        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 031009255-3255-01; I.D. 092503A]
        RIN 0648-AQ88
        Fisheries of the Exclusive Economic Zone Off Alaska; Revision to the Management of “Other Species” Community Development Quota

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          This proposed rule would modify the management of the “other species” Community Development Quota (CDQ) reserve by eliminating specific allocations of “other species” to individual CDQ managing organizations (CDQ groups) and instead allow NMFS to manage the “other species” CDQ reserve with the general limitations used to manage the catch of non-CDQ groundfish in the Bering Sea and Aleutian Islands management area (BSAI).  This action also would eliminate the CDQ non-specific reserve and make other changes to improve the clarity and consistency of CDQ Program regulations.  This action is necessary to improve NMFS' ability to effectively administer the CDQ Program.  It is intended to further the goals and objectives of the North Pacific Fishery Management Council (Council) with respect to this program.

          DATES:
           Comments must be received by November 6, 2003.

          ADDRESSES:
           Comments may be sent to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn:   Lori Durall, or delivered to room 420 of the Federal Building, 709 West 9th Street, Juneau, AK.  Comments may also be sent via facsimile (fax) to 907-586-7557.  Comments will not be accepted if submitted via e-mail or Internet.  Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from the same address.

          FOR FURTHER INFORMATION CONTACT:
           Obren Davis, 907-586-7228 or Obren.Davis@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The groundfish fisheries in the exclusive economic zone (EEZ) of the BSAI are managed under the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP).  The Council prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.
        Management Background and Need for Action
        The CDQ Program allocates groundfish, prohibited species, crab, and Pacific halibut to six CDQ groups representing 65 western Alaska communities.  With limited exceptions, NMFS allocates 7.5 percent of each BSAI groundfish Total Allowable Catch (TAC) category to a CDQ reserve for that TAC category.  Each CDQ reserve is further apportioned among the six CDQ groups.  The purpose of the CDQ Program is to provide the means for starting or supporting commercial fisheries business activities that will result in ongoing, regionally based, fisheries-related economic benefits for residents of participating communities.  CDQ groups use the proceeds derived from the harvest of CDQ allocations to fund a variety of fisheries-related projects and provide training and educational opportunities to residents of participating  communities.
        The CDQ Program began in 1992 with the allocation of 7.5 percent of the BSAI pollock TAC.  Allocations of sablefish and halibut were added in 1995.  The Council recommended expanding the CDQ Program in 1995 and NMFS implemented the multispecies CDQ Program in 1998, combining the existing pollock, halibut, and fixed gear sablefish CDQ fisheries with additional allocations of a variety of crab, groundfish, and prohibited species.  The pollock CDQ allocation increased to 10 percent of the BSAI pollock TAC in 1999 under the American Fisheries Act (Public Law 105-277).  Management of crab CDQ is delegated to the State of Alaska and will not be mentioned hereafter.

        As part of its original design, the multispecies CDQ Program required a higher level of accountability of allocated species than any other Alaska groundfish fishery that NMFS was then managing.  Other limited access programs in place at the time, including the existing CDQ fisheries and the fixed gear halibut and sablefish Individual Fishing Quota fisheries, were target fishery-based programs that did not include individual quotas for all TAC and prohibited species catch (PSC) species that were caught in those fisheries.  In other words, the catch of target species in these programs was not constrained by any additional limits on the catch of incidentally caught or prohibited species.
        Under the multispecies CDQ Program, each CDQ group is allocated a percentage of the groundfish CDQ and prohibited species quota (PSQ) reserves and each group is prohibited from exceeding any of its CDQ allocations or halibut PSQ allocation.  Allocation of the CDQ and PSQ reserves among the six CDQ groups results in about 200 different quotas that have to be managed at the CDQ group level.  CDQ groups have identified the strict accounting requirements and prohibition against exceeding a specific CDQ,  particularly in regards to the “other species” CDQ species category, as unnecessarily constraining to the complete prosecution of their target fisheries.  The “other species” complex is comprised of various species of sharks, skates, sculpins, and octopi.  These species are incidentally caught with CDQ target species such as pollock, Pacific cod, sablefish, Atka mackerel, and a variety of flatfish species.  Exceeding any CDQ allocation results in an enforcement action against a CDQ group, which may include monetary or other penalties.  To avoid exceeding their “other species” allocations, CDQ groups may have to modify their fishing practices by fishing in new or different locations or ceasing to fish for some target species.  Failing to completely harvest CDQ target species allocations has an  economic impact on CDQ groups and the CDQ communities when revenues are foregone, which may adversely affect the accomplishment of projects intended to foster economic development in western Alaska communities.
        The management of the “other species” category has differed from almost every other groundfish CDQ species category since the inception of the groundfish CDQ Program.  During the development of the program, NMFS recognized that the catch of some non-target species, such as arrowtooth flounder and “other species,” could prevent CDQ groups from fully harvesting their allocations of CDQ target species.  To address this issue, NMFS created the CDQ non-specific reserve.  This reserve provides an in-season management tool that CDQ groups may use to augment the initial allocations of arrowtooth flounder and “other species” CDQ that they receive each year.  It was developed to provide CDQ groups with some degree of flexibility to avoid having their target fisheries constrained by the catch of incidentally caught species such as “other species.”  In brief, the CDQ non-specific reserve allows a group to convert up to 15 percent of its annual allocation of arrowtooth flounder CDQ into “other species” CDQ or vice versa.  The utility of this reserve is directly affected by the size of the arrowtooth flounder and “other species” annual TACs.  For example, the smaller the arrowtooth flounder TAC, the smaller the arrowtooth flounder CDQ reserve and subsequent CDQ allocations, which in turn yields smaller contributions to the CDQ non-specific reserve.
        The CDQ non-specific reserve appeared to function as originally envisioned during the first few years of the groundfish CDQ Program.  However, this reserve has not provided CDQ groups with the catch accounting flexibility expected of it due to unforeseen factors associated with the annual BSAI groundfish specifications process.  CDQ groups identified shortcomings with the CDQ non-specific reserve in 2001.  The Council requested that NMFS increase the amount of arrowtooth flounder apportioned to each group's CDQ non-specific reserve from 15 percent to 50 percent in both 2001 and 2002 in order to provide CDQ groups with additional amounts of “other species” CDQ in those years.  NMFS implemented these changes via emergency rules associated with the annual BSAI groundfish specifications for each of those years.  This augmented the amount of “other species” available to CDQ groups in 2001 and 2002.  In 2003, the amount of arrowtooth flounder apportioned to each CDQ group's non-specific reserve was not increased.  Also, the arrowtooth flounder TAC decreased from 16,000 mt in 2002 to 12,000 mt in 2003.  The combination of these two events decreased the amount of arrowtooth flounder that CDQ groups have available to release from their non-specific reserve to their “other species” allocations in 2003.
        CDQ group representatives requested relief from the current “other species” management structure from the Council at its February 2003 meeting.  In turn, the Council requested that NMFS prepare an analysis addressing the management of “other species” CDQ at the CDQ reserve level, rather than allocating the “other species” CDQ reserve to individual CDQ groups.  Neither the Council nor NMFS considers the modification of percentage contributions to the CDQ non-specific reserve to be a viable, long-term solution that would address issues associated with the non-specific reserve or the amount of “other species” available to CDQ groups.

        As described in the EA/RIR/IRFA prepared for this action (see ADDRESSES), neither the “other species” CDQ reserve nor individual allocations of “other species” have been exceeded by CDQ groups in the last several years.  CDQ groups also have not caught all of their target species allocations, with the exception of pollock.  However, CDQ groups have informed NMFS that they consider the incomplete harvest of some target species in the past, such as Pacific cod, to be directly related to efforts made to minimize the catch of “other species.”  They believe that the current prohibition against exceeding their individual “other species” CDQ allocations has forced them to alter standard fishing practices and constrained them from fully prosecuting their CDQ target species allocations.  NMFS cannot corroborate that the current management of the “other species” CDQ category is the primary reason that CDQ groups have not fully harvested some CDQ target species in recent years.  However, NMFS estimates that an insufficient amount of “other species” CDQ is available to meet the potential catch of “other species” if all of the CDQ target fisheries were fully prosecuted during a year.  Were CDQ groups to fully harvest each of their CDQ target allocations, they would likely exceed the amount available in the annual “other species” CDQ reserve.
        In April 2003, following review of the EA/RIR/IRFA prepared for this action and public testimony, the Council took final action and recommended a regulatory amendment to modify how the “other species” CDQ reserve is allocated and managed.  Specifically, the Council requested that this species category no longer be allocated to individual CDQ groups.  Instead, the harvest of “other species” CDQ would be managed at the CDQ reserve level by applying management measures used for non-CDQ groundfish fisheries.  The Council also recommended that the CDQ non-specific reserve be eliminated.  Eliminating individual group allocations of “other species” would remove the need for the CDQ non-specific reserve, as it is designed to function at the individual group level, not at the CDQ reserve level.

