Proposed Rules. Proposed rule
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/register/2006/08/14/06-6892A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 3410-11-P; 4310-55-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2006-0604; FRL-8208-7] Approval and Promulgation of Air Quality Implementation Plans; State of South Dakota; Revisions to the Administrative Rules of South Dakota AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to take direct final action approving a State Implementation Plan
(SIP)revisions submitted by the State of South Dakota on January 14, 2005. The January 14, 2005 submittal revises the Administrative Rules of South Dakota, Air Pollution Control Program, by modifying the chapters pertaining to definitions, ambient air quality, air quality episodes, operating permits for minor sources, regulated air pollutant emissions, new source review, performance testing, control of visible emissions, and continuous emission monitoring systems. In addition, the State made revisions to the Prevention of Significant Deterioration program, which has been delegated to the State. The intended effect of this action is to make these revisions federally enforceable. We are also announcing that on March 23, 2005, we updated the delegation of authority for the implementation and enforcement of the New Source Performance Standards to the State of South Dakota. These actions are being taken under sections 110 and 111 of the Clean Air Act. In the “Rules and Regulations” section of this **Federal Register** , EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If EPA receives no adverse comments, EPA will not take further action on this proposed rule. If EPA receives adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. DATES: Written comments must be received on or before September 13, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2006-0604, by one of the following methods: • *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *E-mail:* *long.richard@epa.gov* and *dygowski.laurel@epa.gov* . • Fax:
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466. • *Hand Delivery:* Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instruction on how to submit comments. FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, EPA Region 8, 999 18th Street, Suite 200, Mailcode 8P-AR, Denver, CO 80202,
(303)312-6144, *dygowski.laurel@epa.gov* . SUPPLEMENTARY INFORMATION: See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations section of this **Federal Register** . Authority : 42 U.S.C. 7401 *et seq.* Dated: August 1, 2006. Robert E. Roberts, Regional Administrator, Region 8. [FR Doc. E6-13165 Filed 8-11-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [FRL-8209-7] National Oil and Hazardous Substances; Pollution Contingency Plan; National Priorities List AGENCY: Environmental Protection Agency. ACTION: Notice of intent to delete the Nineteenth
(19th)Avenue Landfill Superfund Site from the National Priorities List. SUMMARY: The United States Environmental Protection Agency
(EPA)Region 9 is issuing a notice of intent to delete the Nineteenth
(19th)Avenue Landfill Superfund Site (Site), located in Phoenix, AZ, from the National Priorities List
(NPL)and requests public comment on this notice of intent. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Arizona, through the Arizona Department of Environmental Quality (ADEQ), have determined that all appropriate response actions under CERCLA have been completed. Operation and maintenance and five-year reviews will continue at the Site. This deletion does not preclude future actions under Superfund. DATES: Comments concerning the deletion of this Site from the NPL must be received by September 13, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1983-0002, by one of the following methods: • *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • E-mail: *hollan.nadia@epa.gov.* • Fax:
(415)947-3526. Mail or Hand Delivery: Nadia Hollan, EPA Region IX, Mail Code: SFD-8-2, 75 Hawthorne Street, San Francisco, CA 94105, or Environmental Protection Agency, EPA Docket Center (EPA/DC), Docket ID No: EPA-HQ-SFUND-1983-0002, Mailcode: 5202T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-SFUND-1983-0002. 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 e-mail. 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 e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, 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. Publicly available docket materials are available electronically in *http://www.regulations.gov* or at the EPA's information repositories at the following addresses: U.S. EPA Region IX Superfund Records Center at 95 Hawthorne St., San Francisco, CA,
(415)536-2000, Monday through Friday 8 a.m. and 5 p.m., excluding holidays; City of Phoenix Main Library, Government Documents Section, 1221 North Central Avenue, Phoenix, Arizona 85004,
(602)262-4636, Hours: M-Th, 10 a.m. to 9 p.m., Fri. & Sat., 10 a.m. to 6 p.m., Sun., 12 p.m. to 5 p.m.; and Arizona Department of Environmental Quality Records Center, 1110 West Washington Street, Phoenix, Arizona 85007, e-mail: *recordscenter@azdeq.gov* or call
(602)771-4380 or 1
(800)234-5677, ext. 771-4380, Hours: M-F, 8:30 a.m. to 4:30 p.m. FOR FURTHER INFORMATION CONTACT: Nadia Hollan, EPA Remedial Project Manager,
(415)972-3187 OR 1
(800)231-3075 (message line), *hollan.nadia@epa.gov,* or fax
(415)947-3526. Or, you may contact William DePaul, ADEQ Remedial Project Manager,
(602)771-4654, *depaul.william@azdeq.gov,* or fax
(602)771-2302. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis of Intended Site Deletion I. Introduction The U.S. Environmental Protection Agency
(EPA)Region 9 announces its intent to delete the 19th Avenue Landfill, located in Phoenix, Arizona, from the National Priorities List (NPL), and requests comments on this proposed deletion. The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substances Superfund Response Trust Fund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action. 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 the 19th Avenue Landfill Superfund Site and demonstrates how it meets the deletion criteria. II. NPL Deletion Criteria Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete releases from the NPL, EPA shall 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; or
(ii)All appropriate Fund-financed responses 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. Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the site above levels that allow for unlimited use and unrestricted exposure, as is the case with the 19th Avenue Landfill Site, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the site remains protective of public health and the environment. The Arizona Department of Environmental Quality (ADEQ), with EPA oversight, will conduct each five-year review of the Site. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without the application of the hazard ranking system. III. Deletion Procedures The following procedures apply to the deletion of the Site:
(1)The EPA consulted with the State of Arizona on the deletion of the Site from the NPL prior to developing this notice of intent to delete.
(2)The State of Arizona concurred with the deletion of the Site from the NPL.
(3)Concurrently with the publication of this notice of intent to delete in the **Federal Register** , a notice is being published in the *Arizona Republic* (local newspaper) and is being distributed to appropriate federal, state, and local government officials and other interested parties. The newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.
