        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-1990-0011; FRL-9646-1]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Ellsworth Air Force Base Superfund Site

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule; notice of intent.

          SUMMARY:
          The Environmental Protection Agency (EPA) Region 8 is issuing a Notice of Intent to Delete Operable Unit (OU) 1 the former Fire Protection Training Area (FPTA), along with two other Areas of Concern (AOC): The Gateway Lake Ash Study Area and the Pride Hangar Study Area of the Ellsworth Air Force Base (AFB) Superfund Site located in Meade and Pennington Counties, South Dakota, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of South Dakota, through the Department of Environment and Natural Resources, have determined that all appropriate response actions at these identified parcels under CERCLA other than five year reviews have been completed. However, this deletion does not preclude future actions under Superfund.
          This partial deletion pertains to the surface soil, unsaturated subsurface soil, surface water and sediments of Operable Unit (OU) 1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area. The groundwater medium associated with OU-11, Basewide Groundwater, will remain on the NPL and is not being considered for deletion as part of this action. The other OUs associated with Ellsworth AFB were deleted in 2006.

          DATES:
          Comments must be received by April 12, 2012.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1990-0011, by one of the following methods:
          • http://www.regulations.gov. Follow on-line instructions for submitting comments.
          • Email: dalton.john@epamail.epa.gov.

          • Fax: 303-312-6961.
          • Mail: Mr. John Dalton, Community Involvement Coordinator (8OC), U.S. EPA, Region 8, 1595 Wynkoop St., Denver, CO 80202.
          • Hand delivery: 1595 Wynkoop St., Denver, CO 80202. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-1990-0011. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:
          U.S. EPA Records Center, Region 8, 1595 Wynkoop Street, Denver, CO 80202-1129, (303) 312-6312, Hours: Mon-Fri, 8:30 a.m. to 5 p.m.
          South Dakota Air & Space Museum,  2890 Davis Drive, Building 5208, Ellsworth AFB, SD 57706, (605) 385-5188, Hours: Mon-Fri, 7 a.m. to 4 p.m.

          FOR FURTHER INFORMATION CONTACT:

          Mark Aguilar, Remedial Project Manager, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, CO 80202-1195, (303) 312-6251, email: aguilar.mark@epamail.epa.gov.

        SUPPLEMENTARY INFORMATION:

        Table of Contents

          I. Introduction
          II. NPL Deletion Criteria
          III. Deletion Procedures
          IV. Basis for Partial Site Deletion

        I. Introduction
        EPA Region 8 announces its intent to delete OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area of the Ellsworth AFB Superfund Site, from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Ellsworth AFB Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List, 60 FR 55466 (Nov. 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.

        EPA will accept comments on the proposal to partially delete this site for thirty (30) days after publication of this document in the Federal Register.
        Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area of the Ellsworth AFB Superfund Site and demonstrates how they meet the deletion criteria.
        II. NPL Deletion Criteria
        The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
        i. Responsible parties or other persons have implemented all appropriate response actions required;
        ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
        iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
        Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
        III. Deletion Procedures
        The following procedures apply to deletion of OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area of the Site:
        (1) EPA consulted with the State before developing this Notice of Intent for Partial Deletion.
        (2) EPA has provided the state 30 working days for review of this notice prior to publication of it today.
        (3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.
        (4) The State of South Dakota, through the Department of Environment and Natural Resources, has concurred with the deletion of OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area of the Ellsworth AFB Superfund Site, from the NPL.

        (5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the Federal Register, a notice is being published in a major local newspaper, the Rapid City Journal. The newspaper announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.
        (6) The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

        If comments are received within the 30-day comment period on this document, EPA will evaluate and respond accordingly to the comments before making a final decision to delete OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area of the Ellsworth AFB Superfund Site, the Regional Administrator will publish a final Notice of Partial Deletion in the Federal Register. Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and included in the site information repositories listed above.

        Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
        IV. Basis for Partial Site Deletion
        The following information provides EPA's rationale for deleting OU-1, the Gateway Lake Ash Study Area, and the Pride Hangar Study Area of the Ellsworth AFB Superfund Site from the NPL.
        Site Background and History
        The Ellsworth AFB Superfund Site (CERCLIS ID #SD2571924644), is a United States Air Force Air Combat Command installation located 12 miles east of Rapid City, South Dakota, and adjacent to the small community of Box Elder. Ellsworth AFB is located within the following Sections, Townships, and Ranges, in Pennington and Meade Counties, South Dakota:
        Sections 35 and 36, Township 3 North, Range 8 East, Meade County;
        Section 31, Township 3 North, Range 9 East, Meade County;
        Sections 1, 2, 11, 12, 13, Township 2 North, Range 8 East, Pennington and Meade Counties; and
        Sections 5, 6, 7, 8, 17, 18, 19, Township 2 North, Range 9 East, Pennington and Meade Counties.
        The main Air Base covers approximately 4,858 acres within Meade and Pennington counties and includes runways, airfield operations, industrial areas, housing, and recreational facilities.
        The site was officially activated in July 1942 as the Rapid City Army Air Base, a training facility for B-17 bomber crews. Ellsworth AFB has been the headquarters of operations for a variety of aircraft, the Titan I Intercontinental Ballistic Missile system and the Minuteman I and Minuteman II missile systems. Ellsworth AFB has historically provided support, fueling, training, maintenance, and/or testing facilities.
        Operations at Ellsworth AFB over the years generated a variety of waste materials including municipal solid waste, wastewater treatment plant sludge, industrial wastes including waste oils, solvents, paints, spilled fuels, waste pesticides, shop waste, metal remains from ordnance disposal (shell casings and bomb fragments but not unexploded ordnance) and radiological wastes. Contaminants of concern at Ellsworth AFB include chlorinated solvents, waste fuels, and metals.
        Ellsworth AFB was proposed for listing on the NPL October 26, 1989 (54 FR 43779), placed on the NPL August 30, 1990 (55 FR 35509), and is therefore subject to the provisions of Section 120 of CERCLA, 42 U.S.C. 9620. At that time, the entire base, approximately 4,858 acres, was included in the listing (“fence line to fence line”). The Department of Defense, EPA and the State of South Dakota entered into a Federal Facilities Agreement (FFA) which formalizes the process for environmental response actions and the relative roles of the Air Force, EPA and the State of South Dakota under CERCLA and the Installation Restoration Program (IRP). The FFA was signed by the Air Force, the EPA, and the State of South Dakota in January 1992 and became effective on April 1, 1992.
        Upon listing, the facility began identifying sites where activities involving hazardous substances may have occurred. The sites requiring further investigations were grouped into Operable Units (OUs). Twelve OUs were identified at Ellsworth AFB. The OUs include: OU-1, Fire Protection Training Area; OU-2, Landfills Nos. 1 and 6; OU-3, Landfill No. 2; OU-4, Landfill No. 3; OU-5, Landfill No. 4; OU-6, Landfill No. 5; OU-7, Weapons Storage Area; OU-8, Explosive Ordnance Disposal Area; OU-9, Old Hobby Shop Area; OU-10, North Hangar Complex; OU-11, Basewide Groundwater; and OU-12, Hardfill No. 1. Records of Decision (RODs) were finalized for all of these OUs between October 1995 and April 1997.
        Surface soil, unsaturated subsurface soil, surface water, and sediments at OU-2, OU-3, OU-4, OU-5, OU-6, OU-7, OU-8, OU-9, OU-10 and OU-12 (approximately 542 acres) and the surface soil, unsaturated subsurface soil, surface water and sediment media of an additional 4,300 acres not associated with an operable unit were deleted from the NPL December 4, 2006 (71 FR 70318).
        Four areas not deleted in 2006 were OU-1 (all media), OU-11 (Basewide Groundwater) [including all groundwater plumes located within the Base boundary and those described as emanating from the Base], and two Areas of Concern: the Gateway Lake Ash Study Area and the Pride Hangar Study Area. Appropriate response actions for soil media have since been completed at OU-1, the Pride Hangar Study Area and the Gateway Lake Ash Study Area. The remedial investigation/feasibility study (RI/FS) process did not identify any unacceptable risks for surface water and sediment at these areas. Therefore, remedial actions were not required for surface water and sediment.
        The portions of the Ellsworth AFB Site to be deleted from the NPL are:
        • Surface soil, unsaturated subsurface soil, surface water and sediment media at OU-1 [generally described by the following coordinates: N667749.88/E1242611.11; N667496.84/E1242812.29; N667330.75/E1242852.01; N666933.49/E1242558.40; N667158.53/E1242265.75; N667787.47/E1242276.80; N667749.88/E1242611.11]
        • Gateway Lake Ash Study Area [generally described by the following coordinates: N667944.01/E1248056.74; N667694.15/E1248058.87; N667695.57/E1247811.84; N667947.55/E1247834.49; N667944.01/E1248056.74]
        • Pride Hangar Study Area [generally described by the following coordinates: N673538.32/E1243066.96; N673267.45/E1243270.27; N673228.21/E1243223.95; N673113.04/E1243308.87; N673021.04/E1243204.65; N673409.00/E1242911.91; N673538.32/E1243066.96].
        OU-1 consists of the former Fire Protection Training Area (FPTA), Pond 001, and a portion of the drainage channel that leads into Pond 001. The former FPTA is approximately 10 acres in size and is located in the southwestern portion of Ellsworth AFB. The FPTA was operated by the Ellsworth AFB at this location from 1942 to 1990. The location of the burn area within the former FPTA has changed several times over the years. Aerial photographs of Ellsworth AFB show numerous areas of staining presumed to be a result of the fire training activities within the former FPTA. The training exercises conducted at the FPTA involved simulation of aircraft fires and spills and consisted of dispersing various fuels, oils and solvents within the burn pit area and subsequently igniting and extinguishing the fire. Extinguishing chemicals used during the fire-training exercises have included aqueous-film-forming-foam, halon, protein-foams, carbon dioxide, dry chemicals and chlorobromomethane.
        The Gateway Lake Ash Study Area is located in the southeast portion of Ellsworth AFB. The site is located in a low area approximately 400 feet south of Gateway Lake and north of the Ellsworth AFB wastewater treatment facility. The area is generally level open terrain that is grass covered and bounded on the north by trees and on the east by an unnamed creek. To the west is the entrance road to the Base's wastewater treatment plant and to the south is the wastewater plant.