        The Council's recommended revision to the management of “other species” CDQ is a departure from the original approach to managing the CDQ fisheries, which involved allocation of all CDQ and PSQ reserves to individual CDQ groups and strict accountability by the CDQ groups for catch of these species.  NMFS explained this original management approach in the proposed and final rules for the multispecies CDQ Program (62 FR 43866, August 15, 1997; 63 FR 30381, June 4, 1998).  At that time, keeping catch in the CDQ fisheries strictly within the CDQ and halibut PSQ reserve amounts, and accounting for all catch in all CDQ fisheries against CDQ group quotas was considered a more important goal of the program than the full harvest of all target species.
        The Council recognized that the original management and catch accounting structure developed for the groundfish CDQ Program may not be appropriate to apply to this species category.  It noted that managing the “other species” CDQ at the individual CDQ group level may preclude the successful attainment of overall CDQ Program goals.  This action would reflect a divergence from the original management philosophy for the CDQ fishery with respect to the management of “other species” CDQ.  Management measures used in the non-CDQ fisheries, such as directed fishing closures or placing species on “prohibited species catch” status, would be used to manage the “other species” CDQ reserve, rather than individual allocations to CDQ groups.
        The Council also recognized that managing “other species” at the CDQ reserve level could result in the CDQ fisheries catching more “other species” than are in the “other species” CDQ reserve, because “other species” CDQ catch would no longer be constrained by fixed allocations, but by more general management measures.  NMFS expects that management of the “other species” CDQ allocation at the CDQ reserve level would not, on its own, result in achievement of the “other species” TAC, Acceptable Biological Catch (ABC), or Overfishing Level (OFL) in the future.  An examination of the non-CDQ and CDQ “other species” allocation and catch levels from 1999-2002 illustrates that the combined catch in the CDQ and non-CDQ fisheries was less than the annual TAC, ABC, and OFL.  Even if the catch of “other species” in the CDQ fisheries increased if CDQ groups increase their catch of CDQ target species, NMFS does not expect that this increase would contribute significantly to any future potential for attainment of the “other species” TAC.  Thus, this action is not expected to cause early closures of non-CDQ fisheries or negatively impact non-CDQ fishermen.
        This change in management would, however, have the potential to increase the economic value of the CDQ fisheries by increasing the harvest of target species.  The Council considered the social and economic benefits of this action and the likelihood that this action would not negatively affect management of the “other species” quota category or cause limitations on the non-CDQ fisheries.  The Council determined that the social, economic, and conservation benefits associated with this action provide adequate justification to deviate from the original management philosophy for strict quota accountability in the CDQ fisheries.
        NMFS also supports implementing the change in “other species” CDQ management because this change should have a positive economic impact on western Alaska communities at a time when adequate “other species” resources are available for both the non-CDQ and CDQ fisheries.  Any incomplete harvest of allocated CDQ species that results from the current prohibition against exceeding an individual CDQ group's “other species” allocation results in foregone economic opportunities.  CDQ groups and their member communities benefit from their CDQ allocations via the royalty income received from the harvest of such allocations.  This income is used to fund fisheries-related investments, local economic development projects, and training and educational programs.  CDQ fishing operations also employ residents of CDQ communities in a variety of different positions.  Fishing industry partners affiliated with CDQ groups consider their CDQ fishing operations an important component of their aggregate fishing activities, because such operations provide them with access to additional fishery resources and revenues.
        Description of Action
        This action would modify the management of the “other species” CDQ reserve and amend regulations to distinguish between the management of those groundfish CDQ reserves that are allocated to CDQ groups and those that are not.  It would rescind  the “other species” CDQ percentage allocations issued to individual CDQ groups in January 2003, thereby superceding the Alaska Regional Administrator's 2003-2005 allocation decision specific to the “other species” CDQ category.  The “other species” CDQ reserve would still be established annually, but would no longer be allocated to CDQ groups.  All catch of “other species” in the groundfish CDQ fisheries would accrue towards this reserve, rather than towards specific allocations to individual CDQ groups.  NMFS would manage the “other species” CDQ reserve with management measures in § 679.20(d).  Under these measures, NMFS would issue a directed fishery closure applicable to “other species” CDQ at the beginning of each year.  This would limit the retention of “other species” in the groundfish CDQ fisheries to specified maximum retainable amounts established in regulations at § 679.20(e) and (f).  This limitation would minimize the likelihood that the available amount of “other species” CDQ would be reached in the groundfish CDQ fisheries.  It would still allow some retention of skates, which are part of the “other species” category, by those CDQ vessels wishing to retain them.  Additionally, NMFS would monitor the catch of “other species” in the CDQ fisheries and require that “other species” be treated in the same manner as a prohibited species if the CDQ reserve for “other species” were reached.   If this occurred, retention of “other species” in the groundfish CDQ fisheries would be prohibited.  Further fishing restrictions would occur if the aggregate catch of “other species” in both the CDQ and non-CDQ fisheries approach the annual OFL for “other species.”  If this were to occur, NMFS would specify limitations or prohibitions designed to prevent overfishing of this species group.
        In addition to modifying the management of the “other species” CDQ reserve, this action would eliminate the CDQ non-specific reserve.  Discontinuing the allocation of the “other species” CDQ reserve among individual CDQ groups would remove the need for the CDQ non-specific reserve, as arrowtooth flounder would be the only remaining CDQ category contributing to this reserve.  If the CDQ non-specific reserve mechanism were retained, NMFS would apportion 15 percent of each CDQ group's annual arrowtooth flounder CDQ allocation to a group's CDQ non-specific reserve.  The only CDQ species category that a group could release its non-specific reserve back to would be arrowtooth flounder, because an “other species” CDQ allocation would no longer be available to contribute to, or receive amounts from, a group's CDQ non-specific reserve.  Thus, modifying the management of “other species” CDQ would mean that the CDQ non-specific reserve becomes non-beneficial to CDQ groups.

        This action also would revise certain definitions associated with the CDQ Program in order to clarify their meaning within the context of both the groundfish CDQ allocation process and CDQ fisheries management.  Current headings and definitions associated with the terms CDQ, CDQ species, PSQ, and PSQ species do not accurately portray the intended definitions and common usage for such terms.  Revisions to these definitions would distinguish among terms associated with apportionments that are derived from larger BSAI catch limits (CDQ reserves and PSQ reserves), acronyms associated with the actual amount of a reserve allocated to individual CDQ groups (CDQ and PSQ), and terms associated with biological categorization and catch accounting (CDQ species and PSQ species).  Revising these definitions also would clarify CDQ catch monitoring and accounting requirements, as well as in-season management actions specific to the CDQ fisheries.
        The proposed rule would revise the definition of CDQ species so that it refers only to those species allocated among the CDQ groups.  The definition currently reads:  “CDQ species means any species or species group that has been assigned to a CDQ reserve under § 679.31.”  This action would change the definition to read:  “CDQ species means any species or species group that is allocated from a CDQ reserve to a CDQ group.”  The term “CDQ species” is used primarily in § 679.32 to provide instructions for some of the catch accounting regulations that apply to species that are allocated among the CDQ groups.  This proposed rule would not directly change any of the CDQ catch accounting requirements in § 679.32.  However, because some of the requirements apply to “CDQ species,” the revised definition of “CDQ species” would indirectly change these catch accounting requirements to exclude “other species.”  The only significant change that would occur would be that operators of catcher vessels required under § 679.32(c) to retain CDQ species until delivered to a shoreside processor or floating processor would no longer be required to retain species in the “other species” category (sharks, skates, sculpins, and octopi).  The catch of “other species” by these catcher vessels, for purposes of managing the CDQ reserve, could be adequately monitored through the same methods used to estimate catch in the non-CDQ fisheries.  These methods include landed catch reports from processors through shoreside logbooks or weekly production reports and observer data for “other species” catch by vessels with an observer onboard.
        This action also would revise the headings of other definitions associated with the CDQ Program.  Three definitions beginning with “community development quota” would be revised to use the acronym CDQ in the definitions' heading rather than the full term.  These revisions would make the format of these three definitions similar to the format of other defined terms starting with the acronym CDQ.  Similar definitions would be grouped together alphabetically, rather than be separated by a variety of non-CDQ related definitions.  This change, along with the previously mentioned changes to other definitions, would increase the clarity and consistency of defined terms and offer NMFS and the public greater efficiency when referencing CDQ Program definitions.  The proposed revisions to definitions are summarized in Table 1.