(4)The EPA placed copies of documents supporting the deletion in the Site information repositories identified above. If adverse comments are received within the 30-day public comment period on this document, EPA will evaluate the comments before making a final decision to delete. 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 the Site, the Regional Administrator will place a final Notice of Deletion in the **Federal Register** . Generally, the NPL will reflect deletions in the final update following the Notice. Public notices and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and in the site information repositories. Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion 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 of Intended Site Deletion The following information provides EPA's rationale for proposing to delete the Site from the NPL. Site Location and History The 19th Avenue Landfill is owned by the City of Phoenix and is located southeast of the intersection of Lower Buckeye Road and 19th Avenue, in a predominately industrial area of Phoenix, Maricopa County, Arizona. The landfill is intersected by the Salt River Channel. The larger part of the landfill, Cell A, covers approximately 200 acres located on the north side of the Salt River channel. The remainder of the landfill, Cell A-1, is located on the south side of the Salt River channel. In 1955, the 19th Avenue Landfill Site was relatively undisturbed except for a shallow 20-acre excavation. More pits were excavated as deep as 50 feet below land surface to create the space needed for waste disposal. The pits were then backfilled with municipal refuse, solid, and liquid industrial wastes. Liquid wastes, including industrial wastes, were poured into unlined pits dug into areas of Cell A previously filled with refuse. In addition to the municipal and industrial wastes, some medical wastes and materials containing low levels of radioactivity were also deposited. It has been estimated that the landfill contains approximately nine million cubic yards of refuse. The refuse was generally covered on a daily basis. A final soil cap was placed over an area once it was full of waste. Parts of the landfill were covered with water by at least one flood during 1965 and intermittently during the 1970s. The landfill was closed by a cease and desist order issued by the Arizona Department of Health Services (ADHS), predecessor to ADEQ, in February 1979. The City of Phoenix (City), the landfill owner and operator, and ADHS entered into a consent agreement in June 1979. The City covered the Site with fill material, stockpiled soil for final capping, installed 18 groundwater monitoring wells, built berms around the boundary of the landfill, installed a methane gas collection system, and provided a 24-hour security guard. The landfill was proposed for the EPA National Priorities List
(NPL)on December 30, 1982, and formally placed on the NPL on September 8, 1983. The City of Phoenix voluntarily began a remedial investigation, and in 1988 the EPA assigned the lead oversight responsibility for the Site to ADEQ. Remedial Investigation and Feasibility Study (RI/FS) The remedial investigation and feasibility study (RI/FS) conducted was completed by the City in 1988. The RI/FS was prepared according to the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended. The major findings of the RI/FS indicated that: 1. The landfill contents are generally similar to those of other municipal landfills of its era and include some hazardous materials, pollutants, and contaminants at low levels. 2. The majority of water quality results did not exceed Maximum Contaminant Levels (MCL). The following constituents exceeded the MCL intermittently and in only a few wells during the RI: arsenic (maximum level detected 170 ppb), barium (max. 2.58 ppm), carbon tetrachloride (max. 35.1 ppb), gross alpha (max. 17.9 pCi/L), gross beta (max. 122 pCi/L), mercury (max. 11 ppb), and vinyl chloride (max. 2.6 ppb). Generally, the total concentrations of VOCs in downgradient wells were similar or less than in upgradient wells and impacts of inorganics at the landfill were not discernible at downgradient wells. In addition, the groundwater in the vicinity of the landfill was not being used as a drinking water source. Because of the above factors, results of risk assessment calculations, and that drinking water in the area is supplied by the City of Phoenix, ADEQ and EPA determined that groundwater quality did not pose a threat to public health or the environment. 3. The Salt River does not support permanent fish populations; therefore, no bioaccumulation of compounds will occur. Small mammals and birds observed at the landfill would not be expected to ingest any contaminated soil or refuse due to the landfill(s protective cap. 4. Additional flood protection was required. Approximately 30 percent of the surface area of Cell A and 50 percent of Cell A-1 would be subject to inundation during a 100-year flow in the Salt River. 5. The gas extraction system required renovation. Record of Decision Findings The City completed a remedial action plan
(RAP)according to the State of Arizona Water Quality Assurance Revolving Fund (WQARF or State Superfund) in June 1989. The RAP selected the preferred remedy for the Site. By Letter of Determination (LOD), dated September 21, 1989, ADEQ approved the final draft Remedial Action Plan
(RAP)and the preferred alternative for the Site. EPA signed a Record of Decision
(ROD)in September 29, 1989 concurring with the remedy. The major components of the selected remedy for the 19th Avenue Landfill Site include: 1. Levees along both the north and south banks of the Salt River at the landfill Site to provide for flood protection; 2. Channelization of the Salt River to widen the river bottom to prevent flood water from impeding upon the landfill surface; 3. A soil cap (minimum of 3 feet) with a permeability of less than 10-4 centimeters per second to be placed over the landfill so that rain water does not seep into the landfill material; 4. Methane gas collection and treatment in a manner that eliminates the risk of explosion; 5. Ambient air quality, methane gas, and groundwater monitoring; and 6. Implementation of a contingency plan to outline additional monitoring and response evaluation procedures should groundwater quality standards be exceeded at the landfill boundary in the future. Subsequent to the ROD, EPA and ADEQ signed three Explanations of Significant Differences
(ESDs)to the selected remedy. In December 1995, ESD #1 was signed to change the perimeter drainage channel lining material from gunite to Armorflex. The Armorflex material was better suited to handle potential landfill settlement and for landfill maintenance activities. In October 2005, ESD #2 updated the applicable standards for groundwater and air quality. The current and proposed EPA Safe Drinking Water Act Maximum Contaminant Level
(MCL)and the Arizona Ambient Air Quality Guidelines for volatile organic carbons were identified as standards to compare groundwater and ambient air monitoring data with. In June 2006, ESD #3 was completed to identify institutional controls
(IC)that are necessary to protect the integrity of the remedy in the long-term. The specific IC mechanisms identified were the Declaration of Environmental Use Restriction
(DEUR)and the existing Arizona Department of Water Resources
(ADWR)requirements. The DEUR controls the use and access to the landfill property and ADWR restricts groundwater well site location, construction, and use that could impact the remedy. Response Actions ADEQ and the City entered into a Consent Decree in 1992 for the implementation and long term operation and maintenance of the remedy. Remedial design drawings and specifications were prepared by City contractors for all components of the remedy and submitted for review and approval by appropriate federal, state, county, and city agencies. Between August 1995 and October 1996, the City's Remedial Action contractor completed construction of the remedy components including the levee system and other flood control improvements, site landscaping, capping system, gas collection system, and the two flare stations. The emissions testing for the flare stations at Cell A and Cell A-1 were performed on October 16-18, 1996 and was satisfactory, and an air permit was subsequently issued to the City. The landfill gas collection system has been operational and functional since February 1997. The City of Phoenix submitted a construction completion report in September, 1998 certifying completion of all remedial action and documenting that the objectives of the remedial action have been met. This report certifies that all major components of the remedy are complete with the exception of environmental monitoring which is an ongoing part of the remedy. A Preliminary Close-Out Report
(PCOR)documenting construction completion was signed by ADEQ and EPA in February 1998. Remedial Action Report was completed by the City of Phoenix in September 1998, documenting that the remedy was operational and functional. During the first Five-Year Review in 2000, it was determined that the methane gas collection system was not operating optimally and methane had been migrating past the landfill boundary. In order to enhance the operational up time of the system as well as to better control methane along the southern and northeastern portions of the landfill, where probes were out of compliance, an expansion to the system was completed. The enhancements included installation of additional methane monitoring probes at the perimeter of the landfill, and methane collection along the middle and southern portions of the landfill. A final engineering design of a system to enhance gas collection was approved by ADEQ in 2001, and construction was completed during May 2002. The system operates more effectively and the methane monitoring probes have been in compliance since the system expansion was completed. Finally, in order to implement institutional controls concerning future land use, a Declaration of Environmental Use Restriction