        The open land that contains the Gateway Lake Ash Study Area had come under consideration for construction of a new building when soils at the proposed building site were assessed. Two exploratory geotechnical borings were drilled in August 2002 that encountered ash debris and glass material. Further evaluation provided information that the area was once an open ravine which had been filled with ash and debris. An incinerator to the south was identified as a potential source of the fill debris. Over time, the area had been graded and a portion within the fenced boundary of the wastewater treatment facility had been seeded with grass. Except for the planted trees to the north, the remaining area has since grown over with natural grass and shrubs.
        The Pride Hangar Study Area is located at the northwest corner of the Pride Hangar within OU-11 and covers approximately 1.7 acres. Two former side-by-side waste solvent underground storage tanks located on the northwest corner of the Pride Hangar were the primary source of a TCE plume known as the Pride Hangar plume. These tanks were removed in 1992.
        A map identifying the areas to be deleted is available in the partial deletion docket. The groundwater medium at the Ellsworth AFB Site (OU-11, Basewide Groundwater) will remain on the NPL and response activities will continue for that OU.
        Operable Unit 1
        An extensive RI was conducted to characterize site conditions at OU-1 in 1993 and 1994. The program included completion of boreholes, installation of monitoring wells, geotechnical analysis of soil samples, ecological investigations, assessment of human health risks, and review and compilation of previous IRP investigations. Collection and laboratory analysis of soil, groundwater, surface water, and sediment samples were included in the RI field program.
        Soil impacted by past activities at OU-1 extends from the surface to the capillary fringe beneath the former FPTA. The nature of the soil contamination at OU-1 soils included JP-4 (jet fuel), benzene, toluene, ethylbenzene and xylene (BTEX), and chlorinated volatile organic compounds (VOCs). JP-4 contamination was in a range of hundreds of thousands to millions of micrograms per kilogram (µg/kg) in vadose zone and capillary fringe soils. Total BTEX contamination was in a range of non-detect (ND) to hundreds of thousands of µg/kg in vadose zone soils, and thousands to tens of thousands of µg/kg in capillary fringe soils. Total chlorinated VOCs contamination was in a range of ND to tens of µg/kg in vadose zone soils, and ND to hundreds of µg/kg in capillary fringe soils.
        A baseline risk assessment indicated that the soils of the burn-pit area posed an unacceptable risk, primarily from the potential for contaminating the underlying groundwater. Risks from exposure to pesticides and dioxins/furans in surface and subsurface soils at OU-1 were well below the acceptable range and did not warrant remediation. Contaminants in surface water and sediment included VOCs, semi-volatile organic compounds (SVOC), pesticides, one phthalate, one polynuclear aromatic hydrocarbon and inorganics including cyanide, thallium, mercury, arsenic, manganese and nickel. However, it was determined in the risk assessment that the levels of these contaminants fell within the acceptable risk range, and therefore, no remedial action was warranted for surface water or sediment.
        A Final ROD for an Interim Remedial Action (IRA) for OU-1 was signed in May 1995. The objective of the IRA at OU-1 is to reduce the immediate risks posed by the contaminants in the deeper subsurface soils of the burn-pit areas of the FPTA and to prevent the movement of contaminants to shallow ground-water. The interim remedy included soil vapor extraction (SVE), groundwater removal using wells and an existing interceptor trench, treatment of groundwater, condensate, and soil gas, and surface water discharge of treatment effluent. Only the SVE system pertains the media being proposed for deletion. The SVE system consisted of four dual phase extraction wells and eight soil vapor extraction wells, and a soil vapor blower with soil gas treated by thermal oxidation before discharge.
        The OU-1 SVE system began operation in March 1996 and operated until the final remedy was implemented. The thermal oxidizer was operated from March 1996 to November 1996 when blower discharge contaminant levels were low enough to discharge to the atmosphere.
        The 1995 Feasibility Study for OU-1 recommended expanding the IRA SVE system to remove volatile organic chemicals from source area soils. A Final ROD for Remedial Action at OU-1 was signed in May 1996. The remedial action objectives (RAOs) are: (1) The cleanup of ground water to regulatory levels and, for contaminants where regulatory levels are not available, to levels considered safe for public drinking water, and (2) the cleanup of source area soils to levels that would not pose a threat of contaminating ground water. The selected remedial action included: continued operation of the IRA SVE system to remediate a portion of the source area soils; use of groundwater wells and an existing collection trench to remove contaminated groundwater in the source area; installation and use of additional SVE wells, groundwater wells and/or collection trenches; treatment of soil gas and contaminated groundwater at the IRA treatment plant; implementing institutional controls (deed and land use restrictions) to restrict the future use of the area while the remedy is being implemented; and providing for long-term monitoring and maintenance. Only the SVE system and the institutional controls apply to the media being proposed for deletion.
        The Final ROD set cleanup goals for four VOCs identified for remediation in soil: benzene (10 µg/kg), 1,2-dichloroethylene (DCE) (41 µg/kg), tetrachloroethylene (PCE) (10 µg/kg), and trichloroethylene (TCE) (10 µg/kg). Cleanup goals for these four VOCs were based on model estimates for the protection of groundwater. Where model estimates were less than standard detection limits, remediation cleanup goals were based on standard detection limits. Remediation of jet fuel in the soil at OU-1 was also required because concentrations of jet fuel and related components exceeded State of South Dakota regulations. Cleanup goals for petroleum related contamination were set at: JP-4 (500,000 µg/kg), toluene (15,000 µg/kg), ethylbenzene (10,000 µg/kg), xylene (300,000 µg/kg), and naphthalene (25,000 µg/kg).
        An additional SVE blower, seven dual phase extraction wells, a dual phase extraction trench and four soil vapor extraction wells were installed as part of the Final Remedial Action. The IRA system was incorporated into the final remedy. Construction of the remedial action was completed in June 1997.