          Table 1.  Proposed changes to CDQ and PSQ definitions.

            Definition
            From
            To

            Revise § 679.2, heading and definition for “community development quota.”
            Community Development Quota (CDQ) means the amount of a CDQ species established under § 679.31 that is allocated to the CDQ program.
            CDQ means community development quota and is the amount of a CDQ reserve that is allocated to a CDQ group.

            Revise § 679.2, heading for definition of “CDQ Program.”
            Community Development Quota Program (CDQ Program) means the Western Alaska Community Development Quota Program implemented under subpart C of this part.
            CDQ Program means the Western Alaska Community Development Quota Program implemented under subpart C of this part.

            Revise § 679.2, heading for definition of “CDQ reserve.”
            Community Development Quota reserve (CDQ reserve) means a percentage of a total allowable catch for groundfish, a percentage of a catch limit for halibut, or percentage of a guideline harvest level for crab that has been set aside for purposes of the CDQ program.
            CDQ reserve means a percentage of each groundfish total allowable catch limit established under § 679.20(b)(1)(iii), a percentage of a catch limit for halibut, or a percentage of a guideline harvest level for crab that has been set aside for purposes of the CDQ Program.

            Revise § 679.2, definition for “CDQ species.”
            CDQ species means any species or species group that has been assigned to a CDQ reserve under § 679.31.
            CDQ species means any species or species group that is allocated from a CDQ reserve to a CDQ group.

            Revise § 679.2, heading and definition for “prohibited species quota.”
            Prohibited species quota (PSQ) means the amount of a prohibited species catch limit established under § 679.21(e)(1) and (e)(2) that is allocated to the groundfish CDQ program under § 679.21(e)(1)(i) and (e)(2)(ii).
            PSQ means prohibited species quota and is the amount of a PSQ reserve that is allocated to a CDQ group.

            Revise § 679.2, definition for “PSQ reserve.”
            Not currently defined.
            PSQ reserve means the percentage of a prohibited species catch limit established under § 679.21(e)(1) and (e)(2) that is allocated to the groundfish CDQ program under § 679.21(e)(1)(i) and (e)(2)(ii).

            Revise § 679.2, definition for “PSQ species.”
            PSQ species means any species that has been assigned to a PSQ reserve under § 679.21(e)(1)(i) and (e)(2)(ii) for purposes of the CDQ program. See also § 679.31(d).
            PSQ species means any species or species group that has been allocated from a PSQ reserve to a CDQ group.

        This proposed rule also would amend the introductory paragraph that discusses CDQ reserves, a prohibition relating to calculating maximum retainable amounts of CDQ catch, and regulations explaining CDQ catch monitoring and accounting in order to consistently use terms defined in § 679.2.  It would clarify how NMFS would manage groundfish CDQ reserves allocated among CDQ groups, including how NMFS would reconcile changes to allocated CDQ reserve categories that result from any TAC category changes made during the annual BSAI harvest specifications process.  CDQ and PSQ percentage allocations are approved for a fixed period, typically three years.  The species or management areas comprising TAC categories can change annually for biological or management reasons.  This action would allow NMFS to apply the approved percentage allocations for a given CDQ reserve category to any derivative CDQ reserve category that results from modifications made to TAC categories during the annual specifications process.  For example, if the Council recommended, and NMFS approved, splitting an individual species out of the “other flatfish” TAC category, then NMFS would use the CDQ percentage allocations approved for “other flatfish” to allocate the new species category among CDQ groups for the remainder of a CDQ allocation cycle.  This would ensure that annual CDQ allocations match annual TAC categories.  Doing so would allow NMFS to more effectively administer, manage, and account for annual CDQ reserves and allocations should annual TAC categories be changed during an allocation cycle.  Out of approximately 30 groundfish CDQ reserve categories, six reserve categories currently exist that could be split into subsidiary species or species groups and eight reserve categories that could be split into different management areas.  This action also would revise a prohibition against using groundfish caught while CDQ fishing to calculate retainable amounts of non-CDQ species to clarify that groundfish accruing against a CDQ reserve, rather than CDQ species,  may not be used as a basis species in such calculations.
        Classification
        The Assistant Administrator for Fisheries, National Marine Fisheries Service, determined that this proposed rule is consistent with the Magnuson-Stevens Act and other applicable laws.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        An Initial Regulatory Flexibility Analysis (IRFA) was prepared to evaluate the impacts of this action on directly regulated small entities in compliance with the requirements of Section 603 of the Regulatory Flexibility Act.  The reasons for the action, its objectives, and its legal basis have been described earlier in the preamble to this action.
        For the proposed action, the small regulated entities include the six CDQ groups participating in the western Alaska CDQ Program.  The preferred alternative does not appear to have adverse impacts on small entities because it would relieve a constraint that prevents CDQ groups from successfully harvesting portions of their annual CDQ allocations.  The preferred alternative would modify the management of the “other species” CDQ reserve to discontinue allocating this reserve to CDQ groups.  The objective of this proposed action is to facilitate greater success in harvesting royalty-generating CDQ target species.  This is a beneficial impact.
        Modifying the percentage contribution to the CDQ non-specific reserve was one of five alternatives initially considered as a means to modify the management of the “other species” CDQ reserve.  Two alternatives were analyzed in detail.  The first was a no action alternative that would continue to allocate the “other species” CDQ reserve to CDQ groups and the second alternative would allow NMFS to manage this reserve, rather than allocating it to CDQ groups.  Three alternatives were considered by NMFS but not carried forward for further analysis based on a preliminary assessment of whether they were actually viable or not.  The first rejected alternative would increase the percentage contribution from the arrowtooth flounder CDQ reserve to the non-specific CDQ reserve, thereby indirectly increasing the amount of “other species” available to CDQ groups.  However, this percentage would be difficult to calculate accurately, as its efficacy would be affected by variables arising during future BSAI groundfish specifications processes.  It is also possible that this alternative would lead to an arrowtooth flounder CDQ reserve that is insufficient to account for the catch of that particular species in CDQ fisheries, thereby shifting an accounting problem from one species category to another.
        The second rejected alternative would be to not allocate “other species” to the CDQ Program.  This would be contrary to the Magnuson-Stevens Act, which requires the Council and NMFS to allocate a percentage of the TAC of each Bering Sea fishery to the CDQ Program.  The third rejected alternative would increase the amount of the annual “other species” TAC that is allocated to the “other species” CDQ reserve.  Conversely, the amount of “other species” apportioned to the non-CDQ fisheries would decrease.  This would require a determination of an “other species” apportionment between fishery components that would be difficult to accurately calculate and that could introduce an element of controversiality to this action.  The Council did not request an expanded analysis of the additional three potential alternatives that were presented to them.  Instead it chose to focus its deliberations on the two primary alternatives considered in the analysis.
        The status quo is the alternative to the preferred action.  The status quo would not lead to a modification of the management of the “other species” CDQ reserve.  CDQ groups would still receive individual allocations of “other species” CDQ and be subject to a prohibition against exceeding a CDQ, including “other species” CDQ.  The status quo was rejected because it would not relieve a constraint against the complete harvest of CDQ target species, would not accomplish the objective of this action, and because it would have a relatively adverse impact on small entities.
        This regulation would not impose new recordkeeping or reporting requirements on the regulated small entities.  The analysis for this action did not reveal any Federal rules that duplicate, overlap or conflict with the proposed action.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries, Recordkeeping and reporting requirements.

          Dated:  October 16, 2003.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        1.  The authority citation for part 679 continues to read as follows:

          Authority:
          16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub L. 106-31, 113 Stat. 57; 16 U.S.C. 1540(f).

        2.  In § 679.2, the definitions for “Community Development Quota,” “Community Development Quota Program,” Community Development Quota reserve,” and “prohibited species quota” are removed; the definitions for “CDQ,” “CDQ Program,” “CDQ reserve,” “PSQ,” and “PSQ reserve” are added in alphabetical order; and, the definitions for “CDQ species” and “PSQ species” are revised to read as follows:

          § 679.2
          Definitions.