(DEUR)was recorded on the property title in July 2006. The DEUR restricts uses of the property, and specifically prohibits residential use. A Final Close Out report documenting completion of all necessary Site remedial actions was also completed by ADEQ and EPA in July 2006. Cleanup Standards and Operation and Maintenance The remedy selected for the Site eliminates or reduces the risks posed by the Site through the use of engineering controls (cap, levee system, methane collection and treatment system, etc.), and institutional controls. The selected remedy provides for containment of the large volume of low level organic and inorganic waste material present in the landfill and reduces the potential for contaminant migration into the groundwater. Groundwater, methane, and ambient air monitoring are conducted to ensure the remedy is performing as intended. Quarterly groundwater monitoring has been conducted at the Site since 1992. It has been determined that the landfill has not impacted groundwater off-site. Groundwater monitoring will continue according to the Groundwater Contingency Plan requirements, however, it is extremely unlikely that contamination from the landfill will ever trigger the groundwater contingency or will pose a significant threat to human health and the environment. Methane monitoring at the perimeter of the landfill is an on-going process as part of the operation of the methane gas collection and treatment system. Methane levels exceeding the explosive hazard (5% by volume) are brought into compliance through operational adjustments of the system in order to prevent migration of dangerous levels of methane off-site. In addition, monitoring of stack emissions from the flare stations is required on a periodic basis to conform with Maricopa County regulations. Ambient air monitoring of VOCs above the landfill was performed in December 1998 and July 1999. Results show that the landfill, with current remedial measures in place, is not impacting ambient air quality. Long-term protection of public health and the environment will be ensured by regular operation and maintenance of the remedial measures implemented and will be assessed by continued monitoring at the landfill of groundwater, methane and if necessary, ambient air. The City of Phoenix is required to implement these actions through the Consent Decree as well as the Declaration of Environmental Use Restriction
(DEUR)with ADEQ. Five-Year Review Two Five-Year reviews have been conducted at the Site in September 2000 and September 2005. All deficiencies identified in the reviews have been corrected and the remedy is protective of human health and the environment. As required by statute, ADEQ will continue conducting statutory five-year reviews under EPA oversight. The next Five-Year review is scheduled for September 2010. Community Involvement Pubic participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617. Community involvement activities for the 19th Avenue Landfill began in 1986 and continued throughout the cleanup. A Community Participation Group was established to review and provide comments on available information about the project and serve as a point of information exchange for the community. The RI/FS was released to the public and was made available at the information repositories. The RAP was submitted for public comment and a formal public meeting was held on July 20, 1989. After completion of the ROD, periodic fact sheets were issued to the Site mailing list to update the community on Site cleanup progress, and notices were published in the newspaper regarding five-year review activities. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories. Applicable Deletion Criteria One of the three criteria for site deletion in the NCP (40 CFR 300.425(e)(1)(i) specifies that EPA may delete a site from the NPL if “responsible parties have implemented all appropriate response actions required.” The EPA, with the concurrence of the State of Arizona through the Department of Environmental Quality, has determined that all appropriate responses under CERCLA have been completed by the responsible party and that no further response actions under CERCLA are necessary. Operation and maintenance (O&M) activities will continue to be conducted by the responsible party, however O&M is not defined as a response action by the NCP. Therefore, a site in O&M can be deleted. EPA is proposing deletion of this site from the NPL based on this criteria. Documents supporting this action area available in the docket. State Concurrence In a letter dated July 12, 2006, the Arizona Department of Environmental Quality concurred with the proposed deletion of the 19th Avenue Landfill Superfund Site from the NPL. Dated: August 3, 2006. Wayne Nastri, Regional Administrator, Region 9. [FR Doc. E6-13298 Filed 8-11-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health 45 CFR PART 5b Privacy Act of 1974; Proposed Altered System of Records AGENCY: National Institutes of Health (NIH), Department of Health and Human Services (DHHS). ACTION: Notification of proposed altered System of Records. SUMMARY: The Department of Health and Human Services proposes to alter System of Records, 09-25-0168, “Invention, Patent, and Licensing Documents Submitted to the Public Health Service by its Employees, Grantees, Fellowship Recipients, and Contractors, HHS/NIH/OD.” NIH proposes a new legal authority for the maintenance of the System to read: 15 U.S.C. 3710, 3710a, 3710c & 3710d and 35 U.S.C. 200 et seq. provide authority to maintain the records; 37 CFR Part 401 “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements;” 37 CFR Part 404 “Licensing of Government Owned Inventions;” and 45 CFR Part 7 “Employee Inventions.” NIH is also proposing new routine uses for this System. These records will be maintained by the Office of Technology Transfer (OTT), OIR/OD; Office of Financial Management (OFM), OD; Office of Reports and Analysis (ORA), OER/OD; Health and Human Services Technology Development Coordinators and HHS Contract Attorneys who retain files supplemental to the records maintained by the Office of Technology Transfer; and the Extramural Inventions and Technology Resources Branch, OPERA/OER/OD. DATES: Comments must be received on or before September 13, 2006. The proposed altered System of Records will be effective 40 days from the date submitted to the OMB, unless NIH receives comments that would result in a contrary determination. ADDRESSES: You may submit comments, identified by the Privacy Act System of Record Number 09-25-0168, by any of the following methods: • *Federal eRulemaking Portal:* *http://regulations.gov* . Follow the instructions for submitting comments. • *E-mail:* *nihprivacyactofficer@mail.nih.gov* . Include PA SOR number 09-25-0168 in the subject line of the message. • *Phone:* 301/496-2832 (not a toll-free number). • *Fax:* 301/402-0169. • *Mail:* NIH Privacy Act Officer, Office of Management Assessment, National Institutes of Health, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, Maryland 20892. • *Hand Delivery/Courier:* 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, Maryland 20892. Comments received will be available for inspection and copying at this same address from 9 a.m. to 3 p.m., Monday through Friday, Federal holidays excepted. SUPPLEMENTARY INFORMATION: The NIH proposes to alter System of Records, No. 09-25-0168, “Invention, Patent, and Licensing Documents Submitted to the Public Health Service by its Employees, Grantees, Fellowship Recipients, and Contractors, HHS/NIH/OD.” This System of Records will be used to:
(1)Obtain patent protection of inventions when title is assigned to HHS;
(2)monitor the development of inventions made by grantees and contractors and protect the government rights to patents made with NIH support;
(3)grant licenses to HHS inventions; and
(4)administer and provide royalty payments to HHS inventors. This System of Records contains information such as inventor name, address, social security number (required if inventor is receiving royalties, otherwise optional), title and description of the invention, Employee Invention Report
(EIR)Number, Case/Serial Number, prior art related to the invention, evaluation of the commercial potential of the invention, prospective licensees' intended development of the invention, associated patent prosecution and licensing documents and royalty payment information. This System also includes other documents developed or information and material received by HHS from grantees and contractors who have reported inventions made with HHS funding, as well as HHS employee inventors who have assigned title to their inventions to HHS when HHS has applied for patents, has been granted patents, and/or is receiving royalties from patents. The records in this System may also contain reports of action taken by the agency, and decisions and reports on legal matters associated with invention, patent, and licensing matters. This System also includes information and material received from inventors and other collaborating persons, grantees, fellowship recipients and contractors; other Federal agencies; scientific experts from non-Government organizations; contract patent counsel and their employees and foreign contract personnel; United States and foreign patent offices; prospective licensees; HHS Technology Development Coordinators, Internet and commercial databases, and third parties whom HHS contacts to determine individual invention ownership or Government ownership. These records are retrieved by name of the inventor, Employee Invention Report
(EIR)Number, or keywords relating to the nature of the invention, Case/Serial Number, Licensing Number, internal reference numbers, contractor, agency, Institute, and/or Center. The records in this System are stored in file folders, computer tapes, and computer disks. The records in this System will be maintained in designated NIH offices in a secure manner compatible with their content and use. During normal business hours, records at OTT are managed by on-site contractor personnel who regulate availability of the files. During evening and weekend hours the offices are locked and the building is closed. These practices are in compliance with the standards of the General Administration Manual, PHS Supplementary Chapter 45-13 “Safeguarding Records Contained in Systems of Records”; and the HHS Automated Information Systems Security Program Handbook. Data on computer files is accessed by password known only to authorized users who are NIH or contractor employees involved in patenting and licensing of HHS inventions or in keeping records of inventions made by HHS contractors and grantees. Access to information is thus limited to those with a need to know. Data stored in computers will be accessed through the use of passwords known only to the authorized users. A password is required to access the database. All users of personal information in connection with the performance of their jobs protect information, including confidential business information submitted by potential licensees, from public view and from unauthorized personnel entering an unsupervised office. The records in this System are retained and disposed of under the authority of the NIH Records Control Schedule contained in NIH Manual Chapter 1743, Appendix 1—“Keeping and Destroying Records” (HHS Records Management Manual, Appendix B-361), item 1100-L, which allows records to be kept for a maximum of thirty years. Refer to the NIH Manual Chapter for specific disposition instructions. The routine uses proposed for this System are compatible with the stated purpose of the System and support the agency's administration of invention, patent, and licensing programs and requirements: The first routine use permits disclosure to a Member of Congress or to a Congressional staff member in response to an inquiry of the Congressional office made at the written request of the constituent about whom the record is maintained. The second routine use permits the National Institutes of Health (NIH), Department of Health and Human Services (HHS; also referred to as “Department”) to disclose information from this System of Records to the Department of Justice when:
(a)HHS or any component thereof; or