        This alternative included institutional controls, implemented August 27, 1997, to prevent human exposure to contaminated soil and groundwater. These controls include: (1) Issuing a continuing order to restrict on-site worker access to contaminated soil, and to restrict or control temporary construction activities unless proper protective equipment is worn; (2) filing a notice with the State to recommend denial of water appropriation permit applications to install groundwater wells within the area of contamination and any area which may be effected by potential contaminants; (3) filing a notice to the deed detailing the restrictions of the continuing order and groundwater well restrictions; and (4) a covenant to the deed in the event of property transfer. The continuing order is reissued with 5-year reviews and the most recent is dated August 5, 2010.
        Operation and maintenance of the SVE system included collecting samples at the blower stacks and calculating mass removals, measurements of individual well vacuums and contaminant levels, and blower vacuum. Based on these measurements, operation of the SVE wells and the SVE component of dual phase wells were optimized by applying vacuum to the points of highest contaminant concentration. Based on system monitoring, one SVE blower was shut off in March 2000 and operation of one SVE blower was focused on wells with the highest contaminant concentration. Two additional dual phase extraction wells were installed in June 2003 and began operation in October 2003 to address free product and improve groundwater plume containment.
        SVE operation continued until July 2007. SVE operation was suspended in 2007 because monitoring data showed that SVE contaminant mass removal rates had diminished significantly and the removal rates remained low.
        A high vacuum extraction system (HVE) was operated from May to November 2007 and from May to November 2008. The HVE system operated at 15 wells (nine monitoring wells and six dual extraction wells) with the primary purpose of removing residual free product. Operation and maintenance of the HVE system included measuring hydrocarbon concentrations in the vapor discharge, measurement of vacuum at individual wells and at the vacuum blower, and drawdown at individual wells. Operation of the HVE system was suspended in November 2008 after free product was no longer observed at any of the wells on site.
        A bioventing system was operated at OU-1 from November 2008 through August 2010 to enhance the biological degradation of fuel-related contaminants BTEX; naphthalene; and total petroleum hydrocarbons as gasoline-range organics [GRO] and diesel-range organic [DRO]) in the vadose zone soils. Bioventing was designed to replace the SVE system and utilized existing SVE wells, dual extraction wells, and associated piping. Fifteen SVE and dual extraction wells were used in the bioventing system. Operation and maintenance of the bioventing system included measuring oxygen and carbon dioxide levels in bioventing wells, and recording pressure, temperature and flow from the blower.
        Post one year bioventing soil samples were collected in January 2010 at six boring locations where soil samples collected in 1989 or 1993 had exceeded OU-1 soil cleanup goals. Analytical results from vadose zone soils for ethylbenzene, naphthalene, toluene and xylene at the six borings were all below reporting limits (6.9 µg/kg maximum) and below cleanup goals based on State Regulations for each compound (ethylbenzene 10,000 µg/kg, naphthalene 25,000 µg/kg, toluene 15,000 µg/kg, and xylene 300,000 µg/kg). The maximum DRO result from the vadose zone soil samples was 210,000 µg/kg and the maximum GRO result from the vadose zone soil samples was 1,700 µg/kg, both below the cleanup goal of 500,000 µg/kg for JP-4 in soil based on State Regulation.
        With respect to the contaminants of concern cis-1,2-DCE, benzene, PCE, and TCE, the analytical results in the vadose zone showed the concentrations were all below reporting limits, which were below the cleanup goals established in the Final ROD. These data demonstrate the cleanup goals have been met.
        The 2010 5-year review recommend evaluating existing data to determine if partial deletion of surface soil, unsaturated subsurface soil, surface water and sediment from OU-1 is appropriate. Subsequent data evaluation indicated that unsaturated soils met the cleanup levels documented in the ROD and is protective of groundwater. The next five year review is scheduled for the year 2015.
        Gateway Lake Ash Study Area
        Electromagnetic survey data from the August 2003 Draft Preliminary Assessment/Site Investigation (PA/SI) Report indicated the areal extent of the ash and debris was approximately 1/3 acre. Field observations and soil borings indicated the ash and debris were 6 to 7.5 feet in thickness and typically encountered within one foot of the surface.
        The PA/SI reported contaminants in the ash and debris and soils including VOCs, SVOCs, metals and dioxins/furans. Detected results were compared to the USEPA Region 3 Risk Based Concentrations (RBCs). The industrial soil screening value at a 1x 10-6 risk level was used for dermal and inhalation risk and the dilution attenuation factor (DAF) of 20 was used for evaluating the soil to groundwater migration pathway. Detected metal concentrations were compared to regional concentration ranges as established in the RI Report for nearby OU-6.
        Three VOCs were detected in the ash and debris but concentrations did not exceed industrial or DAF 20 values. Five SVOCs (1,4-dichlorobenzene, 2,4-dintrotoluene, 4-nitrophenol, N-nitrosodi-N-propylamine, and 1,2,4-trichlorbenzene) exceeded DAF 20 standards and one SVOC (N-nitrosodi-N-propylamine) exceeded industrial soil standards in the ash and debris. Four VOCs and one SVOC were detected in the soil beneath the ash and debris but concentrations did not exceed industrial or DAF 20 screening levels. Low concentrations of VOCs and SVOCs in the underlying soils indicated the contaminants in the buried ash and debris did not greatly impact the underlying soils.
        Metals were detected in the ash and debris with arsenic exceeding RBCs but within the range of background concentration in surrounding soils. Arsenic and mercury exceeded both industrial and DAF 20 screening levels. Manganese exceeded the DAF 20 screening level in the underlying soil but was considered to be within background ranges. Toxicity Characteristic Leaching Potential metals and pH analysis indicated the ash and debris material was non-hazardous. Results for dioxins/furans indicated the maximum concentration in the ash and debris was below screening criteria and similar to background concentrations. Based on the characterization of the ash and debris and no evidence of contaminant migration under the debris or outside the buried debris limits, no further actions were recommended. No RI or FS was completed for the Gateway Lake Ash Study Area soils.
        The Air Force, independent of CERCLA, determined that the ash material should be removed from the site and disposed properly at a licensed land disposal facility (the Rapid City Landfill). In January 2007, 4,310 cubic yards of ash material was hauled to the Rapid City Landfill and used as daily cover material. Confirmation sampling of underlying soils for SVOCs detected one SVOC compound, bis(2-ethylhexyl)phthalate, at 74 µg/kg, that was below the DAF 20 value of 2,889,000 µg/kg for that compound. The excavated area was restored by backfilling with clean soil from stockpiles and excavations on Base, and reseeding the site. The characterization of the ash and debris, removal of the ash debris from the site, and results from confirmation sampling in the underlying soil demonstrate that the site is clean.

        The Gateway Lake Ash Study Area overlies OU-11, Basewide Groundwater. As a result, the institutional controls for OU11 apply to this area. The ICs selected in the 1997 OU11 ROD included (1) issuing a continuing order (by the Installation Commander) to restrict or place limitations on the installation of any new groundwater wells; (2) filing a notice in environmental and real estate records at the Base or Installation, detailing the restrictions of the continuing order and groundwater well restrictions; and (3) compliance with the provisions of CERCLA Section 120(h)(3) or other applicable statutory requirements in the event of property transfer. These ICs were implemented August 27, 1997.
        The Gateway Lake Ash Study Area was addressed in the 2010 Five Year Review as an area not deleted during the previous partial deletion. No recommendations were made regarding the Gateway Lake Ash Study Area in the 2010 Five Year Review. The next five year review is scheduled for the year 2015.
        Pride Hangar Study Area
        The Pride Hangar Study Area is located at the northwest corner of the Pride Hangar within OU-11 Area 1 and covers approximately 1.7 acres. Two former side-by-side waste solvent underground storage tanks located on the northwest corner of the Pride Hangar were the primary source of a TCE plume known as the Pride Hangar plume. These tanks were removed in 1992. A soil sample was collected from near the floor of the tank excavation (10 feet below ground surface) in1993 and analyzed for VOC. TCE was reported at 0.09 mg/kg.
        During the 1994 RI for OU-11 Basewide Groundwater, a groundwater sample collected near the tank site contained total 1,2-DCE at 11 µg/L, chloroform at 1,580 µg/L, TCE at 6,800 µg/L and JP-4 at 270 µg/L. A soil boring at that same location was non-detect for VOCs and SVOCs in the capillary fringe. The FS for OU-11 Basewide Groundwater Area 1 recommended, and the OU-11 ROD specified groundwater extraction and treatment in OU-11 Area 1. A vacuum extraction system was installed to extract contaminated groundwater and operated southeast (downgradient) of the Pride Hangar from 1997 to 2006. No RI or FS was completed for soils at the Pride Hangar Study Area.
        Additional soil sampling was completed at the Pride Hangar Study Area in 2002. In eleven vadose zone soil samples, TCE results ranged from <5 µg/kg to 120 µg/kg and cis-1,2-DCE was detected in only one sample at 40 µg/kg. The September 3, 2003 Serial Letter 1-54-RA-301, Pride Hangar Source Remediation Recommendation, recommended SVE to remove chlorinated VOCs in the vadose zone at the Pride Hangar Study Area. This action was implemented and consisted of SVE pilot testing in May 2004 and intermittent operation of the SVE system from July to November 2004. The SVE system consisted of an SVE blower, eight SVE wells, and temporary above-ground piping. Operation and maintenance of the SVE system included monitoring vacuum at the wells and blower, and vapor flow rate at the blower. The SVE system was shut down due to the potential aeration of groundwater and its detrimental effect on anaerobic groundwater treatment implemented in 2004. A 2007 Explanation of Significant Differences allowed for continued use of the SVE system at the Pride Hangar Study Area even but the SVE system was not operated again.
        Vadose zone soil samples were collected from direct push borings in the Pride Hangar Study Area in 2010. Soil samples included samples collected in the vadose zone at the depths where chlorinated VOC concentrations were highest in 2002. TCE concentrations in vadose zone samples were all non-detect except for three detections at concentrations of 0.58, 0.52 and 0.52 µg/kg. These TCE contaminant concentrations are above the most conservative EPA Regional Screening Level for protection of groundwater for TCE but are within the acceptable risk range given the change in the TCE toxicity value. Cis-1,2-DCE concentrations in vadose zone samples were all non-detect except for one detection of 0.81 µg/kg. This cis-1,2-DCE concentration is below the EPA Regional Screening Level for protection of groundwater for cis-1,2-DCE of 21 µg/kg for a DAF of one. These vadose zone soil sample results, reported in the August 2011 Pride Hangar Vadose Zone Soil Sample Results technical memorandum, indicated a significant source of contaminated soil no longer existed.
        The Pride Hangar Study Area overlies OU-11, Basewide Groundwater. As a result, the institutional controls for OU11 apply to this area. The ICs selected in the 1997 OU11 ROD included (1) issuing a continuing order (by the Installation Commander) to restrict or place limitations on the installation of any new groundwater wells; (2) filing a notice in environmental and real estate records at the Base or Installation, detailing the restrictions of the continuing order and groundwater well restrictions; and (3) compliance with the provisions of CERCLA Section 120(h)(3) or other applicable statutory requirements in the event of property transfer. These ICs were implemented 27 August 1997.
        The Pride Hangar Study Area was addressed in the 2010 Five Year Review as an area not deleted during the previous partial deletion. No recommendations were made regarding the Pride Hangar Study Area in the 2010 Five Year Review. The next five year review is scheduled for the year 2015.
        Community Involvement
        Community involvement activities that have taken place include publishing the FFA and RODs for public comment, establishing and maintaining an Administrative Record, and formation of a Restoration Advisory Board (RAB) to facilitate input in the cleanup process. The RAB includes Ellsworth AFB, EPA and SDDENR oversight personnel as well as community leaders and local representatives from the surrounding area. RAB meetings are held twice each year, normally in May and November.
        Determination That the Criteria for Deletion Have Been Met
        EPA, with concurrence from the State of South Dakota, through the Department of the Environment and Natural Resources, by a letter dated November 22, 2011, has determined that no additional response is necessary at Ellsworth AFB for surface soil, unsaturated subsurface soil, and surface water and sediment media at OU-1, the Gateway Lake Ash Study Area and the Pride Hangar Study Area. Responsible parties have completed all appropriate response actions required and the unsaturated subsurface soil is cleaned up at OU-1 and the Pride Hangar Study Area. Investigation of the Gateway Lake Ash Study Area showed that it posed no significant threat to public health or the environment and removal of the debris eliminated any potential threat, therefore, the taking of remedial measures is not appropriate. Therefore, EPA is proposing to delete these portions of the Ellsworth AFB Site.