            CDQ means community development quota and is the amount of a CDQ reserve that is allocated to a CDQ group.

            CDQ Program means the Western Alaska Community Development Quota Program implemented under subpart C of this part.

            CDQ reserve means a percentage of each groundfish total allowable catch limit established under § 679.20(b)(1)(iii), a percentage of a catch limit for halibut, or a percentage of a guideline harvest level for crab that has been set aside for purposes of the CDQ Program.

            CDQ species means any species or species group that is allocated from a CDQ reserve to a CDQ group.

            PSQ means prohibited species quota and is the amount of a PSQ reserve that is allocated to a CDQ group.

            PSQ reserve means the percentage of a prohibited species catch limit established under § 679.21(e)(1) and (e)(2) that is allocated to the groundfish CDQ program under § 679.21(e)(1)(i) and (e)(2)(ii).

            PSQ species means any species or species group that has been allocated from a PSQ reserve to a CDQ group.

        3.  In § 679.7, paragraph (d)(16) is revised to read as follows:

          § 679.7
          Prohibitions.
          (d) * * *
          (16) Use any groundfish accruing against a CDQ reserve as a basis species for calculating retainable amounts of non-CDQ species under § 679.20.

        4.  In § 679.31, the introductory paragraph is revised and paragraph (f) is revised to read as follows:

          § 679.31
          CDQ Reserves.
           Portions of the CDQ and PSQ reserves for each subarea or district may be allocated for the exclusive use of CDQ groups in accordance with CDPs approved by the Governor in consultation with the Council and approved by NMFS.  NMFS will allocate no more than 33 percent of each CDQ reserve to any one group with an approved CDP.
          (f) Management of the Groundfish CDQ Reserves. (1) Groundfish CDQ reserves allocated among CDQ groups.

          (i) Except as limited by paragraph (f)(2) of this section, the groundfish CDQ reserves are apportioned among CDQ groups using percentage allocations approved by NMFS under § 679.30(d).
          (ii) If the groundfish harvest specifications required by § 679.20(c) change the species comprising a TAC category or change a TAC category by combining or splitting management areas, then the CDQ percentage allocations approved by NMFS for the original TAC category will apply to any new categories.
          (iii) A CDQ group is prohibited by 679.7(d)(5) from exceeding an annual groundfish CDQ amount allocated to it.
          (iv) NMFS may specify limitations or prohibitions to prevent overfishing of any BSAI groundfish species, including measures specific to groundfish CDQ species allocated among CDQ groups (see § 679.20(d)(3)).
          (2) Groundfish CDQ reserves not allocated among CDQ groups.

          (i) The “other species” CDQ reserve, or individual species that comprise the “other species” CDQ reserve, will not be allocated among CDQ groups.
          (ii) Groundfish CDQ reserves not allocated among CDQ groups will be managed at the CDQ reserve level under general limitations at § 679.20(d).

        5.  In § 679.32, paragraph (c)(1)(i) is revised to read as follows:

          § 679.32
          Groundfish and halibut CDQ catch monitoring.
          (c) * * *
          (1) Catcher vessels without an observer.

          (i) Operators of catcher vessels less than 60 ft (18.3 m) LOA must retain all groundfish CDQ species, halibut CDQ, and salmon PSQ until it is delivered to a processor that meets the requirements of paragraph (c)(3) or (c)(4) of this section unless retention of groundfish CDQ species is not authorized under § 679.4 of this part, discard of the groundfish CDQ species is required under subpart B of this part, or, in waters within the State of Alaska, discard is required by the State of Alaska.

      [FR Doc. 03-26675 Filed 10-21-03; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 080228322-8338-01]
        RIN 0648-AW24
        Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Observer Program

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes this rule to amend regulations supporting the North Pacific Groundfish Observer Program (Observer Program). This action is necessary to improve the operational efficiency of the Observer Program, as well as improve the catch, bycatch, and biological data provided by observers for conservation and management of the North Pacific groundfish fisheries, including that provided through scientific research activities. The proposed rule is intended to promote the goals and objectives of the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area and the FMP for Groundfish of the Gulf of Alaska.

          DATES:
          Written comments must be received by October 30, 2009

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AW24,” by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Fax: 907-586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

           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 (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov or by fax to 202-395-7285.

          Copies of the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for this action may be obtained from the NMFS Alaska Region website at http://alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Brandee Gerke, 907-586-7228.

        SUPPLEMENTARY INFORMATION:
        Background
        NMFS manages the U.S. groundfish fisheries in the Exclusive Economic Zone (EEZ) of the Bering Sea and Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) under the FMP for Groundfish of the BSAI and the FMP for Groundfish of the GOA, respectively. The North Pacific Fishery Management Council (Council) prepared these FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1851-1891d. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

        The Observer Program provides the administrative framework for observers to obtain information necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Regulations implementing the Observer Program at § 679.50 require observer coverage aboard catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors that participate in the groundfish fisheries off Alaska. These regulations also establish vessel, processor, and observer provider responsibilities relating to the Observer Program.

        This proposed rule would amend regulations at § 679.2 and § 679.50 applicable to observer providers, observers, and industry required to carry observers. The proposed regulatory amendments are organized under six issues and would: remove regulations that are unnecessary, impractical to apply, or are considered to be unenforceable; revise regulations to explicitly allow observer providers to provide observers for exempted fishing permit-based and scientific research permit-based activities; add regulations to prohibit activities that result in non-representative fishing behavior from counting toward an observer coverage day; require observer providers to report to NMFS information about the cost of providing observers; and establish a deadline when observer providers must submit to NMFS, an exemplary copy of each of type of contract they enter into with observers and the fishing industry to NMFS. The Council selected a preferred alternative for each of these issues at its April 2008 meeting. This action is necessary to improve the operational efficiency of the existing Observer Program, as well as to improve the catch, bycatch, and biological data provided by observers for conservation and management of the North Pacific groundfish fisheries, including those provided through scientific research activities.
        Issue 1: Observer Certification and Observer Provider Permitting Process
        Persons seeking to provide observer services or work as an observer under § 679.50 must obtain an observer provider permit or observer certification, respectively, from NMFS. The granting or denial of observer provider permits and observer certifications are discretionary agency actions. This proposed rule expands NMFS' discretion to consider additional needs and objectives of the Observer Program and other relevant factors when considering whether or not to issue a new observer provider permit or observer certification.
        Existing regulations at § 679.50 obligate NMFS to grant a provider permit to an applicant who submits a complete application, meets narrowly-defined criteria regarding criminal history and past performance on federal contracts, and has no conflict(s) of interest with the fishing industry. These regulations prevent NMFS from exercising its discretion to not issue permits when other concerns or inconsistencies with the Observer Program's goals and objectives have been identified in a permit application. This proposed rule would expand NMFS' discretion by broadening the conditions the observer provider permit application review board may consider in deciding whether or not to issue a new permit. Moreover, this proposed rule would remove the application evidentiary period at § 679.50(i)(1)(iv). This would allow NMFS to tailor a time period in which an applicant may provide additional information on a case-by-case basis.
        Current regulations at § 679.50(j)(1)(iv) provide an appeal forum to a candidate for observer certification who fails training to the extent that the program certification official determines that the candidate demonstrates “unresolvable deficiencies” and should not be allowed to re-enter a subsequent training class. Most candidates who fail the initial training are permitted to retake it. However, in the rare instance that a candidate's performance is deficient to the extent he or she is unlikely to improve performance, the certification official can issue an Initial Agency Decision (IAD) denying readmission into a training class. The same appeal forum is provided at § 679.50(i)(1)(v) for an observer provider applicant who is denied an observer provider permit. As explained in the RIR/IRFA for this proposed rule, the appeal forum at § 679.50(j)(1)(iv) has only been activated on two occasions and has not resulted in the subsequent certification of an observer candidate. One appeal resulted in the decision that an observer could retake training; however, that candidate never returned to training. When it has been activated, the appeal process requires both Observer Program staff and NOAA General Counsel to devote a substantial amount of time to the appeal. Moreover, the appellate forum process can consume up to a year before an appeal is resolved, a situation that does not facilitate an observer candidate's interest in obtaining training and a certification for employment within reasonable time frame. Therefore, NMFS proposes to remove the appeal forum provided for observer candidates who fail training and who are notified that they may not retake the course, and for observer provider applicants whose permit applications are denied to better allocate scarce agency resources. This proposed rule does not affect the ability of observers and observer providers to appeal any decision to revoke or sanction a certification or permit that is already issued.
        Issue 2: Observer Conduct
        Current regulations at § 679.50(j)(2)(ii)(D) attempt to control observer conduct so that certified observers present themselves professionally on vessels, at plants, at NMFS sites, and in fishing communities. NMFS has found these regulations impractical to apply and potentially unenforceable. For example, for NMFS to decertify an observer who has violated the Observer Program's drug and alcohol policy, or the regulation that prohibits observers from engaging in physical sexual contact with personnel of the vessel or processing facility to which the observer is assigned, NMFS must establish connection between the unsanctioned behavior and the collection of reliable fisheries data. Proving that such a connection exists, especially in cases in which the unsanctioned behavior occurs outside of the workplace, can be very difficult. Moreover, some of the observer conduct regulations are vague and impractical to apply. For example, current regulations require observers to “refrain from engaging in any activities that would reflect negatively on their image as professional scientists, on other observers, or on the Observer Program as a whole.” (50 CFR 679.50(j)(2)(ii)(D).). The regulations offer observers no guidance as to the types of behavior that is prohibited, nor does NMFS have any practical means to enforce adherence to these vague standards.
        Due to the impracticality of applying these regulations and proving these connections, NMFS has determined that it should not attempt to regulate observer behavior that does not directly affect observer job performance and views the prescription of conduct standards as an employer responsibility. Therefore, NMFS proposes to remove current regulations at § 679.50(j)(2)(ii)(D) that attempt to control observer behavior related to activities involving drugs, alcohol, and physical sexual conduct, and to remove references to the Observer Program's drug and alcohol policies in the regulations.