(b)any employee of HHS in their official capacity where the Department of Justice has agreed to represent the employee; or
(c)the United States Government is a party to litigation or has an interest in the litigation, and after careful review, HHS determines that the records are both relevant and necessary to the litigation and the use of the records by the Department of Justice is therefore deemed by HHS to be for a purpose that is compatible with the purpose for which HHS collected the records. Disclosure may also be made to the Department of Justice to obtain legal advice concerning issues raised by the records in this System. The third routine use permits disclosure to a court or adjudicative body of competent jurisdiction in a proceeding when:
(a)HHS or any component thereof; or
(b)any employee of the agency in their official capacity; or
(c)any employee of HHS in their individual capacity where HHS has agreed to represent the employee; or
(d)the United States Government is party to litigation or has an interest in the litigation, and, after careful review, HHS determines that the records are both relevant and necessary to the litigation and the use of the records is therefore deemed by HHS to be for a purpose that is compatible with the purpose for which HHS collected the records. When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising under general statute or particular program statute, or under regulation, rule, or order issued pursuant thereto, the fourth routine use permits disclosure to the appropriate agency, whether Federal, State, local, foreign or tribal, or other public authority or agency responsible for enforcing, investigating or prosecuting the violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prosecutive responsibility of the receiving entity. The fifth routine use permits disclosure to a Federal, State, local, foreign, or tribal or other public authority or agency of any portion of this System of Records that contains information relevant to the retention of an employee, the retention of a security clearance, the award of a grant or contract, or the issuance or retention of a license, patent or other monetary or nonmonetary benefit. Another agency or licensing organization may make a request supported by the written consent of the individual for the entire record if it so chooses. No disclosures shall be made unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another Federal agency for criminal, civil, administrative, personnel, or regulatory action. The sixth routine use permits disclosure to a Federal, State, local or foreign agency maintaining civil, criminal, or other relevant enforcement records, or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to an investigation concerning the retention of an employee or other personnel action, the retention of a security clearance, the award of a grant or contract, or the issuance or retention of a license, patent or other monetary or nonmonetary benefit. Under the seventh routine use, where Federal agencies having the power to subpoena other Federal agencies' records, such as the Internal Revenue Service or the Civil Rights Commission, issue a subpoena to HHS for records in this System of Records, HHS may make those records available. The eighth routine use permits disclosure to agency contractors, experts, or consultants who have been engaged by the agency to assist in the performance of a service related to this System of Records and who need to have access to the records in order to perform the activity. Recipients shall be required to comply with the requirements of the Privacy Act of 1974, as amended (Act, also referred to as “Privacy Act”), pursuant to 5 U.S.C. 552a(m). The ninth routine use permits NIH to disclose information from this System of Records for the purpose of obtaining patent protection for HHS inventions and licenses for these and other HHS inventions to:
(a)Scientific personnel, both in this agency and other Government agencies, and in non-Governmental organizations such as universities, who possess the expertise to understand the invention and evaluate its importance as a scientific advance;
(b)contract patent counsel and their employees and foreign contract personnel retained by the Department for patent searching and prosecution in both the United States and foreign patent offices;
(c)all other Government agencies whom HHS contacts regarding the possible use, interest in, or ownership rights in HHS inventions;
(d)prospective licensees or technology finders who may further make the invention available to the public through sale or use;
(e)parties, such as supervisors of inventors, whom HHS contacts to determine ownership rights, and those parties contacting HHS to determine the Government's ownership; and
(f)the United States and foreign patent offices involved in the filing of HHS patent applications. Under the tenth routine use, NIH shall report to the Treasury Department, Internal Revenue Service (IRS), as taxable income, the amount of royalty payment paid to HHS inventors. The eleventh routine use permits NIH to disclose information from this System of Records to:
(a)Potential clinical trial participants, under the rules and regulations governing the NIH human subjects protections program, when an investigator has any financial interests that might be relevant for their consideration when deciding whether or not to participate in a trial and;
(b)the general public to reveal the compensation that government scientists receive on licensed inventions generated during their government work. The following notice is written in the present tense, rather than the future tense, in order to avoid the unnecessary expenditure of public funds to republish the notice after the System has become effective. Dated June 6, 2006. Colleen Barros, Deputy Director for Management, NIH. [FR Doc. E6-13211 Filed 8-11-06; 8:45 am] BILLING CODE 4140-01-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 204, 235, and 252 RIN 0750-AF13 Defense Federal Acquisition Regulation Supplement; Export-Controlled Information and Technology (DFARS Case 2004-D010) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule with request for comments. SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to address requirements for preventing unauthorized disclosure of export-controlled information and technology under DoD contracts. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before October 13, 2006, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2004-D010, using any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments. • *E-mail:* *dfars@osd.mil.* Include DFARS Case 2004-D010 in the subject line of the message. • *Fax:*
(703)602-0350. • *Mail:* Defense Acquisition Regulations System, Attn: Ms. Debra Overstreet, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. • *Hand Delivery/Courier:* Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Comments received generally will be posted without change to *http://www.regulations.gov* , including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Debra Overstreet,
(703)602-0310. SUPPLEMENTARY INFORMATION: A. Background DoD published a proposed rule at 70 FR 39976 on July 12, 2005, to address requirements for preventing unauthorized disclosure of export-controlled information and technology under DoD contracts. To accommodate significant interest expressed with regard to the proposed rule, DoD extended the public comment period from 60 to 90 days (70 FR 46807, August 11, 2005), resulting in the public comment period ending on October 12, 2005. After thorough consideration of all comments by the Defense Acquisition Regulations Council, DoD is publishing a second proposed rule for public comment. This second proposed rule recognizes contractor responsibilities to comply with existing Department of Commerce and Department of State regulations, and the mutual responsibility of both the Government and the contractor to identify export-controlled information or technology. The more expansive regulatory requirements (including the prescriptive requirements of badging, training, and segregated work areas) contained in the first proposed rule are not included in this second proposed rule. Under this second proposed rule, the requiring activity must review acquisitions to determine if, during performance of the contemplated contract, the contractor will generate or require access to export-controlled information or technology. The contracting officer will rely on input from the requiring activity when including the appropriate clause in each solicitation and contract for research and development and, when appropriate, in solicitations for supplies and services. In addition, there is a separate clause that is tailored specifically for the unique circumstances of fundamental research contracts. The first and second proposed rules both include a new DFARS Subpart 204.73, Export-Controlled Information and Technology, and associated contract clauses. The subpart in the second proposed rule provides general information on export control laws and regulations and requires the contracting officer, based on input received from the requiring activity, to ensure that solicitations and contracts include appropriate terms and conditions regarding export controls and identify any export-controlled information and technology. For contracts that require generation of or access to export-controlled information or technology, the contractor will be required to— • Comply with applicable laws and regulations regarding export-controlled information and technology; • Consult with the Department of State on any questions regarding the International Traffic in Arms Regulations (ITAR), and with the Department of Commerce on any questions regarding the Export Administration Regulations (EAR); and • Notify the contracting officer if the contractor determines during contract performance that generation of or access to additional export-controlled information or technology is required. In addition, under this second proposed rule, for contracts that do not involve generation of or access to export-controlled information or technology, the applicable clauses require contract modification if, during performance, either contractual party becomes aware that the contractor will need to generate or have access to export-controlled information or technology. DoD received comments from 145 persons and organizations in response to the first proposed rule. DoD noted common themes among the comments, resulting in development of the following six comment categories: 1. Boundaries of the proposed rule. 2. Foreign participation in U.S. federally-sponsored research projects. 3. Administrative burden and cost effectiveness of proposed solutions to the underlying export control issues. 4. DoD personnel knowledge, qualifications, and skills to implement the proposed rule. 5. Scope and purpose of regulation. 6. Processes involved and implementing language. Differences between the first proposed rule and this second proposed rule are further addressed in the following discussion of the public comments. 1. Boundaries of the Proposed Rule a. *Comment.