on a list of provisions of law that are inapplicable to the acquisition of commercial items.
        The purpose of this rule is to implement section 1821 of the NDAA for FY 2017 and SBA's implementing regulations. Section 1821 requires SBA to provide examples of activities that would be considered a failure to make a good faith effort to comply with a small business subcontracting plan. Both the FAR and SBA's regulations require contractors with small business subcontracting plans, including commercial plans, to make a good faith effort to comply with the plans. SBA's rule did not exempt the acquisition of commercial items.
        Section 1821 furthers the Administration's goal of supporting small business. It advances the interests of small business subcontractors by promoting good faith efforts by large prime contractors to find and use small business concerns as subcontractors, thereby providing valuable opportunities for small business concerns.
        For these reasons, it is in the best interest of the Federal Government to apply the requirements of this rule to the acquisition of commercial items.
        B. Applicability to Contracts for the Acquisition of COTS Items

        Pursuant to 41 U.S.C. 1907, acquisitions of COTS items will be exempt from a provision of law unless the law (i) contains criminal or civil penalties; (ii) specifically refers to 41 U.S.C. 1907 and states that the law applies to acquisitions of COTS items; (iii) concerns authorities or responsibilities under the Small Business Act (15 U.S.C. 644) or bid protest procedures developed under the authority of 31 U.S.C. 3551 et seq., 10 U.S.C. 2305(e) and (f), or 41 U.S.C. 3706 and 3707; or (iv) the Administrator for Federal Procurement Policy makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of COTS items from the provision of law. If none of these conditions are met, the FAR is required to include the statutory requirement(s) on a list of provisions of law that are inapplicable to the acquisition of COTS items.
        The purpose of this rule is to implement section 1821 of the NDAA for FY 2017 and SBA's implementing regulations. Section 1821 requires SBA to provide examples of activities that would be considered a failure to make a good faith effort to comply with a small business subcontracting plan. Both the FAR and SBA's regulations require contractors with small business subcontracting plans, including commercial plans, to make a good faith effort to comply with the plans. SBA's rule did not exempt the acquisition of COTS items.
        Section 1821 furthers the Administration's goal of supporting small business. It advances the interests of small business subcontractors by promoting good faith efforts by large prime contractors to find and use small business concerns as subcontractors, thereby providing valuable opportunities for small business concerns.
        For these reasons, it is in the best interest of the Federal Government to apply the requirements of this rule to the acquisition of COTS items.
        IV. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        V. Executive Order 13771
        This proposed rule is not expected to be subject to E.O. 13771, Reducing Regulation and controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.
        VI. Regulatory Flexibility Act

        DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis (IRFA) has been performed and is summarized as follows:

          DoD, GSA, and NASA are proposing to amend the FAR to implement section 1821 of the NDAA for FY 2017 (Pub. L. 114-328). Section 1821 amends the Small Business Act (15 U.S.C 637 note), to require SBA to provide examples of activities that would be considered a failure to make a good faith effort to comply with the goals and other elements in small business subcontracting plans. Additionally, SBA clarified in its regulations that large prime contractors with commercial subcontracting plans must include indirect costs in the commercial subcontracting plan goals.
          The objective of this proposed rule is to implement section 1821 of the NDAA for FY 2017 and SBA's implementing regulations, which provide examples of activities that would be considered a failure to make a good faith effort to comply with a small business subcontracting plan. SBA has amended 13 CFR 125.3(d)(3) to provide guidance on evaluating whether the prime contractor made a good faith effort to comply with its small business subcontracting plan and a list of examples of activities reflective of a failure to make a good faith effort.
          Additionally, SBA has revised 13 CFR 125.3(c)(1)(iv) to require that large prime contractors with commercial subcontracting plans include indirect costs in the commercial subcontracting plan goals. Large prime contractors that have a commercial subcontracting plan report on performance through a SSR in the Electronic Subcontracting Reporting System (eSRS). SBA's regulations and the FAR currently require that a contractor using a commercial subcontracting plan include indirect costs in its SSR. However, these regulations do not require contractors to include indirect costs in their commercial subcontracting plan goals, which leads to inconsistencies when comparing the data reported in the SSR to the goals in the commercial subcontracting plan.
          This rule may have a positive economic impact on any small business entity that wishes to participate in Federal procurement as a subcontractor. By providing examples of a failure to make a good faith effort to comply with small business subcontracting plans, contracting officers can determine more easily whether large prime contractors have made a good faith effort to comply with their subcontracting plans and hold large prime contractors accountable for failing to make a good faith effort to comply with their subcontracting plans. More diligence in developing and meeting subcontracting goals on the part of large prime contractors could have a positive impact of giving small business concerns more opportunity to subcontract on Federal contracts. Data from the Federal Procurement Data System indicate that in FY 2018 there were 2,397 entities with 15,758 awards that required small business subcontracting plans. According to the Federal Funding Accountability and Transparency Act Subaward Reporting System (FSRS), there are 19,596 unique entities who are subcontractors. Approximately 80 percent of the entities registered in the System for Award Management are small entities. Therefore, we estimate that 80 percent (15,677) of the subcontractors in FSRS are small entities. These small entities may benefit from this rule.
          This proposed rule will require a large prime contractor with a commercial subcontracting plan to include indirect costs in its subcontracting goals. The benefit of requiring that indirect costs be included in subcontracting goals in commercial subcontracting plans is that it will increase the small business subcontracting goal and thus increase the amount of funds the prime contractor will subcontract to small business concerns, providing more opportunities for subcontract awards to small business concerns.
          This proposed rule does not include any new reporting, recordkeeping or other compliance requirements for small entities.
          This proposed rule does not duplicate, overlap, or conflict with any other Federal rules.
          There are no known significant alternative approaches that would accomplish the stated objectives of the applicable statute.