        In recognition of the fact that drug and alcohol use and physical sexual activity while deployed may affect an observer's ability to perform his or her duties and may compromise workplace safety, regulations would be revised to require each observer provider to have a policy addressing observer conduct and behavior related to drugs, alcohol, and physical sexual conduct. Each provider would be required to submit a copy of its policy to NMFS by February 1 of each year. A requirement would be added under § 679.50(i)(2) that observer providers notify NMFS within 72 hours upon determination that an observer has violated the provider's conduct policy. This notification shall include the facts and circumstances of the violation. NMFS intends to use this information when assessing observer performance and quality of data collection.
        NMFS would not define standards for these policies; thus, providers would exercise discretion when developing their policies. However, NMFS continues to have an interest in the providers' conduct policies. Thus, if NMFS determines that the providers' policies lead to a negative impact on the quality of data collected by observers, NMFS would reconsider this action. If that occurs, NMFS would have to consider additional authorization and funding to institute an effective system to regulate observer conduct and behavior.
        Issue 3: Providing Observers for Research Activities
        Current regulations at § 679.50(i)(3)(i) prohibit observer providers from having a direct financial interest, other than the provision of observer services, in a North Pacific fishery managed under an FMP. However, observer providers have historically provided observers and “scientific data collectors” to researchers operating under exempted fishing permits (EFPs) and scientific research permits (SRPs). While the regulations do not specifically prohibit observer providers from providing observers or scientific data collectors in support of these activities, they are ambiguous as to whether these activities are allowed under the conflict of interest regulation. This proposed rule would clarify that observer providers are not prohibited from supplying observers and scientific data collectors for fishing conducted pursuant to EFPs and for scientific research activities.
        Issue 4: Fishing Day Definition
        Regulations at § 679.50(c)(1)(v) require a catcher/processor or catcher vessel equal to or greater than 60 ft (18.3 m) length overall (LOA), but less than 125 ft (38.1 m) LOA, to carry an observer for at least 30 percent of its fishing days per calendar quarter and at all times during at least one fishing trip per calendar quarter while directed fishing for groundfish. A “fishing day” is defined at § 679.2 as a 24-hour period, from 0001 hours Alaska local time (A.l.t.) through 2400 hours A.l.t., in which fishing gear is retrieved and groundfish are retained. Under these regulations, an observer must be onboard a vessel only at some point, no matter how briefly, during a 24-hour period when fishing occurs and groundfish are retained, to count as a “fishing day” for the purpose of observer coverage requirements. While many vessels operate with an observer as they would without an observer, NMFS suspects that others intentionally alter their fishing pattern to meet minimum observer coverage requirements. Often, these fishing events are not representative of normal fishing duration, location, and depth, and catch composition may vary significantly from that associated with the vessel's normal, legitimate fishing pattern. These non-representative events bias the observer information NMFS relies on for effective management of the groundfish fisheries.
        NMFS' Office of Law Enforcement has also documented instances in which vessel operators intentionally structure fishing activities to fish unobserved until late in the day, pick up an observer and make a short tow prior to midnight, make one more tow immediately after midnight, and then return the observer to port. Additional fishing activities then occur during the remainder of the second day, during which the observer is not onboard. Under the current regulations, this scenario counts for two “observer” days and may result in biased observer data.
        To reduce the potential for biasing observer data, the proposed rule would revise the definition of “fishing day” at § 679.2 to be a 24-hour period, from 1201 hours A.l.t. through 1200 hours A.l.t., in which fishing gear is retrieved and groundfish are retained. It will require that an observer be on board for all gear retrievals during the 24-hour period in order to count as a day of observer coverage. Days during which a vessel only delivers unsorted codends to a processor will not be considered fishing days, as is currently the case.
        This revision would reduce the cost-effectiveness of making a fishing trip solely to manipulate observer coverage requirements. Revising the definition of the 24-hour period from the current midnight-to-midnight definition (from 0001 hours through 2400 hours Alaska local time) to a noon to noon definition (1201 hours through 1200 hours Alaska local time) is intended to discourage vessels from making sets or tows solely for the purpose of obtaining observer coverage around the transitional hours from one fishing day to the next.
        Issue 5: Observer Cost Information
        Under the current system for Alaska groundfish fishery observer services, vessels and plants required to take observers under § 679.50 contract directly with certified observer providers. Because NMFS is not a party to the contracts, NMFS lacks information on the actual costs for observer coverage incurred by the groundfish fishery. Without this information, NMFS has had to rely on estimates of the average daily cost of observer coverage across all North Pacific groundfish fisheries to assess the economic effects of various management regimes on impacted entities. Industry has commented that although observer costs vary by region and sector, NMFS' estimates do not take that variability into account. Several factors affect the daily cost of observer coverage; for example, deploying observers to remote locations for short periods of time results in higher costs per day than deploying observers to ports with regularly scheduled air service or in fisheries of substantial duration. NMFS' analyses would be improved by the acquisition of actual cost information.
        The MSA authorizes the collection of fees from North Pacific fishery participants to pay for implementing a fisheries research plan, including observer coverage. More accurate information on the cost of the existing observer program would help the Council and NMFS determine appropriate fees and the extent of observer coverage afforded by those fees when a fee-based research plan is developed and implemented.
        This proposed rule would require observer providers to submit to NMFS copies of all individual invoices for observer coverage in the North Pacific groundfish fishery. Every third year would be a reporting year for submitting invoices. Observer providers would be required to submit these invoices to NMFS for a full calendar year in each reporting year. If the program were implemented in 2010, providers would be required to submit copies of actual invoices during 2010. Invoices would be submitted again in the next reporting year (e.g., 2013, 2016, 2019).