        EPA Region 8 has followed the procedures required by 40 CFR 300.425(e). The EPA has consulted with the State of South Dakota and provided the state 30 working days for review of this notice prior to publication. The State, through the Department of Environment and Natural Resources has concurred with the deletion of surface soil, unsaturated subsurface soil, and surface water and sediment media at OU-1, the Gateway Lake Ash Study Area and the Pride Hangar Study Area from the Ellsworth AFB Superfund Site. Concurrent with the publication of the Notice of Intent for Partial Deletion in the Federal Register, a notice is being published in The Rapid City Journal. The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket, and made these items available for public inspection and copying at the Site information repositories.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

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

          Dated: February 8, 2012.
          James B. Martin,
          Regional Administrator, Region 8.

      [FR Doc. 2012-6031 Filed 3-12-12; 8:45 am]
      BILLING CODE 6560-50-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Parts 1 and 27
        [RM-11395, GN Docket No. 12-268, WT Docket Nos. 14-170, 05-211; DA 14-1784]
        Updating Competitive Bidding Rules; Extension of Comment and Reply Comment Periods

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rules; extension of comment and reply comment deadlines.

          SUMMARY:

          The Wireless Telecommunications Bureau extends the deadline for filing comments and reply comments on its Competitive Bidding Notice of Proposed Rulemaking (Competitive Bidding NPRM), which sought comment on the revision of certain part 1 competitive bidding rules and provided notice of the Commission's intention to resolve longstanding petitions for reconsideration.

          DATES:
          Comments are due on or before January 23, 2015, and reply comments are due on or before February 12, 2015.

          ADDRESSES:
          You may submit comments to the Competitive Bidding NPRM, identified by GN Docket No. 12-268 and WT Docket Nos. 14-170, 05-211, by any of the following methods:

            Electronic Filers: Federal Communication Commission's Electronic Comments Filing System (ECFS): http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments.

            Paper Filers: All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. Eastern Time (ET). All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

            People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, or audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

          FOR FURTHER INFORMATION CONTACT:
          Wireless Telecommunications Bureau, Auctions and Spectrum Access Division: Leslie Barnes at (202) 418-0660.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Wireless Telecommunications Bureau's Order (Order) in GN Docket No. 12-268, DA 14-1784, adopted and released on December 8, 2014. The complete text of this document is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. ET Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), telephone 202-488-5300, facsimile 202-488-5563, or by contacting BCPI on its Web site: http://www.BCPIWEB.com. The complete text is also available on the Commission's Web site at http://wireless.fcc.gov, or by using the search function on the ECFS Web page at http://www.fcc.gov/cgb/ecfs/.

        Summary

        The Wireless Telecommunications Bureau (Bureau) released an Order on December 8, 2014, which extends the comment and reply comment filing deadlines established in the Competitive Bidding NPRM, 79 FR 68172, November 14, 2014. The Federal Communications Commission (Commission) adopted the Competitive Bidding NPRM on October 1, 2014, proposing to reform certain of its general part 1 rules governing competitive bidding for spectrum licenses to reflect changes in the marketplace. The Commission expressed its intention to act on the issues raised in the Competitive Bidding NPRM in time to allow all parties to account for any changes while planning for the broadcast incentive auction. Extending the deadlines for comments and reply comments in response to the Competitive Bidding NPRM will increase the likelihood that interested parties will be able to take into account more complete information about the results of the bidding in Auction 97 and thereby promote a more comprehensive record in the proceeding, without jeopardizing the Bureau's ability to act on the Competitive Bidding NPRM sufficiently in advance of the upcoming broadcast incentive auction. Pursuant to sections 4(i), 4(j), and 5(c) of the Communications Act of 1934, as amended, and pursuant to the authority delegated in 47 CFR 0.131 and 0.331, the Bureau extends the deadlines for filing comments and reply comments until January 23, 2015, and February 12, 2015.

          Federal Communications Commission.
          Gary D. Michaels,
          Deputy Chief, Auctions and Spectrum Access Division, WTB.

      [FR Doc. 2014-29590 Filed 12-17-14; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 070907502-7503-01]
        RIN 0648-XB01
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications

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

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS proposes a regulation to implement the annual harvest guideline (HG) for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast for the fishing season of July 1, 2007, through June 30, 2008. This HG has been calculated according to the regulations implementing the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) and establishes allowable harvest levels for Pacific mackerel off the Pacific coast.

          DATES:
          Comments must be received by October 29, 2007.

          ADDRESSES:
          You may submit comments on this proposed rule, identified by 0648-XB01 by any of the following methods:
          • E-mail: 0648-XB01.SWR@noaa.gov. Include the identifier “0648-XB01” in the subject line of the message.
          • Federal e-Rulemaking portal: http://www.regulations.gov. Following the instructions for submitting comments.
          • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
          • Fax: (562) 980-4047.
          Copies of the report Pacific Mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2007-2008 Fishing Year may be obtained from the Southwest Regional Office (see ADDRESSES).

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

        SUPPLEMENTARY INFORMATION:

        The CPS FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

        During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (Team), the Council's Coastal Pelagic Species Advisory Subpanel (Subpanel) and the CPS Subcommitee of the Scientific and Statistical Committee (SSC). At that time, the biomass, the acceptable biological catch (ABC) and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with HG recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comments, the Council makes its HG recommendation to NOAA's National Marine Fisheries Service (NMFS). The annual HG is published in the Federal Register as close as practicable to the start of the fishing season. The Pacific mackerel season begins on July 1 and ends on June 30 of each year.
        A full assessment for Pacific mackerel was conducted this year and reviewed by a Stock Assessment Review (STAR) Panel in La Jolla, CA, May 1-4. Public meetings of the Team and Subpanel were then held May 8-10 in Long Beach, CA. During these meetings the STAR Panel report and current stock assessment for Pacific mackerel, which included a preliminary biomass estimate and ABC, were presented and reviewed in accordance with the procedures of the FMP. Based on a total stock biomass estimate of 359,290 metric tons (mt), the ABC for U.S. fisheries for the 2007/2008 management season is 71,629 mt. The estimated stock biomass for the 2006/2007 season was 112,700 mt, resulting in an ABC of 19,845 mt. The increase in ABC this management season is the result of changes to the modeling parameters recommended by the STAR Panel during their review of the current stock assessment for Pacific mackerel; adjusting stock recruitment variability to be more consistent with the biology of the species and an improvement in the catch-per-unit-effort in the commercial passenger fishing vessel time series.
        In June, the Council held a public meeting in Foster City, CA, during which time they reviewed the current stock assessment, biomass numbers and ABC and heard statements from the SSC, Team and Subpanel (72 FR 29130). The SSC endorsed the assessment as the best available science for use in management. Both the Team and Subpanel recommended setting the 2007/2008 HG below ABC and no higher than 40,000 mt. This HG recommendation is still roughly double the HG adopted by the Council for the 2006/2007 fishing year (19,845 mt) and much greater than the average U.S. harvest since the year 2000 (5,700 mt). Setting the harvest guideline substantially below the ABC was recommended as a precautionary measure in response to uncertainty associated with changes to assessment modeling parameters and the reference in the FMP that the domestic fishery appears to be market limited to roughly 40,000 mt.
        Following the SSC, Team and Subpanel reports the Council adopted an HG of 40,000 mt for the 2007-2008 fishing year. The Council also adopted the Subpanel recommendation that in the event that the 40,000 mt is attained by the fishery, that Pacific mackerel fishing be closed to directed harvest and only incidental harvest be allowed. The proposed incidental fishery would be constrained to a 45 percent by weight incidental catch rate when Pacific mackerel are landed with other CPS, except that up to one metric ton of Pacific mackerel could be landed without landing any other CPS.
        The Council may schedule an inseason review of the Pacific mackerel fishery for the March or April 2008 Council meeting, in order to consider either releasing a portion of the incidental allotment to the directed fishery or further constraining incidental landings to ensure total harvest remains below the ABC.