        The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the SBA. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit comments separately and should cite 5 U.S.C. 610 (FAR case 2019-004) in correspondence.
        VII. Paperwork Reduction Act
        The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this rule; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0007, Subcontracting Plans.

          List of Subjects in 48 CFR Parts 19, 42, and 52
          Government procurement.

          William F. Clark,
          Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

        Therefore, for the reasons listed in the preamble, DoD, GSA, and NASA are proposing to amend 48 CFR parts 19, 42, and 52 to read as follows:
        1. The authority citation for 48 CFR parts 19, 42, and 52 continues to read as follows:

          Authority:
           40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

          PART 19—SMALL BUSINESS PROGRAMS

        2. Amend section 19.704 by—
        a. Removing from paragraph (a)(6) “subcontracting goals” and adding “subcontracting goals (for commercial plans, see paragraph (d) of this section)” in its place;
        b. Revising the introductory text of paragraph (d); and
        c. Removing from paragraph (d)(4) “one SSR” and adding “one SSR that includes all indirect costs, except as described in paragraph (d) of this section,” in its place.
        The revision reads as follows:

          19.704
           Subcontracting plan requirements.

          (d) A commercial plan (as defined in 19.701) is the preferred type of subcontracting plan for contractors furnishing commercial items. The subcontracting goals established for a commercial plan shall include all indirect costs with the exception of those such as the following: Employee salaries and benefits; payments for petty cash; depreciation; interest; income taxes; property taxes; lease payments; bank fees; fines, claims, and dues; original equipment manufacturer relationships during warranty periods (negotiated up front with the product); utilities and other services purchased from a municipality or an entity solely authorized by the municipality to provide those services in a particular geographical region; and philanthropic contributions. Once a contractor's commercial plan has been approved, the Government shall not require another subcontracting plan from the same contractor while the plan remains in effect, as long as the product or service being provided by the contractor continues to meet the definition of a commercial item. The contractor shall—

          19.705-4
          [Amended]

        3. Amend section 19.705-4 by removing from paragraph (c), in the fourth sentence, “faith effort” and adding “faith effort (see 19.705-7)”.
        4. Amend section 19.705-6 by revising paragraphs (g)(1), (h), and (i) to read as follows:

          19.705-6
           Postaward responsibilities of the contracting officer.

          (g) * * *
          (1) Assess whether the prime contractor made a good faith effort to comply with its small business subcontracting plan. See 19.705-7(b) for more information on the determination of good faith effort.

          (h) Initiate action to assess liquidated damages in accordance with 19.705-7 upon a recommendation by the administrative contracting officer, if one is assigned, or receipt of other reliable evidence to indicate that assessing liquidated damages is warranted.

          (i) Take action to enforce the terms of the contract upon receipt of a notice from the contract administration office under 19.706(f).