* Directly or indirectly, one hundred and thirteen respondents recommended against adopting the proposed rule. This negative feedback came primarily from the educational research community. *DoD Response.* DoD recognizes the respondents' concerns, and the proposed rule has been substantially re-written in a way that addresses many of the concerns, including those expressed by the research community. The impetus for creating the rule was a Department of Defense Inspector General (DoDIG) audit report which found that some contractors granted foreign nationals access to unclassified export-controlled technology without proper authorization. The DoDIG concluded that the Department does not have adequate processes to identify unclassified export-controlled information or technology, nor to prevent unauthorized disclosure to foreign nationals by its contractors. Based on these findings, DoD believes appropriate changes to regulations or procedures are warranted. b. *Comment.* Ten respondents noted that the proposed guidance about setting up a compliance program was too vague. *DoD Response.* DoD concurs that the guidance in the proposed rule was incomplete and conflicted with existing regulations. The rule has been changed to eliminate separate DoD requirements regarding export control compliance programs. Contractors that work with export-controlled information or technology should refer to the ITAR and the EAR when creating compliance programs. c. *Comment.* Four respondents recommended that DoD use the Department of State process for compliance. Five others noted the dangers of setting up parallel requirements for compliance systems. *DoD Response.* DoD agrees with these comments. The language at issue is not included in this second proposed rule. Contractors should refer to the ITAR and the EAR in developing their compliance programs. d. *Comment.* Eighty-eight respondents noted that the proposed rule was not compliant with National Security Decision Directive 189 (NSDD-189). Ninety-two respondents specifically mentioned the fundamental research exemption contained in NSDD-189. *DoD Response.* In response to these comments, DoD has amended the proposed rule to explicitly include reference to this directive and to the definition of “fundamental research.” Also, this second proposed rule contains a separate clause for inclusion in those contracts that involve only fundamental research. NSDD-189 is executive policy, and does not take precedence over statute-based export controls, nor does it exempt any research, whether basic, fundamental, or applied, from statute-based export controls, such as the Arms Export Control Act, and the Export Administration Act. The Department of State's International Traffic in Arms Regulations
(ITAR)and the Department of Commerce's Export Administration Regulations
(EAR)implement such statutes. The EAR exempts information *resulting from* fundamental research from export controls; it does not exempt information *required to conduct* fundamental research from export controls. Questions regarding the applicability of export controls to “fundamental research” should be addressed to the Department of State or the Department of Commerce, as appropriate. e. *Comment.* Five respondents referred to the Department of Commerce *advance notice of proposed* rulemaking
(ANPR)of March 28, 2005 *(70 FR 15607)* . These respondents recommended that DoD wait until the Department of Commerce completes its rulemaking on this subject. *DoD Response.* The focus of the DoD rulemaking is to ensure that DoD contractors consider export controls and follow the EAR and ITAR rules that are in place at the time of contract performance. The Bureau of Industry and Security, Department of Commerce, published two documents in May 2006 related to the March 28, 2005, ANPR: On May 22, 2006 (71 FR 29301), the Department of Commerce announced the establishment of a Deemed Export Advisory Committee to “address complex questions related to an evolving deemed export control policy.” Subsequently, on May 31, 2006 (71 FR 30840), the Department of Commerce announced the withdrawal of its ANPR published on March 28, 2005. Therefore, no changes were made to the EAR as a result of the March 28, 2005, Department of Commerce ANPR. f. *Comment.* Three respondents noted that it takes too long to obtain export licenses under the current process. *DoD Response.* The intent of the DoD rule is to ensure that contractors are aware of their obligations under the ITAR and the EAR. Export license procedures are outside the scope of this rulemaking. Problems with obtaining export licenses should be resolved with the Department of State or the Department of Commerce, as appropriate. g. *Comment.* Nine respondents stated that DoD should not require a contract clause. *DoD Response.* DoD believes that action is required to ensure that contractors are aware of their obligations under the ITAR and the EAR. The proposed clauses, as rewritten, require that contractors comply with current laws and regulations. The proposed clauses are primarily intended to ensure that contractors are aware of their existing responsibilities and comply with those responsibilities. h. *Comment.* Nine respondents stated that DoD should leave the whole area of export control to the Department of Commerce and the Department of State. *DoD Response.* DoD program officers and contracting officers need to be mindful of export control requirements that apply to performance of contracts and must ensure that contractors are aware of their responsibilities. For example, if DoD is providing export-controlled information or technology under a contract, the contract should inform the contractor of the nature of such information or technology. Furthermore, DoD has coordinated this second proposed rule with the Department of Commerce and the Department of State, and has revised the language to eliminate potential conflicts with the ITAR and the EAR. The proposed rule now includes references to the Department of Commerce regarding the EAR and the Department of State regarding the ITAR, since these agencies are responsible for promulgating and enforcing those export control regulations. i. *Comment.* Four respondents noted the proposed rule went beyond the ITAR in establishing system requirements. *DoD Response.* DoD agrees with this concern, and has revised the proposed rule to advise contractors of their responsibilities to comply with the ITAR. In addition, language about the content of compliance systems has been removed. j. *Comment.* Nine respondents stated that the Department of State Visas Mantis program requirements were adequate to protect information and technologies. *DoD Response.* DoD agrees that the Visas Mantis program is very helpful in clearing individuals to participate in federally funded research projects. However, it was never intended to guarantee that contractors would not share information technology inappropriately. k. *Comment.* Thirty-one respondents asserted that the language in the proposed rule was imprecise and/or inconsistent with the ITAR and the EAR. *DoD Response.* In response to these comments, DoD has revised the proposed rule to eliminate conflicts and to clarify the text. l. *Comment.* One respondent suggested that the proposed rule should be within the purview of the FAR Council. *DoD Response.* While export controls are not limited to DoD contracts, this rule will apply only to DoD contracts. If the FAR Council determines that a FAR rule is required, DoD will amend the DFARS as necessary to conform with any such FAR rule. 2. Foreign Participation in U.S. Federally-Sponsored Research Projects a. *Comment.* Fifty-six respondents asserted that the proposed rule would harm national security. These respondents asserted that foreign scientists and researchers add more to the U.S. research enterprise than they take away. In some fields, foreign researchers are ahead of their U.S. counterparts. Restricting participation in DoD-funded research may deprive the United States of capabilities that result in essential contributions to maintaining U.S. military superiority. *DoD Response.* DoD recognizes that National Security, as it relates to research and development, involves a balancing act. Science generally transcends national boundaries, *i.e.* , learning is not easily contained. Free exchange of ideas is a foundational concept of U.S. research and educational institutions. Conversely, it is important to prevent the transfer of technologies that would compromise national security. The revisions to the proposed rule attempt to strike the needed balance by interfering as little as possible with the university research infrastructure for fundamental research, while ensuring that contractors comply with their responsibilities under the ITAR and the EAR. b. *Comment.* Two respondents stated that there would be a potential adverse effect on collaboration with foreign scientists and researchers. *DoD Response.* DoD recognizes this concern and believes that the rule, as rewritten, minimizes this impact while ensuring that contractors are aware of their responsibilities to comply with existing export control regulations. c. *Comment.* One respondent recommended inclusion of a provision to notify the contracting officer whenever foreign persons were hired on research projects. *DoD Response.* In developing terms and conditions of contracts, contracting officers have the authority to require such notifications, consistent with the Privacy Act, when deemed appropriate for a specific situation ( *e.g.* , when export controlled information or technology or classified information is involved). However, DoD believes that mandating this notification for all contracts is unnecessary. d. *Comment.* Ten respondents were concerned that the proposed rule used the terms “foreign national” and “foreign person,” but did not define these terms. *DoD Response.* In response to this comment, the proposed rule has been revised to refer to the ITAR and the EAR for applicable definitions. e. Comment. Seventy-one respondents asserted that the proposed rule would hinder foreign student participation. *DoD Response.* DoD acknowledges this concern and recognizes the value of foreign student participation in DoD research. DoD appreciates the contributions foreign researchers have made to DoD systems and technologies. However, it is also important that contractors comply with existing laws and regulations related to the unauthorized transfer of export-controlled information and technology to foreign recipients, which is the purpose of this proposed rule. f. *Comment.* Seventy-one respondents stated that the proposed rule would hinder U.S. research. *DoD Response.* DoD believes this second proposed rule does not impose any negative effects on U.S. research, since it refers contractors to their already-existing responsibilities under the ITAR and the EAR. g. *Comment.* Sixty-three respondents objected to segregated work areas. *DoD Response.