        The Council recommended that observer providers submit copies of actual invoices to NMFS because these are less burdensome than requiring the providers to prepare and submit summarized expense reports; it allows NMFS to understand the full cost of providing observer coverage in the groundfish fisheries off Alaska; it provides for verifiable data; and it allows for increased flexibility in data analysis compared to requiring summarized information from providers. The RIR/IRFA for this action recognizes that under this alternative the primary burden for data-entry and analysis would be shifted from the observer providers to NMFS. However, this alternative would provide NMFS with independently verifiable information and enhanced analytical flexibility over collecting summarized expense reports from the observer providers because NMFS will be able to confirm the number of days an observer was deployed to a particular vessel and bin the raw invoice information as analytical needs dictate.
        As these invoices contain proprietary business information, NMFS will consider this information as business confidential information afforded the protections of section 402 of the MSA. Accordingly, NMFS will collect and maintain this information as it does with other confidential data, and will limit access to unaggregated invoice information to NMFS staff.
        The Council also recommended a three-year invoice submission cycle to accommodate ongoing data collection while minimizing the reporting burden on observer providers. NMFS has found shortcomings with the three-year data collection cycle preferred by the Council, as it would delay NMFS' ability to detect trends in observer coverage costs and limit the precision in evaluating the temporal variability of these costs. The Council's preferred alternative would not allow for a complete, continuous overview of the industry's Observer Program costs due to the three-year lapse between data collection cycles; however, it would provide information that NMFS currently needs and lacks. The Council could revisit this issue in the future should NMFS and the Council determine that data are needed more frequently from observer providers.
        During a reporting year, within 45 days of the invoice date, observer providers would be required to submit to NMFS a copy of each invoice for services provided that year. NMFS seeks public comment on this submission deadline to help determine if this time period is reasonable for observer providers to provide copies of invoices to NMFS. Invoices shall include the following information: the name of each individual catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant to which the invoice applies; the name of the observer who worked aboard each catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant; the dates of service for each observer on each catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant; the rate charged in dollars per day for observer services; the total charge for observer services (number of days multiplied by daily rate); the amount charged for air transportation; and the amount charged for other expenses, such as ground transportation, lodging, or excess baggage. These charges would be required to be separated and identified.
        Issue 6: Miscellaneous Revisions
        The proposed rule would establish a deadline by which observer providers must submit to NMFS an exemplary copy of a contract between the provider and the observer and the provider and the vessel or plant operator requiring observer service in the groundfish fisheries off Alaska. Existing regulations at § 679.50 require the submission of these contracts; however no deadline is specified. This proposed rule would establish a submission deadline of February 1 of each year, which corresponds with the deadline for submitting certificates of insurance required by § 679.50(i)(2)(x)(F). This issue was referenced as Issue 7 in the RIR/IRFA; however, the Council selected the “no action” alternative for Issue 6. Thus, for the purposes of this proposed rulemaking, this miscellaneous revision now comprises Issue 6.
        Two other miscellaneous revisions analyzed under this issue in the RIR/IRFA have been subsequently removed from the proposed rule. The first minor revision would have corrected an erroneous reference to observer workload restrictions at § 679.50(c)(5)(i)(A). In developing this proposed rule it came to NMFS' attention that additional corrections to § 679.50(c)(5) were needed. Thus, this reference will be corrected in a separate rule making and is not addressed in this proposed rule. The other miscellaneous revision included in the RIR/IRFA would have corrected references to NMFS' Alaska Fisheries Science Center, Fisheries Monitoring and Analysis Division website throughout the regulations at § 679.50, as the existing reference is now invalid. Because website references and content are subject to change, NMFS is proposing to exclude references to the Fisheries Monitoring and Analysis Division website from the regulations. This revision under Issue 6 is expected to have the intended effect of the Council's motion as the erroneous references will be revised in the regulations.
        Classification
        Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the regulatory amendment, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An initial regulatory flexibility analysis (IRFA) was prepared, 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 description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        The IRFA for this proposed action describes in detail the reasons why this action is being proposed; describes the objectives and legal basis for the proposed rule; describes and estimates the number of small entities to which the proposed rule would apply; describes any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; identifies any overlapping, duplicative, or conflicting Federal rules; and describes any significant alternatives to the proposed rule that accomplish the stated objectives of the MSA and any other applicable statutes that would minimize any significant adverse economic impact of the proposed rule on small entities.
        The description of the proposed action, its purpose, and its legal basis are described elsewhere in the preamble and are not repeated here. The directly regulated entities are different under the different issues addressed in this proposed rule. Because the RFA is applicable only to businesses, non-profit organizations, and governments, observers fall outside of the RFA's scope, and are therefore not discussed in the IRFA.

        Five observer provider companies are currently holding observer provider permits and are active in the North Pacific. These entities would be directly regulated by the proposed actions under Issues 2, 3, 5 and 6. All of the current observer provider companies are considered small entities under the RFA. The potential number of small observer provider firms that may be interested in obtaining a permit to provide observer services in the future would be regulated under Issue 1. However, the potential number of observer provider firms cannot be estimated, and because they represent a future scenario, they are not considered directly regulated under the proposed action.
        Trawl and hook-and-line catcher vessels (CVs) and catcher processors (CPs) subject to the 30 percent observer coverage requirements would be directly regulated by the proposed action in Issue 4. Trawl and hook-and-line CVs between 60 feet and 125 feet LOA and hook-and-line CPs between 60 feet and 125 feet LOA in the BSAI and GOA, with the exception of vessels participating in specific programs that require 100 percent observer coverage, would be directly regulated by actions under Issue 4. AFA trawl CVs subject to the 30 percent observer coverage requirements are categorized as large entities for the purpose of the RFA due to their affiliation with one another through the American Fisheries Act (AFA) pollock harvest cooperatives.
        The table below summarizes all of the potentially directly regulated small entities, by sector, under Issue 4 of the proposed action. The IRFA likely overestimates the number of directly regulated small entities. NMFS does not have access to data on ownership and other forms of affiliation for most segments of the fishing industry operating off Alaska, nor does NMFS have information on the combined annual gross receipts for each entity by size. Absent these data, a more precise characterization of the size composition of the directly regulated entities impacted by this action cannot be offered.

          Table 1. Estimate of the Number of Small Entities Potentially Directly Regulated by Issue 4 of the Proposed Action.

            Sector
            2006
            2007

            Observer Providers
            5
            5

            Trawl CV >60' and ≤125'
            39
            23

            Trawl CP >60' and ≤125'
            12
            10

            H&L CV >60' and ≤125'
            97
            74

            H&L CP >60' and ≤125'
            11
            11

        Proposed actions under Issue 2 and Issue 5 would require additional recordkeeping and reporting requirements for the five observer providers currently supplying services to the Observer Program. Issue 6 actions would impose a deadline for submission of information that is already required of observer providers under existing regulations. Issue 2 actions would require observer providers to have observer policies related to alcohol, drugs, and sexual contact; provide NMFS a copy of the conduct policy by February 1 of each year; and to notify (including the underlying facts and circumstances) NMFS of a violation of the observer provider's policies within 72 hours after the provider determines that an observer violated a policy. Current regulations at § 679.50(i)(2)(x)(I) require observer providers to notify NMFS of other types of conduct violations within 24 hours of becoming aware of the alleged violation; thus, this proposed action does not substantially alter that reporting requirement. It may take 20 minutes or less for an employee of the observer provider company to report this information to NMFS as fax or email are acceptable means of communication.
        The proposed rule under Issue 5 would require observer providers to submit copies of billing invoices to NMFS for a full year, every third year. This recordkeeping and reporting requirement will not require the observer providers to modify or interpret their billing invoices. Observer provider companies should incur minor costs associated with copying and transmitting copies of their actual billing invoices to NMFS under the proposed rule for Issue 5. NMFS estimates that approximately six hours a year would be required for observer providers to email their invoices to NMFS with no additional expenses anticipated because observer providers have computers with internet access. If an observer provider mails copies of his or her invoices to NMFS, it is estimated to cost the observer provider approximately $48 per year for paper, envelopes, and postage in addition to six hours of labor expected for copying and mailing.
        The proposed rule under Issue 6 slightly modifies existing regulations by imposing a February 1 deadline for observer providers to submit to NMFS each type of contract they have entered into with observers or the fishing industry. Because regulations already require observer provider companies to submit this information to NMFS, and because most observer provider companies have been submitting this information by February 1 in the past, this regulatory amendment should impose virtually no additional net burden on the observer provider companies.
        The analysis revealed no Federal rules that would conflict with, overlap, or be duplicated by the alternatives under consideration.
        With regard to the economic burden of the proposed rule on small entities, the Council selected the least economically burdensome alternatives that met the purpose and need for action based upon the analysis in the RIR and IRFA. The Council selected the only action alternative under Issue 2 and Issue 6. There were three action alternatives for Issue 5 and the Council selected the least economically burdensome alternative for observer providers by rejecting alternatives that would require providers to compile annual expense reports summarized by fishery or expense category. The alternative that would require observer providers to submit copies of invoices already being prepared as part of their standard bookkeeping was determined to be less burdensome than the other alternatives. The Council sought to further reduce the economic burden on observer providers by requiring them to submit copies of their invoices only once every three years.
        Collection-of-Information
        This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval under OMB Control Number 0648-0318. Public reporting burden is estimated to average 30 minutes per individual response for Copies of Invoices; 15 minutes for Observer Provider Contract Copies; two hours for Other Reports; 40 hours for Appeals for Observer Provider Permit Expiration or Denial of Permit (this item is removed with this action); and 40 hours for Observer Conduct and Behavior Policy, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The PRA package submitted for this proposed rule estimated that it will cost each observer provider $1500 per reporting year to comply with this information submission requirement.

        Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

          List of Subjects in 50 CFR Part 679

        Alaska, Fisheries, Reporting and recordkeeping requirements.

          Dated: September 24, 2009.
          James W. Balsiger,
          Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        1. The authority citation for 50 CFR part 679 continues to read as follows:

          Authority:
          16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108—447.

        2. In § 679.2, revise the definition of “Fishing day” to read as follows:

          § 679.2
          Definitions.

            Fishing day means (for purposes of subpart E of this section) a 24-hour period, from 1201 hours A.l.t. through 1200 hours A.l.t., in which fishing gear is retrieved and groundfish are retained. An observer must be on board for all gear retrievals during the 24-hour period in order to count as a day of observer coverage. Days during which a vessel only delivers unsorted codends to a processor are not fishing days.

        3. In § 679.50:

        A. Remove and reserve paragraph (i)(1)(iii)(B) and remove paragraphs (i)(1)(iv), (i)(2)(i)(C)(1), (j)(1)(iv)(B), and (j)(2)(ii)(D).
        B. Redesignate paragraphs (i)(1)(v) through (viii) as paragraphs (i)(1)(iv) through (vii) respectively.
        C. Redesignate paragraphs (i)(2)(i)(C)(2) through (4) as paragraphs (i)(2)(i)(C)(1) through (3), respectively.
        D. Redesignate paragraphs (i)(2)(iii) through (xii) as paragraphs (i)(2)(iv) through (xiii), respectively.

        E. Redesignate newly redesignated paragraphs (i)(2)(xi)(H) and (I) as paragraphs (i)(2)(xi)(I) and (J), respectively, and further redesignate paragraphs (i)(2)(xi)(J)(1) through (5) as paragraphs (i)(2)(xi)(J)(1)(i) through (v), respectively.
        F. Redesignate paragraphs (i)(3)(i) through (iii) as paragraphs (i)(3)(ii) through (iv), respectively.
        G. Redesignate paragraph (j)(1)(iv)(C) as paragraph (j)(i)(iv)(B).

        H. Add paragraphs (i)(2)(iii), (i)(2)(xi)(H), (i)(2)(xi)(J)(1) introductory text, (i)(2)(xi)(J)(2), and (i)(3)(i).
        I. Revise paragraphs (i)(1)(i)(A), (i)(1)(iii)(A) introductory text, (i)(2)(i)(B), (j)(1)(iii)(B) introductory text, (j)(1)(iv)(A), (j)(2)(ii) introductory text, and (j)(2)(ii)(A) through (C).

        J. Revise newly redesignated paragraphs (i)(1)(iv), (i)(1)(vi)(B), (i)(2)(xi)(G) first sentence, (i)(2)(xi)(J) introductory text, (i)(2)(xi)(J)(1)(v), and (i)(3)(ii) introductory text.
        The revisions and additions read as follows:

          § 679.50
          Groundfish Observer Program.
          (i) * * *
          (1)* * *
          (i) * * *
          (A) The Regional Administrator may issue a permit authorizing a person's participation as an observer provider. Persons seeking to provide observer services under this section must obtain an observer provider permit from NMFS.
          (iii) * * *
          (A) The Regional Administrator will establish an observer provider permit application review board, comprised of NMFS staff, to review and evaluate an application submitted under paragraph (i)(1) of this section. The review board will evaluate the completeness of the application, the application's consistency with needs and objectives of the observer program, or other relevant factors, and the following criteria for each owner, or owners, board members, and officers if a corporation:
          (iv) Agency determination on an application. NMFS will send a written determination to the applicant. If an application is approved, NMFS will issue an observer provider permit to the applicant. If an application is denied, the reason for denial will be explained in the written determination.
          (vi) * * *
          (B) The Regional Administrator will provide a written initial administrative determination (IAD) to an observer provider if NMFS' deployment records indicate that the permit has expired. An observer provider who receives an IAD of permit expiration may appeal under § 679.43. A permit holder who appeals the IAD will be issued an extension of the expiration date of the permit until after the final resolution of that appeal.
          (2) * * *
          (i) * * *
          (B) Prior to hiring an observer candidate, the observer provider must provide to the candidate copies of NMFS-provided pamphlets and other literature describing observer duties.
          (iii) Observer conduct. (A) An observer provider must develop and maintain a policy addressing observer conduct and behavior for their employees that serve as observers. The policy shall address the following behavior and conduct regarding:
          (1) Observer use of alcohol;
          (2) Observer use, possession, or distribution of illegal drugs and;
          (3) Sexual contact with personnel of the vessel or processing facility to which the observer is assigned, or with any vessel or processing plant personnel who may be substantially affected by the performance or non-performance of the observer's official duties.
          (B) An observer provider shall provide a copy of its conduct and behavior policy by February 1 of each year, to:
          (1) Observers, observer candidates and;
          (2) The Observer Program Office.
          (xi) * * *
          (G) Observer provider contracts. Observer providers must submit to the Observer Program Office a completed and unaltered copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services under paragraphs (c) and (d) of this section, by February 1 of each year. * * *
          (H) Observer provider invoices. Beginning in 2010 and in every third calendar year thereafter (e.g., 2013, 2016, 2019), certified observer providers must submit to the Observer Program Office copies of all invoices for observer coverage required or provided pursuant to paragraphs (c) and (d) of this section.
          (1) Copies of invoices must be received by the Observer Program Office within 45 days of the date on the invoice and must include all reconciled and final charges.
          (2) Invoices must contain the following information:
          (i) Name of each individual catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant to which the invoice applies;
          (ii) Dates of service for each observer on each catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant. Dates billed that are not observer coverage days shall be identified on the invoice;
          (iii) Rate charged in dollars per day (daily rate) for observer services;
          (iv) Total charge for observer services (number of days multiplied by daily rate);
          (v) Amount charged for air transportation; and
          (vi) Amount charged by the provider for any other observer expenses, including but not limited to: ground transportation, excess baggage, and lodging. Charges for these costs must be separated and identified.
          (J) Other reports. Reports of the following must be submitted in writing to the Observer Program Office by the observer provider via fax or email:
          (1) Within 24 hours after the observer provider becomes aware of the following information:
          (v) Any information, allegations or reports regarding observer conflict of interest or failure to abide by the standards of behavior described at paragraph (j)(2)(i) or (j)(2)(ii) of this section, or;
          (2) Within 72 hours after the observer provider determines that an observer violated the observer provider's conduct and behavior policy described at paragraph (i)(2)(iii)(A) of this section; these reports shall include the underlying facts and circumstances of the violation.
          (3) * * *
          (i) Are authorized to provide observer services under an FMP for the waters off the coast of Alaska as required in this part, or scientific data collector and observer services to support NMFS-approved scientific research activities, exempted educational activities, or exempted or experimental fishing as defined in § 600.10 of this chapter.
          (ii) Must not have a direct financial interest, other than the provision of observer or scientific data collector services, in a North Pacific fishery managed under an FMP for the waters off the coast of Alaska, including, but not limited to:
          (j) * * *
          (1) * * *
          (iii) * * *
          (B) New observers. NMFS may certify individuals who, in addition to any other relevant considerations:
          (iv) * * *
          (A) Denial of a certification. The NMFS observer certification official will issue a written determination denying observer certification if the candidate fails to successfully complete training, or does not meet the qualifications for certification for any other relevant reason.
          (2) * * *
          (ii) Standards of Behavior. Observers must:
          (A) Perform their assigned duties as described in the Observer Manual or other written instructions from the Observer Program Office;
          (B) Accurately record their sampling data, write complete reports, and report accurately any observations of suspected violations of regulations relevant to conservation of marine resources or their environment and;
          (C) Not disclose collected data and observations made on board the vessel or in the processing facility to any person except the owner or operator of the observed vessel or processing facility, an authorized officer, or NMFS.

          § 679.50
           [Amended]
          4. At each of the locations shown in the Location column, remove the phrase indicated in the “Remove” column and replace it with the phrase indicated in the “Add” column for the number of times indicated in the “Frequency” column.