        5. Amend section 19.705-7 by—
         a. Revising the section heading;
         b. Adding a paragraph heading to paragraph (a);
         c. Removing from paragraph (a) “small disadvantaged business” and adding “small disadvantaged business,” in its place;
        d. Revising paragraphs (b), (c), (d), and (e);
         e. Adding a paragraph heading to the introductory text of paragraph (f);
         f. Removing paragraph (g); and
         g. Redesignating paragraph (h) as paragraph (f)(5).
        The revisions and additions read as follows:

          19.705-7
           Compliance with the subcontracting plan.
          (a) General. * * *
          (b) Determination of good faith effort. (1) In determining whether a contractor failed to make a good faith effort to comply with its subcontracting plan, a contracting officer must look to the totality of the contractor's actions, consistent with the information and assurances provided in its plan. The fact that the contractor failed to meet its subcontracting goals does not, in and of itself, constitute a failure to make a good faith effort (see 19.701). For example, notwithstanding a contractor's diligent effort to identify and solicit offers from any of the small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns, factors such as unavailability of anticipated sources or unreasonable prices may frustrate achievement of the contractor's subcontracting goals. The contracting officer may consider any of the following, though not all inclusive, to be indicators of a good faith effort:
          (i) Breaking out work to be subcontracted into economically feasible units, as appropriate, to facilitate small business participation.
          (ii) Conducting market research to identify potential small business subcontractors through all reasonable means, such as searching SAM, posting notices or solicitations on SBA's SUBNet, participating in business matchmaking events, and attending preproposal conferences.
          (iii) Soliciting small business concerns as early in the acquisition process as practicable to allow them sufficient time to submit a timely offer for the subcontract.
          (iv) Providing interested small businesses with adequate and timely information about plans, specifications, and requirements for performance of the prime contract to assist them in submitting a timely offer for the subcontract.
          (v) Negotiating in good faith with interested small businesses.
          (vi) Directing small businesses that need additional assistance to SBA.
          (vii) Assisting interested small businesses in obtaining bonding, lines of credit, required insurance, necessary equipment, supplies, materials, or services.
          (viii) Utilizing the available services of small business associations; local, state, and Federal small business assistance offices; and other organizations.
          (ix) Participating in a formal mentor-protégé program with one or more small-business protégés that results in developmental assistance to the protégés.
          (x) Although failing to meet the subcontracting goal in one socioeconomic category, exceeding the goal by an equal or greater amount in one or more of the other categories.
          (xi) Fulfilling all of the requirements of the subcontracting plan.
          (2) When considered in the context of the contractor's total effort in accordance with its plan, the contracting officer may consider any of the following, though not all inclusive, to be indicators of a failure to make a good faith effort:
          (i) Failure to attempt through market research to identify, contact, solicit, or consider for contract award small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, or women-owned small business concerns, through all reasonable means including outreach, industry days, or the use of Federal systems such as SBA's Dynamic Small Business Search or SUBNet systems.
          (ii) Failure to designate and maintain a company official to administer the subcontracting program and monitor and enforce compliance with the plan.
          (iii) Failure to submit an acceptable ISR, or the SSR, using the eSRS, or as provided in agency regulations, by the report due dates specified in 52.219-9, Small Business Subcontracting Plan.
          (iv) Failure to maintain records or otherwise demonstrate procedures adopted to comply with the plan including subcontracting flowdown requirements.
          (v) Adoption of company policies or documented procedures that have as their objectives the frustration of the objectives of the plan.
          (vi) Failure to pay small business subcontractors in accordance with the terms of the contract with the prime contractor;
          (vii) Failure to correct substantiated findings from Federal subcontracting compliance reviews or participate in subcontracting plan management training offered by the Government;
          (viii) Failure to provide the contracting officer with a written explanation if the contractor fails to acquire articles, equipment, supplies, services, or materials or obtain the performance of construction work as described in 19.704(a)(12).
          (ix) Falsifying records of subcontract awards to small business concerns.
          (c) Documentation of good faith effort. If, at completion of the basic contract or any option, or in the case of a commercial plan, at the close of the fiscal year for which the plan is applicable, a contractor has failed to comply with the requirements of its subcontracting plan, which includes meeting its subcontracting goals, the contracting officer shall review all available information for an indication that the contractor has not made a good faith effort to comply with the plan. If no such indication is found, the contracting officer shall document the file accordingly.
          (d) Notice of failure to make a good faith effort. If the contracting officer decides in accordance with paragraph (b) of this section that the contractor failed to make a good faith effort to comply with its subcontracting plan, the contracting officer shall give the contractor written notice in accordance with 52.219-16, Liquidated Damages—Subcontracting Plan, specifying the material breach, which may be included in the contractor's past performance information, advising the contractor of the possibility that the contractor may have to pay to the Government liquidated damages, and providing a period of 15 working days (or longer period as necessary) within which to respond. The notice shall give the contractor an opportunity to demonstrate what good faith efforts have been made before the contracting officer issues the final decision, and shall further state that failure of the contractor to respond may be taken as an admission that no valid explanation exists.
          (e) Payment of liquidated damages. (1) If, after consideration of all the pertinent data, the contracting officer finds that the contractor failed to make a good faith effort to comply with its subcontracting plan, the contracting officer shall issue a final decision to the contractor to that effect and require the payment of liquidated damages in an amount stated. The contracting officer's final decision shall state that the contractor has the right to appeal under the clause in the contract entitled Disputes. Calculations and procedures shall be in accordance with 52.219-16, Liquidated Damages—Subcontracting Plan.
          (2) The amount of damages attributable to the contractor's failure to comply shall be an amount equal to the actual dollar amount by which the contractor failed to achieve each subcontracting goal. For calculations for commercial plans see paragraph (f) of this section.
          (3) Liquidated damages shall be in addition to any other remedies that the Government may have.
          (f) Commercial plans. * * *