* As noted in the responses to comments 1.b. and 1.h., the proposed rule has been changed to eliminate separate DoD requirements on export control compliance programs, and instead includes references to the Department of State for the ITAR and the Department of Commerce for the EAR. Thus, a specific DoD requirement for segregated work areas has been removed from the proposed rule. 3. Administrative Burden and Cost-Effectiveness of Proposed Solutions to the Underlying Export Control Issues a. *Comment.* Forty-four respondents expressed concerns about the additional administrative burden of the proposed rule. These respondents asserted that the proposed rule appeared to mandate compliance system requirements beyond those required in the ITAR and the EAR. *DoD Response.* DoD recognizes this concern, and appropriate revisions have been made to the rule. This second proposed rule requires contractors to comply with their responsibilities under the ITAR and the EAR when export-controlled information or technology will be generated or accessed in the performance of the contract. b. *Comment.* Ninety-two respondents expressed concern with the requirement to issue badges to research participants. *DoD Response.* As noted in the responses to comments 1.b., 1.h., and 2.g., the proposed rule has been changed to eliminate separate DoD requirements on export control compliance programs, and instead includes references to the Department of State for the ITAR and the Department of Commerce for the EAR. The Department of State and the Department of Commerce have responsibility for overseeing compliance with ITAR and EAR requirements. c. *Comment.* Six respondents asserted that the proposed rule would impose a training burden. *DoD Response.* The rule was not intended to place unique DoD compliance burdens on the contractor. Therefore, the specific language related to training has been removed. d. *Comment.* Two respondents expressed concerns related to the rule's impact on access to research equipment that is export-controlled. *DoD Response.* Since the proposed rule is focused on reminding contractors of their responsibility to comply with the ITAR and the EAR, access to research equipment is considered to be outside the scope of this proposed rule. DoD recommends that the respondents refer concerns on this matter to the Department of Commerce or the Department of State, as appropriate. e. *Comment.* Three respondents stated that some universities do not have adequate infrastructure to comply with the proposed rule. *DoD Response.* DoD believes that the revisions made to the proposed rule should mitigate some of these concerns. However, any institution that becomes involved with export-controlled information and technology must develop the infrastructure to comply with statute and regulation. This is a requirement separate and apart from the proposed rule. f. *Comment.* Two respondents asserted that the security benefits of the proposed rule were modest and that the rule created unnecessary bureaucracies. *DoD Response.* The proposed rule has been revised to focus only on requiring contractors to comply with their existing obligations under the ITAR and the EAR. As such, it does not create any new administrative burden. 4. DoD Personnel Knowledge, Qualifications, and Skills To Implement the Proposed Rule *Comment.* Thirteen respondents doubted the capability of DoD contracting officers to identify and comment about export control issues. The primary concerns involved training, qualifications, and experience. An additional eight respondents expressed concern that contracting officers could not appropriately deal with compliance issues. *DoD Response.* DoD recognizes the importance of training, as well as the importance of coordination between the contracting officer and technical/requirements personnel. DoD is committed to appropriate training of program managers and contracting officers related to the ITAR and the EAR. Therefore, concurrent with publication of this second proposed rule, DoD is developing better training for those Government employees involved with export-controlled information or technology. DoD also recognizes that part of the problem identified in the DoDIG report could have been avoided if the contracting officer and the Government scientific officer had been adequately attentive to the fact that export-controlled information or technology was involved. Therefore, under this second proposed rule, the requiring activity must review acquisitions to determine if the contractor will generate or require access to export-controlled information or technology. The contracting officer will rely on this input when including the appropriate clause in each solicitation and contract for research and development, and when appropriate, in solicitations for supplies and services. 5. Scope and Purpose of Regulation a. *Comment.* Twenty-one respondents stated that the proposed rule adds new requirements. *DoD Response.* DoD agrees that the first proposed rule was overly prescriptive and has revised the rule accordingly. b. *Comment.* Four respondents expressed concern that the regulation is too narrow in scope, while three respondents recommended that the clause not be used extensively. *DoD Response.* DoD believes that the revisions in the second proposed rule resolve both of these issues. The status of fundamental research under NSDD-189 has been recognized by including a clause specifically for the unique circumstances of fundamental research contracts. In addition, the rule as rewritten requires inclusion of the appropriate clause in other research and development contracts, as well as contracts for supplies and services, when appropriate. c. * Comment.* One respondent questioned the application of the rule to universities, stating that the DoDIG report identified only one instance of a university export control lapse. *DoD Response.* Whereas DoD acknowledges that the DoDIG report identified only one instance of a university lapse, DoD recognizes that the findings were based on a limited sampling of contracts. To ensure that problems do not occur, DoD believes that all contractors must exercise due diligence to protect export-controlled information or technology when it is generated or accessed during contract performance. The status of fundamental research has been recognized by including a clause specifically for the unique circumstances of fundamental research contracts. However, universities still need to be aware of ITAR and EAR requirements, even though university contracts seldom involve export export-controlled information or technology. d. *Comment.* Two respondents stated that the rule did not properly explain its purpose. *DoD Response* . The purpose of the proposed rule is to ensure that DoD contractors are aware of their responsibilities to comply with all applicable laws and regulations when export-controlled information and technology is involved in contract performance. 6. Processes Involved and Implementing Language a. *Comment.* Three respondents recommended a representation and certification as opposed to a contract clause. *DoD Response.* DoD does not believe that the administrative burden associated with a certification would provide a commensurate benefit. b. *Comment.* Seven respondents requested more detail about the citations used in the clause. *DoD Response.* In response to this request, more detailed citations are provided in this second proposed rule. c. *Comment.* Twenty respondents expressed concerns about the flow down of the clause from commercial entities to universities. *DoD Response.* DoD recognizes the unique challenges associated with this concern. DoD believes that the need to protect export-controlled information and technology is of paramount importance and, therefore, recognizes the need to clarify the flow-down requirement. This second proposed rule requires that DoD contractors include the substance of the clause in a subcontract only when the subcontract will involve generation of or access to export-controlled information or technology. d. *Comment.* Three respondents recommended specific wording changes. *DoD Response.* These suggested wording changes were overtaken by the substantial changes to the first proposed rule. e. *Comment.* Three respondents asserted that “listing errors” will occur if the contracting officer is required to identify export-controlled information or technology involved in contract performance. *DoD Response.* As discussed in the response to comment 4, DoD recognizes the importance of training, as well as the importance of coordination between the contracting officer and technical/requirements personnel. This second proposed rule reminds contractors to comply with export control regulations, and places mutual responsibility upon the Government and the contractor to notify the contracting officer if, during contract performance, generation of or access to additional export-controlled information or technology is required. f. *Comment.* One respondent objected to the requirement for periodic assessments. *DoD Response.* In response to this comment, and for reasons discussed in the responses to comments 1.b. and 1.h., the requirement for periodic assessments was removed. However, contractors remain responsible for complying with export control regulations. g. *Comment.* One respondent recommended a database of contractors with effective compliance programs. *DoD Response.* Since the Department of Commerce and the Department of State have responsibility for system oversight, this comment has been forwarded to those agencies for consideration. h. *Comment.* Nineteen respondents supported alternative language as offered by the Council on Government Relations. *DoD Response.* DoD incorporated the concepts of some of this language in rewriting the proposed rule. 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 all contractors, including small entities, are already subject to export-control laws and regulations. The requirements in this proposed rule are clarifications of existing responsibilities. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2004-010. 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 204, 235, and 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, DoD proposes to amend 48 CFR parts 204, 235, and 252 as follows: 1. The authority citation for 48 CFR Parts 204, 235, and 252 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 204—ADMINISTRATIVE MATTERS 2. Subpart 204.73 is added to read as follows: Subpart 204.73—Export-Controlled Information and Technology Sec. 204.7301 Definitions. 204.7302 General. 204.7303 Policy. 204.7304 Contract clauses. Subpart 204.73—Export-Controlled Information and Technology 204.7301 Definitions. As used in this subpart— *Export-controlled information and technology* is defined in the clause at 252.204-70XX. *Fundamental research* is defined in the clause at 252.204-70YY. 204.7302 General. Export control laws and regulations restrict the transfer, by any means, of certain types of information and technology to unauthorized persons. See PGI 204.7302 for additional information regarding lead regulatory agencies and compliance with export control laws and regulations. 204.7303 Policy. The requiring activity shall review acquisitions to determine if, during performance of the contemplated contract, the contractor will generate or require access to export-controlled information or technology.