        The size of the Pacific mackerel population was estimated using the Age-Structured-Assessment-Program (ASAP) stock assessment model. ASAP was recommended as the most appropriate framework for conducting the Pacific mackerel assessment for the 2007/2008 management year by the STAR panel which met in May of 2007 at the Southwest Fisheries Science Center in La Jolla, California. Information on the fishery and the stock assessment are found in the report Pacific mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2007-08 Fishing Season (see ADDRESSES).
        The harvest control rule formula in the FMP uses the following factors to determine the ABC:
        1. Biomass. The estimated stock biomass of Pacific mackerel age one and above for the 2007/2008 management season is 359,290 metric tons (mt).

        2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.
        3. Distribution. The portion of the Pacific mackerel biomass estimated in the U.S. EEZ off the Pacific coast is 70 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.
        4. Fraction. The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested. The FMP established this at 30 percent.
        Classification
        Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        These proposed specifications are exempt from review under Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

          The purpose of this proposed rule is to implement the 2007/2008 harvest guideline for Pacific mackerel in the EEZ off the U.S. West Coast. The CPS FMP and its implementing regulations require NMFS to set an annual harvest guideline for the Pacific mackerel fishery based on the harvest formula in the FMP. The harvest formula is applied to the current stock biomass estimate to determine the ABC, from which the harvest guideline is then derived.
          Pacific mackerel harvest is a component of the CPS fisheries off the U.S. West Coast which includes the fisheries for Pacific sardine, Northern anchovy, Jack mackerel, and Market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 N. latitude; Point Arena, California) of the fishery. Sixty-one vessels are currently permitted in the Federal CPS limited entry fishery off California. These vessels are considered small business entities by the U.S. Small Business Administration since the vessels do not have annual receipts in excess of $4.0 million. This proposed rule has an equal effect on all of these small entities and therefore will impact a substantial number of these small entities in the same manner. There would be no economic impacts resulting from disproportionality between small and large business entities under the proposed action.
          The profitability of these vessels as a result of this proposed rule is based on the average Pacific mackerel ex-vessel price per mt. NMFS used average Pacific mackerel ex-vessel price per mt to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was unavailable.
          For the 2006/2007 fishing year, the harvest guideline was set at 19,845 mt with an estimated ex-vessel value of approximately $2.7 million. Around 8,000 mt of this harvest guideline was actually harvested during the 2006/2007 fishing season valued at an estimated $1 million.
          The proposed harvest guideline for the 2007/2008 Pacific mackerel fishing season (July 1, 2007 through June 30, 2008) is 40,000 metric tons (mt). This HG recommendation is roughly double the HG adopted by the Council for the 2006/2007 fishing year (19,845 mt) and much greater than the average U.S. harvest since the year 2000 (5,700 mt). If the fleet were to take the entire 2007/2008 harvest guideline, and assuming no change in the coastwide average ex-vessel price per mt of $132, the potential revenue to the fleet would be approximately $5.3 million. However, the potential lack of availability of the resource to the fishing fleet could cause a reduction in the amount of Pacific mackerel harvested, in which case the total revenue to the fleet would be reduced. Additionally, if there is no change in market conditions (i.e., a lack in demand for Pacific mackerel product), it is not likely that the full harvest guideline will be taken during the 2007-2008 fishing year, in which case profits will be lower.
          NMFS does not anticipate a drop in profitability based on this rule due to the fact that it allows fishermen to harvest more than last year. Based on the disproportionality and profitability analysis above, this rule if adopted, will not have a significant economic impact on a substantial number of these small entities.

        As a result, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

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

          Dated: September 24, 2007.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

      [FR Doc. E7-19252 Filed 9-27-07; 8:45 am]
      BILLING CODE 3510-22-S


        AGENCY FOR INTERNATIONAL DEVELOPMENT
        48 CFR Chapter 7
        RIN 0412-AA93
        Agency for International Development Acquisition Regulation (AIDAR): Revisions to the Incentive Awards Program for Personal Services Contractors

          AGENCY:
          U.S. Agency for International Development.

          ACTION:
          Proposed rule.

          SUMMARY:
          The U.S. Agency for International Development (USAID) proposes to amend its regulation regarding incentive awards for personal services contracts with individuals. In 2004 and 2015, the USAID Administrator approved policies to authorize funding for incentive and recognition awards for personal services contracts with individuals under the Agency's authorities for such contracts. This proposed rule will allow USAID to recognize the work of an individual personal services contractor (PSC) for extraordinary performance of services under their contract by providing them with monetary or non-monetary incentive awards.

          DATES:
          Submit comments on or before May 17, 2019.

          ADDRESSES:
          Submit comments, identified by title of the Proposed Action and Regulation Identifier Number (RIN), by any of the following methods:
          1. Through the Federal eRulemaking Portal at http://www.regulations.gov by following the instructions for submitting comments.
          2. By Mail addressed to Marcelle J. Wijesinghe, USAID, Bureau for Management, Office of Acquisition & Assistance, Policy Division, Room 867-J, SA-44, 1300 Pennsylvania Ave. NW, Washington, DC 20523-2052.

          FOR FURTHER INFORMATION CONTACT:
          Richard Spencer, Telephone: 202-567-4781 or Email: rspencer@usaid.gov.

        SUPPLEMENTARY INFORMATION:

        A. Instructions

        All comments must be in writing and submitted through one of the methods specified in the Addresses section above. All submissions must include the title of the action and RIN for this rulemaking. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message.
        Please note that USAID recommends sending all comments to the Federal eRulemaking Portal because security screening precautions have slowed the delivery and dependability of surface mail to USAID in Washington, DC.
        All comments will be made available at http://www.regulations.gov for public review without change, including any personal information provided. We recommend that you do not submit information that you consider Confidential Business Information (CBI) or any information that is otherwise protected from disclosure by statute.
        USAID will only address substantive comments on the rule. USAID may not consider comments that are insubstantial or outside the scope of the proposed rule.
        B. Request for Comments
        USAID requests comments on its proposed rule to revise the Agency's Acquisition Regulations (AIDAR), appendices D and J to allow an individual personal services contractor to be eligible for monetary and non-monetary awards for extraordinary performance as described below.
        Background

        USAID awards PSCs with individuals based on multiple authorities: (1) Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended (FAA, 22 U.S.C. 2396), for personal services abroad; (2) annual appropriations for Foreign Operations for a maximum number of PSCs in the U.S. (e.g., Sec. 7057(g), Division K, Pub. L. 114-113 for fiscal year 2016); or (3) program-specific provisions of the FAA, the Food for Peace Act, or an appropriations act that authorize use of a broad range of implementation authorities toward those program purposes “notwithstanding any other provision of law” (e.g., FAA Section 491, 22 U.S.C. 2292, which authorizes international assistance “to alleviate human suffering caused by natural and manmade disasters . . .”).
        Over the last 27 years, USAID has awarded personal services contracts to individuals as necessary for the Agency to carry out its mission in the U.S. and overseas.
        As of September 2015, of USAID's total workforce, approximately 8 percent were U.S. PSCs, and 47 percent were cooperating country, or third country, national (CCN or TCN) PSCs. The Agency's overseas local staff are CCNPSCs, with the exception of a very few remaining Foreign Service National (FSN) direct-hire employees. Because the Agency depends on PSCs as part of its workforce for its operations, USAID seeks to recognize and motivate excellence in contract performance.