              Location at § 679.50
              Remove
              Add
              Frequency

              Newly redesignated  (i)(2)(i)(C)(3)
              in paragraph (i)(2)(x)(C) of this
              in paragraph (i)(2)(xi)(C) of this
              1

              (i)(2)(ii)(A)
              under paragraph (i)(2)(x)(E) of this
              under paragraph (i)(2)(xi)(E) of this
              1

              Newly redesignated (i)(2)(iv)(B)
              in paragraph (i)(2)(x)(C) of this
              in paragraph (i)(2)(xi)(C) of this
              1

              Newly redesignated (i)(2)(vii)(B)
              in paragraphs (i)(2)(vi)(C) and (i)(2)(vi)(D) of this
              in paragraphs (i)(2)(vii)(C) and (i)(2)(vii)(D) of this
              1

              Newly redesignated (i)(2)(xi)(C)
              paragraph (i)(2)(i)(B)(1) of
              paragraph (i)(2)(i)(B) of
              1

              (j)(1)(iii)(B)(2)(i)
              at paragraphs (i)(2)(x)(A)(1)(iii) and
              at paragraphs (i)(2)(xi)(A)(1)(iii) and
              1

              (j)(1)(iii)(B)(2)(ii)
              at paragraph (i)(2)(x)(C)
              at paragraph (i)(2)(xi)(C)
              1

              (j)(1)(iii)(B)(3)
              and (i)(2)(x)(C)
              and (i)(2)(xi)(C)
              1

              (j)(1)(iii)(B)(4)(ii)
              the candidate failed the training; whether
              the candidate failed the training and whether
              1

              (j)(1)(iii)(B)(4)(ii)
              in the form of an IAD denying
              in the form of a written determination denying
              1

              (j)(3)(iii)
              will issue a written IAD to the observer
              will issue a written initial administrative determination (IAD) to the observer
              1

      [FR Doc. E9-23606 Filed 9-29-09; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R09-OAR-2007-0621; FRL-8497-4]
        Revisions to the California State Implementation Plan, South Coast Air Quality Management District

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions concern particulate matter (PM) emissions from fugitive dust sources and cement manufacturing plants. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

          DATES:
          Any comments must arrive by December 20, 2007.

          ADDRESSES:
          Submit comments, identified by docket number EPA-R09-OAR-2007-0621, by one of the following methods:
          1. Federal eRulemaking Portal:
            www.regulations.gov. Follow the on-line instructions.
          2. E-mail:
            steckel.andrew@epa.gov.
          3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

            Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or e-mail. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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.

            Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

          FOR FURTHER INFORMATION CONTACT:

          Jerry Wamsley, EPA Region IX, at either (415) 947-4111, or wamsley.jerry@epa.gov.

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

        Table of Contents

          I. The State's Submittal
          A. What rules did the State submit?
          B. Are there other versions of these rules?
          C. What is the purpose of the submitted rules?
          II. EPA's Evaluation and Action
          A. How is EPA evaluating the rules?
          B. Do the rules meet the evaluation criteria?
          C. EPA Recommendations To Further Improve the Rule
          D. Public Comment and Final Action
          III. Statutory and Executive Order Reviews

        I. The State's Submittal
        A. What rules did the State submit?
        Table 1 lists the rules we are proposing to approve with the dates that they were adopted by the SCAQMD and submitted by the California Air Resources Board.

          Table 1.—Submitted Rules

            Local agency
            Rule No.
            Rule title
            Adopted
            Submitted

            SCAQMD
            403
            Fugitive Dust
            06/03/05
            10/20/05

            SCAQMD
            1156
            Further Reductions of Particulate Emissions from Cement Manufacturing Facilities
            11/04/05
            12/29/06

        On November 22, 2005 and February 14, 2007, respectively, EPA found Rules 403 and 1156 met the completeness criteria in 40 CFR Part 51, Appendix V. The state must meet these criteria before formal EPA review can begin.
        B. Are there other versions of these rules?
        EPA has reviewed, approved, and incorporated into the SIP a prior version of Rule 403 (see 70 FR 69081, November 14, 2005). California has not submitted any subsequent versions of Rule 403. Regarding Rule 1156, California has not submitted a prior version for incorporation into the SIP.
        C. What is the purpose of the submitted rules?
        PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control PM emissions.
        SCAQMD Rule 403 is designed to limit the emissions of fugitive dust or PM from a variety of activities and sources such as construction sites, bulk material hauling, unpaved parking lots, and disturbed soil in open areas and vacant lots. The rule's provisions include a visible emissions property line standard, requirements to implement Best Available Control Measures (BACM), upwind/downwind PM10 concentration standards, prevention of material track-out onto paved public roads, and special control requirements for large operations (sources greater than 50 acres or with more than 5,000 cubic yards of daily earth-movement). The June 3, 2005 amendments to Rule 403 added BACMs for confined animal feed operations (CAFO) to the rule and amended requirements for weed abatement activities. The new CAFO BACMs apply to manure and feedstock handling, disturbed surfaces, unpaved roads, and equipment parking areas (see the Staff Report Table 1, page 8). The amended requirements for weed abatement activities allow for discing weeds without applying water where the authorized agency determines that watering is not feasible and other effective control measures are used to minimize fugitive emissions and stabilize disturbed soils. Discing activities that meet these requirements are exempt from Rule 403.
        SCAQMD Rule 1156 is designed to limit PM from cement manufacturing facilities. Rule 1156 establishes requirements and control measures for the following: (1) Visible emissions; (2) material loading, unloading, and transferring; (3) material crushing, screening, grinding, blending, drying, mixing, packaging, and other related operations; (4) kilns and clinker coolers; (5) material storage; (6) air pollution control device performance standards; (7) internal roadways and vehicle use areas; and, (8) material track-out. The rule also has provisions for monitoring and determining compliance, recordkeeping, and exemptions from the rule.
        EPA's technical support documents (TSD) have more information about these rules.
        II. EPA's Evaluation and Action
        A. How is EPA evaluating the rules?
        Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). In addition, SIP rules must implement Reasonably Available Control Measures (RACM), including Reasonably Available Control Technology (RACT), in moderate PM nonattainment areas, and Best Available Control Measures (BACM), including Best Available Control Technology (BACT), in serious PM nonattainment areas (see CAA sections 189(a)(1) and 189(b)(1)). The SCAQMD regulates a PM nonattainment area classified as serious (see 40 CFR part 81), so both of these rules must implement BACM/BACT.
        Guidance and policy documents that we use to help evaluate specific enforceability and RACM/RACT or BACM/BACT requirements consistently include the following:
        1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

        2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register.
        3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
        4. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
        5. “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994).
        6. “PM-10 Guideline Document,” EPA 452/R-93-008, April 1993.
        7. “Fugitive Dust Background Document and Technical Information Document for Best Available Control Measures,” EPA 450/2-92-004, September 1992.
        B. Do the rules meet the evaluation criteria?
        We believe these rules are consistent with the relevant policy and guidance regarding enforceability, BACM, and SIP relaxations. Each rule is discussed below.
        Under Rule 403, the weed abatement amendments provide added control measures for weed abatement activities that are allowed an exemption because it is infeasible to water prior to discing or mowing. Those weed abatement operations that do not use water are subject to disturbed open area stabilization requirements and the rule's fence-line opacity requirement. Also, any added PM emissions that may occur as a result of the exemptions are offset within the SIP by the reduced PM emissions generated by the new CAFO requirements. Consequently, we find that the revisions to Rule 403 do not relax the SIP or interfere with any applicable requirements of the Act.
        Rule 1156 is a new rule that strengthens the SIP by requiring additional BACM and MSMs for cement manufacturing facilities. As such, it will not interfere with any applicable requirements concerning attainment and reasonable further progress, or any other applicable requirements of the Act. Therefore, approval of this rule is consistent with CAA 110(l). Because this rule does not modify any control requirements in effect prior to November 15, 1990, section 193 of the Act does not apply to our action.
        The TSD has more information on our evaluation of these rules.
        C. EPA Recommendations To Further Improve the Rule
        The TSD for Rule 403 describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the SCAQMD modifies the rule.
        D. Public Comment and Final Action

        Because EPA believes the submitted rules fulfill all relevant requirements, we are proposing to fully approve them as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period that causes us to reconsider this proposed approval action, we intend to publish a final approval action that will incorporate these rules into the federally enforceable SIP.
        III. Statutory and Executive Order Reviews

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
        This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

        In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

          Dated: November 2, 2007.
          Laura Yoshii,
          Acting Regional Administrator, Region IX.

      [FR Doc. E7-22658 Filed 11-19-07; 8:45 am]
      BILLING CODE 6560-50-P