(a)Prior to issuance of a solicitation for research and development, the requiring activity shall notify the contracting officer in writing when—
(1)Export-controlled information or technology will be involved. The notification shall identify the specific information or technology that must be controlled, including the applicable references to the International Traffic in Arms Regulations
(ITAR)and/or Export Administration Regulations (EAR); or
(2)The work is fundamental research only, and export-controlled information or technology will not be involved.
(b)Prior to issuance of a solicitation for supplies or services, the requiring activity shall notify the contracting officer in writing when—
(1)Export-controlled information or technology will be involved. The notification shall identify the specific information or technology that must be controlled, including the applicable references to the ITAR and/or EAR; or
(2)The requiring activity is unable to determine that export-controlled information or technology will not be involved. 204.7304 Contract clauses.
(a)Use the clause at 252.204-70XX, Requirements for Contracts Involving Export-Controlled Information or Technology, in solicitations and contracts when the requiring activity provides the notification at 204.7303(a)(1) or (b)(1). The contracting officer shall identify the export-controlled information or technology as provided by the requiring activity.
(b)Use the clause at 252.204-70YY, Requirements Regarding Access to Export-Controlled Information or Technology—Fundamental Research, in solicitations and contracts when the requiring activity provides the notification at 204.7303(a)(2).
(c)Use the clause at 252.204-70ZZ, Requirements Regarding Access to Export-Controlled Information or Technology, in solicitations and contracts—
(1)For research and development, except when the clause at 252.204-70XX or 252.204-70YY will be included; or
(2)For supplies and services, when the requiring activity provides the notification at 204.7303(b)(2). PART 235—RESEARCH AND DEVELOPMENT CONTRACTING 235.071 [Redesignated] 3. Section 235.071 is redesignated as section 235.072. 4. A new section 235.071 is added to read as follows: 235.071 Export-controlled information and technology at contractor, university, and Federally Funded Research and Development Center facilities. For requirements regarding access to export-controlled information and technology, *see* Subpart 204.73. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 5. Sections 252.204-70XX, 252.204-70YY, and 252.204-70ZZ are added to read as follows: 252.204-70XX Requirements for Contracts Involving Export-Controlled Information or Technology. As prescribed in 204.7304(a), use the following clause: REQUIREMENTS FOR CONTRACTS INVOLVING EXPORT-CONTROLLED INFORMATION OR TECHNOLOGY (XXX 2006)
(a)*Definition* . *Export-controlled information and technology,* as used in this clause, means information and technology subject to export controls established in the Export Administration Regulations
(EAR)(15 CFR parts 730-774) or the International Traffic in Arms Regulations
(ITAR)(22 CFR parts 120-130).
(b)The parties anticipate that, in performance of this contract, the Contractor will generate or need access to export-controlled information or technology.
(1)The specific information [and, or] technology subject to export controls [is, are]: *[The Contracting Officer shall identify the specific information and/or technology as determined by the requiring activity in accordance with 204.7303(a)(1) or 204.7303(b)(1)]. *
(2)If, during performance of this contract, the Government or the Contractor becomes aware that the Contractor will generate or need access to export-controlled information or technology not listed in paragraph (b)(1) of this clause, it shall notify the other party and either—(i) Modify paragraph (b)(1) of this clause to include identification of the additional export-controlled information or technology, and ensure its control as required by paragraph
(c)of this clause; or
(ii)Negotiate a contract modification that eliminates the requirement for performance of work that would involve access to or generation of export-controlled information or technology not identified in paragraph (b)(1) of this clause.
(c)The Contractor shall comply with all applicable laws and regulations regarding export-controlled information and technology, including the requirement for contractors to register with the Department of State in accordance with the ITAR. The Contractor shall consult with the Department of State with any questions regarding the ITAR and shall consult with the Department of Commerce with any questions regarding the EAR.
(d)Nothing in the terms of this contract is intended to change, supersede, or waive any of the requirements of applicable Federal laws, Executive orders, and regulations, including but not limited to—
(1)The Export Administration Act of 1979 (50 U.S.C. App. 2401 as extended by Executive Order 13222);
(2)The Arms Export Control Act of 1976 (22 U.S.C. 2751);
(3)The Export Administration Regulations (15 CFR parts 730-774);
(4)The International Traffic in Arms Regulations (22 CFR parts 120-130);
(5)DoD Directive 2040.2, International Transfers of Technology, Goods, Services, and Munitions; and
(6)DoD Industrial Security Regulation (DoD 5220.22-R).
(e)The Contractor shall include the substance of this clause, including this paragraph (e), in all subcontracts that will involve access to or generation of export-controlled information or technology. (End of clause) 252.204-70YY Requirements Regarding Access to Export-Controlled Information or Technology—Fundamental Research. As prescribed in 204.7304(b), use the following clause: REQUIREMENTS REGARDING ACCESS TO EXPORT-CONTROLLED INFORMATION OR TECHNOLOGY—FUNDAMENTAL RESEARCH (XXX 2006)
(a)*Definitions* . As used in this clause— *Applied research* means the effort that—
(1)Normally follows basic research, but may not be severable from the related basic research;
(2)Attempts to determine and exploit the potential of scientific discoveries or improvements in technology, materials, processes, methods, devices, or techniques; and
(3)Attempts to advance the state of the art. *Basic research* means that research directed toward increasing knowledge in science. The primary aim of basic research is a fuller knowledge or understanding of the subject under study, rather than any practical application of that knowledge. *Export-controlled information and technology* means information and technology subject to export controls established in the Export Administration Regulations (15 CFR parts 730-774) or the International Traffic in Arms Regulations (22 CFR parts 120-130). *Fundamental research,* as defined by National Security Decision Directive 189, means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. This is distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.