          19.706
           [Amended]

         6. Amend section 19.706 by removing from paragraph (f) “subcontracting plan” and adding “subcontracting plan (see 19.705-7(b) for more information on the determination of good faith effort)”.

          PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES

        7. Amend section 42.1501 by redesignating paragraphs (a)(5) thru (a)(7) as paragraphs (a)(6) thru (a)(8) and adding new paragraph (a)(5) to read as follows:

          42.1501
           General.
          (a) * * *
          (5) Complying with the requirements of the small business subcontracting plan (see 19.705-7(b));

          PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        8. Amend section 52.212-5 by revising the date of the clause and paragraphs (b)(17)(i), (b)(17)(v), and (b)(20) to read as follows:

          52.212-5
           Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items.

            Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items (DATE)

            (b) * * *
            __(17)(i) 52.219-9, Small Business Subcontracting Plan (DATE) (15 U.S.C. 637(d)(4)).

            __(v) Alternate IV (DATE) of 52.219-9.

            __(20) 52.219-16, Liquidated Damages—Subcontracting Plan (DATE) (15 U.S.C. 637(d)(4)(F)(i)).

        9. Amend section 52.219-9 by—
         a. Revising the date of the clause;
         b. Removing from paragraph (d)(2)(i) “subcontracts” and adding “subcontracts, including all indirect costs except as described in paragraph (g) of this clause,” in its place;
         c. Adding a new fifth sentence to paragraph (g);
         d. Amending alternate IV by revising the date of the clause and paragraph (d)(2)(i).
        The revisions and additions read as follows:

          52.219-9
           Small Business Subcontracting Plan.

            Small Business Subcontracting Plan (DATE)

            (g) * * * A Contractor authorized to use a commercial subcontracting plan shall include in its subcontracting goals and in its SSR all indirect costs, with the exception of those such as the following: Employee salaries and benefits; payments for petty cash; depreciation; interest; income taxes; property taxes; lease payments; bank fees; fines, claims, and dues; original equipment manufacturer relationships during warranty periods (negotiated up front with the product); utilities and other services purchased from a municipality or an entity solely authorized by the municipality to provide those services in a particular geographical region; and philanthropic contributions. * * *

              Alternate IV (DATE). * * *
            (d) * * *
            (2) * * *
            (i) Total dollars planned to be subcontracted for an individual subcontracting plan; or the Offeror's total projected sales, expressed in dollars, and the total value of projected subcontracts to support the sales for a commercial plan, including all indirect costs, with the exception of those such as the following: Employee salaries and benefits; payments for petty cash; depreciation; interest; income taxes; property taxes; lease payments; bank fees; fines, claims, and dues; original equipment manufacturer relationships during warranty periods (negotiated up front with the product); utilities and other services purchased from a municipality or an entity solely authorized by the municipality to provide those services in a particular geographical region; and philanthropic contributions;

        10. Amend 52.219-16 by revising the date of the clause and removing from paragraph (b) “plan, established” and adding “plan (see 19.705-7), established” in its place.
        The revision reads as follows:

          52.219-16
           Liquidated Damages—Subcontracting Plan.

            Liquidated Damages—Subcontracting Plan (DATE)

      [FR Doc. 2020-10511 Filed 6-2-20; 8:45 am]
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