        Because PSCs are not authorized to participate in programs administered by the Office of Personnel Management (OPM), in May 2004, then Administrator Andrew Natsios used the Agency's discretionary authority to establish a separate awards program for PSCs, distinct from the Agency's awards program authorized by OPM for the Agency's direct-hire employees (see 5 U.S.C. 4501 et seq. regarding incentive awards programs for “superior accomplishment” by employees within the definition of 5 U.S.C. 2105; and 5 CFR part 451). The Administrator approved a deviation from the AIDAR appendix D to expand the PSC non-monetary awards program to include limited monetary awards such as “On The Spot” or Special Act cash; and Time-Off awards. The revised PSC monetary awards program was implemented under USAID Acquisition and Assistance Policy Directive (AAPD 04-15) issued on October 15, 2004, which authorized USPSCs, and certain TCNPSCs on an exceptional basis, to be eligible for these three types of monetary incentive awards under USAID Mission, Bureau or Independent Office (M/B/IO) programs.
        In March 2015, USAID's Special Awards Committee (SAC) conducted a review of the Agency's Awards program for its direct-hire employees. Following that review, on December 22, 2015, Acting Agency Administrator Alfonso Lenhardt approved a deviation to further expand the Agency's PSC Awards program to include additional types of monetary and non-monetary awards similar to those provided to USAID's direct-hire employees.
        In order to implement the awards programs for PSCs as approved by the Agency in 2004 and 2015, this revision to AIDAR appendices D and J is being proposed, and will replace the deviations approved in 2004 and 2015.
        Discussion
        This proposed rule will amend the AIDAR to establish a separate monetary and non-monetary awards program to recognize and reward individual personal services contractors for their contributions to the accomplishment of USAID's mission, goals, and objectives.
        Based on Statute—Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended; and by regulation—appendices D and J of the AIDAR, PSCs are not allowed to participate in any award program administered by OPM. Recognition of individual accomplishments by USPSCs was limited to non-monetary awards and certificates of appreciation. However, based on deviations and policy directives signed by the Head of Agency in 2004 and 2015, USAID established an interim separate awards program to make PSCs eligible to receive awards similar to the Agency's direct-hire employee incentive awards program.
        The Agency's incentive awards program for direct-hire employees is implemented in USAID's Automated Directives System (ADS) chapter 491. The new PSC awards program proposed in this AIDAR revision will be incorporated into appendices D and J and will be implemented as described in USAID's PSC policy in ADS chapter 309. Where appropriate, this incentive awards program will closely parallel the program for U.S. direct-hire employees. Any award payments will be made from the same source of funding used for the individual's contract, and in all cases separately from the pool of funds maintained for USAID direct-hire employee awards. Recognizing that USPSCs receive an annual pay comparability adjustment similar to direct-hires, as well as an annual within-grade salary increase for work evaluated at the “satisfactory performance” level, the policy requires that these awards be for performance or a special act that goes above and beyond the minimum satisfactory performance required under the contract. USAID proposes to recognize and encourage exceptional performance by PSCs when they perform special acts or create innovations that contribute to efficiency, economy, or other improvements in government operations, in the same way USAID recognizes superior performance by its direct-hire employees. The proportion of PSCs receiving cash awards at a M/B/IO or at the Agency level, and the total amount of the awards, will be consistent with, and will not exceed, the existing Agency policy for awards to U.S. direct-hire employees, as set by the Agency's Senior Management.

        The Agency's internal policies in ADS 309 will describe the criteria for each award, any cash or other limitations associated with each award, how the PSC's supervisors or others may nominate individuals, and how such nominations will be reviewed and recommended for approval. Nominations for the annual Agency level awards will generally follow the same procedures and use the same documentation as currently required for USAID's U.S. direct-hire employees.
        Regulatory Basis
        Since the Agency depends so much on PSCs and their contributions to the Agency, and as the statute, Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, and the regulation, appendix D of the Agency for International Development Acquisition Regulations (AIDAR), do not permit PSCs to participate in OPM-administered programs, the Administrator has decided to use the Agency's discretionary authority to establish a separate monetary awards program for its USPSCs. This incentive awards program is distinct and separate from the Agency's direct-hire employee incentive awards program found in ADS 491. Additionally, this AIDAR revision will establish an incentive awards program that is different from FAR Subpart 16.4 Incentive Contracts, as the Agency's PSC contracts are with individuals and profit or fee are not provided under these contracts. The details of this award program are available in a Mandatory Reference to ADS 309, 309mab—“Incentive Awards Program for Personal Services Contracts with Individuals”, accessible on the Agency website.
        C. Impact Assessment
        (1) Regulatory Planning and Review. Under E.O. 12866, OIRA has designated the proposed rule “significant” and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). OIRA has determined that this Rule is not an “economically significant regulatory action” under Section 3(f)(1) of E.O. 12866. This proposed rule is not a major rule under 5 U.S.C. 804.

        This rule codifies the Agency's deviations to date from the current rule in the CFR. The costs calculated in this section are based on upper end estimates to illustrate the potential impact of these revisions from the baseline costs of the current rule. Under this proposed rule, incentive awards at the M/B/IO level paid to USPSCs, and TCNPSCs with exceptions to be paid on the GS-scale (i.e., “excepted TCNPSCs”) for fiscal years 2014-2015 averaged $86,158 per year based on historical data provided by the Bureau for Management, Office of the Chief Financial Officer (M/CFO). The administrative and processing costs for these awards averaged $47,865. Therefore, the total estimated cost for M/B/IO awards is estimated at $134,023 per fiscal year.
        For the newly proposed “Agency-level” incentive awards issued from USAID headquarters, the total estimated amount that could be paid to all selected PSCs (USN, TCN and CCN) is $160,000 per fiscal year, assuming nominations are approved for every award. This figure is based on an estimated payout for all of 31 possible cash award amounts listed in ADS 309mab.
        As the Agency level headquarters awards program is new and there is no historical data for such awards paid to PSCs, USAID used historical data for awards to U.S. direct hires, as provided by USAID's Office of Human Capital and Talent Management (HCTM) for estimating the administrative and processing costs. On that basis administrative and processing costs are estimated at $118,525 per fiscal year comprised of labor for nominations, selection panels and award processing, plus ceremony event costs for a volume PSC awards equivalent to those given to direct hires. Also, as PSCs are eligible for fewer categories of Agency-level awards than are U.S. direct hires, the costs were pro-rated accordingly. Therefore, the total estimated cost for Agency-level awards from headquarters is $278,525 per fiscal year.
        Based on the above, the M/B/IO awards and Agency level award issues at headquarters are estimated together estimated to cost $412,547 per fiscal year.
        Note that for incentive awards at the Agency Mission level for cooperating country national (CCN) and third country national (TCN) PSCs, AIDAR appendix J authorizes such awards in accordance with the local compensation plan at each USAID Mission overseas through the “Joint Special Embassy” awards program. While this proposed rule revises the title of the Mission incentive awards program using current terminology, this rule does not otherwise affect the authority for this long-established awards program for CCN and TCN PSCs. Therefore there are no increased cost implications for this revision that updates the title of the program under AIDAR appendix J.

        Overall, USAID's proposed awards program will impact approximately 5,200 individual PSCs based on USAID's staffing numbers for fiscal year 2015 (i.e., 775 USPSCs and over 4,470 cooperating country and third country national PSCs). The costs to implement this revision are justified as the Agency depends on PSCs as part of its workforce. Given that USAID PSCs are an important and flexible supplement for the Agency's dynamic operations, this revision provides the Agency the ability to recognize and motivate excellence in contractor performance. Additionally, since these incentives were previously approved at the highest levels of Agency management, the costs to implement these revisions were deemed necessary as a business decision about how to best promote performance excellence by USAID PSCs.
        As a regulatory matter, the cost of the rule making process to incorporate these revisions into the regulation is also justified. The AIDAR appendices include all the compensation and benefits available under personal services contracts. Therefore, the Agency needs these revisions in order to keep the regulation consistent, complete and transparent to industry, other government agencies and the general public.

        (2) Regulatory Flexibility Act. The rule will not have an impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an Initial Regulatory Flexibility Analysis has not been performed.
        (3) Paperwork Reduction Act. The proposed rule does not establish a new collection of information that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Chapter 7, Appendices D and J
          Government procurement.

        For the reasons discussed in the preamble, USAID proposes to amend 48 CFR chapter 7 as follows:

          CHAPTER 7—AGENCY FOR INTERNATIONAL DEVELOPMENT

        1. Appendix D is amended by revising Section 4 paragraph (f) and adding a parenthetical authority citation at the end of the Appendix to read as follows:
        Appendix D to Chapter 7—Direct USAID Contracts With a U.S. Citizen or a U.S. Resident Alien for Personal Services Abroad

          4. Policy

          (f) Incentive awards. U.S. Personal Services Contractors are not eligible to participate in, or be funded under, the OPM-administered incentive awards program for USAID direct-hire employees in accordance with section 636(a) of the Foreign Assistance Act of 1961, as amended. U.S. Personal Services Contractors are eligible to receive certain monetary and non-monetary incentive awards as authorized under this section. All nominations for incentive awards must be approved by a U.S. direct hire employee, who is either the contractor's supervisor or is at the next higher level within the M/B/IO. The list of incentive awards and detailed eligibility, nomination and approval processes are specified in internal Agency policies in ADS chapter 309, available on the USAID website. These awards will be funded from the authorizations used to fund the specific contract.

          (Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR, 1979 Comp., p. 435.)

        2. Appendix J is amended as follows:
        a. In section 4:
        i. By revising paragraph (c)(1);
        ii. In paragraph (c)(2)(i), by removing “TCN or CCN” and adding in its place “CCN or TCN” and removing the reference “4c(2)(ii)” and adding in its place the reference “4(c)(2)(ii)”;
        iii. In paragraph (c)(2)(ii) introductory text, by removing the words “FSNs which includes CCNs and TCNs” and adding in their place “CCNs and TCNs” and revising the second sentence.
        iv. In paragraph (c)(2)(ii)(A), by removing the words “foreign national employee” and adding in its place the words “CCN or TCN personal services contractor”;
        v. In paragraph (c)(2)(ii)(B), by revising the first sentence;
        vi. In paragraph (c)(2)(iii), by removing the words “compensation plan for each” and adding in its place the words “local compensation plan for each Mission”;
        vii. By revising paragraphs (c)(2)(v) and (vii) and (c)(3); and
        viii. In paragraph (c)(4), by removing “CCN and TCN PSCs” and adding in its place “CCN and TCN personal services contractors” and removing the words “Contracting Officer” and adding in their place the words “contracting officer”.
        b. Under section 12, General Provisions for a Contract with a Cooperating Country National or with a Third Country National for Personal Services, revise item 19.
        c. By adding a parenthetical authority citation at the end of the appendix.
        The revisions and addition read as follows:
        Appendix J—Direct USAID Contracts With a Cooperating Country National and With a Third Country National for Personal Services Abroad

          4. Policy

          (c) * * *
          (1) General. For the purpose of any law administered by the U.S. Office of Personnel Management, USAID personal services contractors are not to be regarded as employees of the U.S. Government, are not included under any retirement or pension program of the U.S. Government, and are not eligible for the Incentive Awards Program covered by Uniform State/USAID regulations. Each USAID Mission is expected to participate in an interagency Mission incentive awards program. Additionally, CCN and TCN personal services contractors are eligible to receive certain USAID monetary and non-monetary incentive awards as authorized under this section. See paragraph (3) of this section for incentive awards.
          (2) * * *
          (ii) * * * The plan is each post's official system of position classification and pay, consisting of the local salary schedule, which includes salary rates, statements authorizing fringe benefit payments, and other pertinent facets of compensation for CCNs and TCNs.* * *

          (B) Section 4 of appendix D of this chapter, entitled Policy, subsections (c) “Withholdings and Fringe Benefits”, (d) “Resident Hire U.S. Personal Services Contractors”, (e) “Determining Salary for Personal Services Contractors”, (g) “Annual Salary Increase”, (h) “Pay Comparability Adjustment”, and (i) “Subcontracting”. * * *

          (v) CCN and TCN personal services contractors are eligible for allowances and differentials as provided under the post's local compensation plan.

          (vii) CCNs and TCNs retired from the U.S. government may be awarded personal services contracts without any reduction in or offset against their U.S. Government annuity.
          (3) Incentive Awards. (i) All CCN and TCN personal services contractors of the Foreign Affairs Community are eligible for an interagency Mission incentive awards program. The Joint Country Awards Committee administers each post's (Embassy) awards program, including establishment of procedures for submission, review and approval of proposed awards.
          (ii) CCN and TCN personal services contractors are also eligible to receive certain monetary and non-monetary USAID incentive awards. The list of incentive awards, eligibility, nomination and approval processes are specified in internal Agency policies in ADS chapter 309, available on the USAID website. These awards will be funded from the authorizations used to fund the PSC contract, and not from funds allocated for the OPM-administered awards program for USAID direct-hire employees.
          (iii) Meritorious Step Increases for USAID CCN and TCN personal services contractors may be authorized provided the granting of such increases is the general practice locally.

          12. General Provisions for a Contract With a Cooperating Country National or With a Third Country National for Personal Services

          19. Incentive Awards
          [For use in both CCN and TCN Contracts].
          Incentive Awards (Date)
          (a) Cooperating Country National (CCN) and Third Country National (TCN) personal services contractors of the Foreign Affairs Community are eligible for an interagency Mission incentive awards program. The program is administered by each post's (Embassy) Joint Country Awards Committee.
          (b) CCN and TCN personal services contractors are also eligible to receive certain monetary and non-monetary USAID incentive awards in accordance with the AIDAR and internal USAID policies.
          (c) Meritorious Step Increases. CCNs and TCN personal services contractors paid under the local compensation plan are eligible to receive meritorious step increases provided the granting of such increases is the general practice locally.

          (Authority:  Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR, 1979 Comp., p. 435.)

          Dated: February 14, 2019.
          Mark A. Walther,
          Acting Chief Acquisition Officer.

      [FR Doc. 2019-03840 Filed 3-15-19; 8:45 am]
       BILLING CODE 6116-01-P


        DEPARTMENT OF DEFENSE
        48 CFR Parts 208, 239, 251, and 252
        [DFARS Case 2000-D023]
        Defense Federal Acquisition Regulation Supplement; Enterprise Software Agreements

          AGENCY:
          Department of Defense (DoD).

          ACTION:
          Proposed rule with request for comments.

          SUMMARY:
          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add policy pertaining to the use of enterprise software agreements for the acquisition of commercial software and software maintenance.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before April 1, 2002, to be considered in the formation of the final rule.

          ADDRESSES:

          Respondents may submit comments directly on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an alternative, respondents may e-mail comments to: dfars@acq.osd.mil. Please cite DFARS Case 2000-D023 in the subject line of e-mailed comments.
          Respondents that cannot submit comments using either of the above methods may submit comments to: Defense Acquisition Regulations Council, Attn: Ms. Susan Schneider, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. Please cite DFARS Case 2000-D023.

          At the end of the comment period, interested parties may view public comments on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Susan Schneider, (703) 602-0326. Please cite DFARS Case 2000-D023.

        SUPPLEMENTARY INFORMATION:
        A. Background
        This proposed rule adds a new DFARS Subpart 208.74 to address the use of enterprise software agreements for the acquisition of commercial software and software maintenance in accordance with the DoD Enterprise Software Initiative. This initiative promotes the use of enterprise software agreements with contractors that allow DoD to obtain favorable terms and pricing for commercial software and related services. Associated DFARS changes are made in parts 208, 239, 251, and 252.
        This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
        B. Regulatory Flexibility Act

        The proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because most enterprise software agreements are blanket purchase agreements established under Federal Supply Schedules. Establishment of such agreements is already permitted by section 8.404(b)(4) of the Federal Acquisition Regulation. Therefore, an initial regulatory flexibility analysis has not been performed. Comments are invited from small businesses and other interested parties. Comments from small entities concerning the affected DFARS subparts also will be considered in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2000-D023 in correspondence.
        C. Paperwork Reduction Act

        The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

          List of Subjects in 48 CFR Parts 208, 239, 251, and 252
          Government procurement.

          Michele P. Peterson,
          Executive Editor, Defense Acquisition Regulations Council.

        Therefore, DoD proposes to amend 48 CFR Parts 208, 239, 251, and 252 as follows:
        1. The authority citation for 48 CFR Parts 208, 239, 251, and 252 continues to read as follows:

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

          PART 208—REQUIRED SOURCES OF SUPPLIES AND SERVICES
          2. Section 208.001 is amended by revising paragraph (a)(1)(v) to read as follows:

            208.001
            Priorities for use of Government supply sources.
            (a)(1)(v) See Subpart 208.70, Coordinated Acquisition, and Subpart 208.74, Enterprise Software Agreements.

            3. Subpart 208.74 is added to read as follows:

                Subpart 208.74—Enterprise Software Agreements
                Sec.
                208.7400
                Scope of subpart.
                208.7401
                Definitions.
                208.7402
                General.
                208.7403
                Acquisition procedures.

            208.7400
            Scope of subpart.
            This subpart prescribes policy and procedures for acquisition of commercial software and software maintenance, including software and software maintenance that is acquired—
            (a) As part of a system or system upgrade;
            (b) Under a service contract;
            (c) Under a contract administered by another agency;
            (d) Under an interagency agreement; or
            (e) By a contractor that is authorized to order from a Government supply source pursuant to FAR 51.101.

            208.7401
            Definitions.
            As used in this subpart—

              Enterprise software agreement means a blanket purchase agreement or a contract that is used to acquire designated commercial software or related services such as software maintenance.

              Enterprise Software Initiative means an initiative led by the DoD Chief Information Officer to develop processes for DoD-wide software asset management.

              Golden Disk means a purchased license or entitlement to distribute an unlimited or bulk number of copies of software throughout DoD.

              Software product manager means the person who manages an enterprise software agreement.

            208.7402
            General.
            Departments and agencies must fulfill requirements for commercial software and related services, such as software maintenance, in accordance with the DoD Enterprise Software Initiative (ESI). ESI promotes the use of enterprise software agreements (ESA) with contractors that allow DoD to obtain favorable terms and pricing for commercial software and related services.

            208.7403
            Acquisition procedures.

            (a) Requiring officials must obtain commercial software rights or maintenance from available existing DoD inventories (e.g.; Golden Disks and DoD-wide software maintenance agreements) before proceeding with an acquisition. DoD inventories and other ESI information are listed on the ESI website at http://www.don-imit.navy.mil/esi.
            (b) If the required commercial software or related service is not in the DoD inventory, or not on an ESA, the contracting officer or requiring official may fulfill the requirement by other means. Existing ESAs are listed on the ESI website.
            (c) If the commercial software or related service is on an ESA, the contracting officer or requiring official must review the terms and conditions and prices.
            (d) If an ESA's terms and conditions and prices represent the best value to the Government, the contracting officer or the requiring official must fulfill the requirement for supplies or services through the ESA.
            (e) If existing ESAs do not represent the best value to the Government, the software product manager (SPM) must be given an opportunity to provide the same or a better value to the Government under the ESAs before the contracting officer or requiring official may continue with alternate acquisition methods.
            (1) The contracting officer or requiring official must notify the SPM of specific concerns about existing ESA terms and conditions or prices through the ESI webpage.
            (2) The SPM will consider adjusting the ESA terms and conditions or prices to reflect “most favored customer” status.
            (i) Within 3 working days, the SPM will—
            (A) Update the ESA;
            (B) Provide an estimated date by which the update will be accomplished; or
            (C) Inform the contracting officer or requiring official that no change will be made to the ESA.
            (ii) If the SPM informs the contracting officer or requiring official that no change will be made to the ESA terms and conditions or prices, the contracting officer or requiring official may obtain the requirement by other means.
            (iii) If the SPM does not respond within 3 working days or does not plan to adjust the ESA within 90 days, the contracting officer or requiring official may fulfill the requirement by other means.
            (3) A management official designated by the department or agency may waive the requirement to obtain commercial software or related services through an ESA after the steps in paragraphs (e)(1) and (e)(2)(i) of this section are complete.

          PART 239—ACQUISITION OF INFORMATION TECHNOLOGY
          4. Subpart 239.1 is added to read as follows:

              Subpart 239.1—General
              Sec.
              239.101
              Policy.

                239.101
                Policy.
                See Subpart 208.74 when acquiring commercial software or software maintenance.

          PART 251—USE OF GOVERNMENT SOURCES BY CONTRACTORS
          5. Section 251.102 is amended as follows:
          a. By revising paragraph (f);
          b. In Table 51-1, by revising paragraph 1., and by adding paragraph 2.c. to read as follows:

            251.102
            Authorization to use Government supply sources.

            (f) The authorizing agency is also responsible for promptly considering requests of the DoD supply source for authority to refuse to honor requisitions from a contractor that is indebted to DoD and has failed to pay proper invoices in a timely manner.

              Table 51-1, Authorization To Purchase From Government Supply Sources

              1. You are hereby authorized to use Government sources in performing Contract No. ____ for [insert applicable military department or defense agency], as follows: [Insert applicable purchasing authority given to the contractor.]

              2. * * *
              c. Enterprise Software Initiative. Place orders in accordance with the terms and conditions of the attached Enterprise Software Agreement(s), or instructions for obtaining commercial software or software maintenance from Enterprise Software Initiative inventories, and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Enterprise Software Agreement contractor).
              Insert the following statement in the order:
              This order is placed under written authorization from ____ dated ____(*____). In the event of any inconsistency between the terms and conditions of this order, and those of the Enterprise Software Agreement, the latter will govern.

          PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          6. Section 252.251-7000 is amended as follows:
          a. By revising the clause date and paragraph (a); and
          b. In paragraph (d)(4) in the last sentence by removing “Such” and adding in its place “The”.

            252.251-7000
            Ordering From Government Supply Sources.

              Ordering From Government Supply Sources (XXX 2002)
              (a) When placing orders under Federal Supply Schedules, Personal Property Rehabilitation Price Schedules, or Enterprise Software Agreements, the Contractor shall follow the terms of the applicable schedule or agreement and authorization. Include in each order:
              (1) A copy of the authorization (unless a copy was previously furnished to the Federal Supply Schedule, Personal Property Rehabilitation Price Schedule, or Enterprise Software Agreement contractor).
              (2) The following statement:
              This order is placed under written authorization from ____ dated ____.
              In the event of any inconsistency between the terms and conditions of this order and those of your Federal Supply Schedule contract, Personal Property Rehabilitation Price Schedule contract, or Enterprise Software Agreement, the latter will govern.
              (3) The completed address(es) to which the Contractor's mail, freight, and billing documents are to be directed.

      [FR Doc. 02-2058 Filed 1-28-02; 8:45 am]
      BILLING CODE 5001-08-U


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [I.D. 072704A]
        Atlantic Highly Migratory Species; Atlantic Commercial Shark Management Measures; Rescheduling of Public Hearings

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

          ACTION:
          Rescheduling of public hearings.

          SUMMARY:

          NMFS is concerned about a lack of participation by commercial shark fishermen in three public hearings for a proposed rule that was published in the Federal Register on September 17, 2004, because of an overlap between the dates of the hearings and the commercial shark fishing season. These hearings are being held to receive comments from fishery participants and other members of the public regarding proposed shark regulations.

          DATES:
          The hearings scheduled for September 28, 2004, in Manteo, NC, September 29 in Cocoa Beach, FL, and September 30 in Madeira Beach, FL, are canceled. The public hearings are rescheduled for October 5, 2004, from 7-9 p.m. in Madeira Beach, FL; October 6, 2004, from 6:30-8:30 p.m. in Cocoa Beach, FL; and October 7, 2004, from 7-9 p.m. in Manteo, NC.
          Written comments on the September 17, 2004, proposed rule (69 FR 56024) must be received no later than 5 p.m. on October 18, 2004.

          ADDRESSES:
          The public hearings will be held at the following locations:
          1. City of Madeira Beach, 300 Municipal Dr., Madeira Beach, FL 33708,
          2. Cocoa Beach Public Library, 550 North Brevard Avenue, Cocoa Beach, FL 32931, and
          3. North Carolina Aquarium, Roanoke Island, Airport Road, Manteo, NC 27954.
          Written comments on the proposed rule or the Draft Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (Draft EA/RIR/IRFA) may be submitted to Christopher Rogers, Chief, Highly Migratory Species Management Division:
          • E-mail: 072704A@noaa.gov.
          • Mail: 1315 East-West Highway, Silver Spring, MD 20910. Please mark the outside of the envelope “Comments on Proposed Rule for LCS and SCS Quota Adjustments.”
          • Fax: 301-713-1917.
          • Federal e-Rulemaking portal: http://www.regulations.gov. Include in the subject line the following identifier: I.D. 072704A.

          Copies of the Draft EA/RIR/FRFA or Amendment 1 to the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks or its implementing regulations, may be obtained by using the above mailing address, and are also available on the internet at http://www.nmfs.noaa.gov/sfa/hms.

          FOR FURTHER INFORMATION CONTACT:
          Karyl Brewster-Geisz, Chris Rilling, or Mike Clark by phone: 301-713-2347 or by fax: 301-713-1917.

        SUPPLEMENTARY INFORMATION:
        The Atlantic shark fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The Fisheries Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) and Amendment 1 to the HMS FMP are implemented by regulations at 50 CFR part 635. On September 17, 2004, NMFS published a proposed rule (69 FR 56024) that would adjust the regional and trimester quotas for Large Coastal Sharks (LCS) and Small Coastal Sharks (SCS) based on updated landings information, among other things. Complete descriptions of the measures, as well as the purpose and need for the proposed actions, are contained in the proposed rule and are not repeated here.

        The September 17, 2004, proposed rule (69 FR 56024) specified, among other things, the dates, times, and locations of three public hearings. NMFS is concerned about a lack of participation by commercial shark fishermen because of an overlap between the dates of the hearings and the commercial shark fishing season that ends in the South Atlantic on September 30, 2004. Accordingly, NMFS is canceling and rescheduling the public hearings. The hearing previously scheduled for September 28, 2004, in Manteo, NC, has been canceled and rescheduled for October 7, 2004, in Manteo, NC. The hearing previously scheduled for September 29, 2004, in Cocoa Beach, FL, has been canceled and rescheduled for October 6, 2004, in Cocoa Beach, FL. The hearing previously scheduled for September 30, 2004, in Madeira Beach, FL, has been canceled and rescheduled for October 5, 2004, in Madeira Beach, FL (see DATES and ADDRESSES).
        Special Accommodations
        These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Chris Rilling, (301) 713-2347, at least 7 days prior to the hearing in question.

          Dated: September 16, 2004.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 04-21289 Filed 9-17-04; 2:38 pm]
      BILLING CODE 3510-22-S