(b)The parties consider the work required by this contract to be fundamental research. As such, the parties do not anticipate that in performance of this contract the Contractor will generate or need access to export-controlled information or technology.
(c)If, during performance of this contract, the Government or the Contractor becomes aware that the Contractor will generate or need access to export-controlled information or technology, it shall notify the other party and either—
(1)Modify the contract to include the Defense Federal Acquisition Regulation Supplement clause 252.204-70XX, Requirements for Contracts Involving Export-Controlled Information or Technology, and identify and control the export-controlled information or technology as required by the clause; or
(2)Negotiate a contract modification that eliminates the requirement for performance of work that would involve export-controlled information or technology. (End of clause) 252.204-70ZZ Requirements Regarding Access to Export-Controlled Information or Technology. As prescribed in 204.7304(c), use the following clause: REQUIREMENTS REGARDING ACCESS TO EXPORT-CONTROLLED INFORMATION OR TECHNOLOGY (XXX 2006)
(a)*Definition* . *Export-controlled information and technology,* as used in this clause, means information and technology subject to export controls established in the Export Administration Regulations (15 CFR parts 730-774) or the International Traffic in Arms Regulations (22 CFR parts 120-130).
(b)The parties do not anticipate that in performance of this contract the Contractor will generate or need access to export-controlled information or technology.
(c)If, during performance of this contract, the Government or the Contractor becomes aware that the Contractor will generate or need access to export-controlled information or technology, it shall notify the other party and either—
(1)Modify the contract to include the Defense Federal Acquisition Regulation Supplement clause 252.204-70XX, Requirements for Contracts Involving Export-Controlled Information or Technology, and identify and control the export-controlled information or technology as required by the clause; or
(2)Negotiate a contract modification that eliminates the requirement for performance of work that would involve export-controlled information or technology. (End of clause) 252.235-7002, 252.235-7003, 252.235-7010, and 252.235-7011 [Amended] 6. Sections 252.235-7002, 252.235-7003, 252.235-7010, and 252.235-7011 are amended in the introductory text by removing “235.071” and adding in its place “235.072”. [FR Doc. E6-13290 Filed 8-11-06; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 224 [Docket No. 040506143-6016-02. I.D. 101205B] RIN 0648-AS36 Endangered Fish and Wildlife; Proposed Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales; Extension of Public Comment Period AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; extension of public comment period. SUMMARY: On June 26, 2006, NMFS proposed regulations to implement speed restrictions on vessels 65 ft (19.8 m) or greater in overall length in certain locations and at certain times of the year along the east coast of the U.S. Atlantic seaboard to reduce the likelihood of deaths and serious injuries to endangered North Atlantic right whales that result from collisions with ships. NMFS is extending the public comment period on the proposed regulations until October 5, 2006. DATES: Written comments must be received at the appropriate address or facsimile
(fax)number (see ADDRESSES ) no later than 5 p.m. local time on October 5, 2006. ADDRESSES: Written comments should be sent to: Chief, Marine Mammal Conservation Division, Attn: Right Whale Ship Strike Strategy, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via email to *shipstrike.comments@noaa.gov* or to the Federal eRulemaking portal: *http://www.regulations.gov* (follow instructions for submitting comments). Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in this notice of proposed rulemaking, should also be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, and to David Rostker, OMB, by e-mail at *David_Rostker@omb.eop.gov* or by fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D., Fishery Biologist, Office of Protected Resources, NMFS, at
(301)713-2322 x152. SUPPLEMENTARY INFORMATION: Background On June 26, 2006, NMFS published a Proposed Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales (71 FR 36299). That **Federal Register** notice began NMFS' 60-day public comment period ending on August 25, 2006. NMFS subsequently received a request by the World Shipping Council to extend the public comment period so that its members and the public can fully review and provide comments on the proposed rule. Due to the size and scope of the proposed rule and accompanying Draft Environmental Impact Statement, the World Shipping Council requested additional time to complete an independent analysis. Since then, NMFS has received other requests to extend the public comment period. In this notice NMFS is extending the public comment period until October 5, 2006, in order to allow adequate time for the World Shipping Council and others to thoroughly review and thoughtfully comment on the proposed rule. Dated: August 8, 2006. Samuel D. Rauch, III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E6-13323 Filed 8-11-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 060724200-6200-01;I.D. 071106G] RIN 0648-AT94 Fisheries in the Western Pacific; Western Pacific Bottomfish and Seamount Groundfish Fisheries; Guam Bottomfish Management Measures AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed Rule; request for comments. SUMMARY: This proposed rule would implement Amendment 9 to the Fishery Management Plan for Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (FMP), which would prohibit large vessels, i.e., those 50 ft (15.2 m) or longer, from fishing for bottomfish in Federal waters within 50 nm (92.6 km) around Guam, and would establish Federal permitting and reporting requirements for these large bottomfish fishing vessels. The proposed rule is intended to maintain viable bottomfish catch rates by small vessels in the fishery, to sustain participation by smaller vessels in the fishery, to maintain traditional patterns of the bottomfish supply to local Guam markets, and to provide for the collection of adequate fishery information for effective management. DATES: Comments on the proposed rule must be received by September 22, 2006. ADDRESSES: You may submit comments, identified by 0648-AT94, by any of the following methods: • Federal e-Rulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • E-mail: *AT94Guam@noaa.gov* . Include 0648-AT94 in the subject line of the message. • Mail or Hand Delivery: William L. Robinson, Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to William L. Robinson (see ADDRESSES ), or by e-mail to *David_Rostker@omb.eop.gov* , or faxed to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Robert Harman, NMFS PIR, 808-944-2271. SUPPLEMENTARY INFORMATION: The bottomfish fishery operating in Federal waters around Guam is managed under the Fishery Management Plan for the Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (FMP). Aside from restrictions on the use of certain destructive fishing methods that apply to the bottomfish fisheries throughout the western Pacific region, the bottomfish fishery in Federal waters around Guam is mostly unregulated at this time. Potential developments in the fishery, however, led the WPFMC to recommend the proposed management measures. The Guam-based small-boat bottomfish fishery is a mix of subsistence, recreational, and limited commercial fishing, particularly in the summer months when weather conditions are calm. There are currently three primary sources of fisheries-dependent fisheries data for Guam: a boat-based and shoreline-based creel surveys conducted by staff of the Division of Aquatic and Wildlife Resources (DAWR), a voluntary fish dealer trip ticket invoice system coordinated by DAWR staff, and a voluntary data collection system established and coordinated by the Guam Fishermen's Cooperative with data submitted to and processed by DAWR staff. The boat-based creel survey is a systematic random sampling of boat-based participation island-wide and creel intercept interviews at the three most frequently-used access points, namely Agana Boat Basin, Agat Marina, and Merizo Pier. Vessel launching ramps are available at each of these sites, but marina slippage is only available at the Agana and Agat sites. The vast majority of fishing activity on Guam occurs from vessels launched from trailers for single day trips and the vast majority of all charter fishing occurs out of Agana and Agat marinas. Creel survey sampling frequency and methodology have fluctuated and have been modified slightly over the years as budgets, staff, and data requirements have changed, but have been fairly standard since the early 1980s. Sampling typically has been done on at least two week days and two weekend days each month, at each of the three listed ports, and interviews have been conducted for all fishing methods encountered. The charter fishery is sampled simultaneously with the small vessel fisheries, but the data are handled as a separate stratum within the data processing and reporting systems. Sampling does not include the primarily foreign longline fleet operating out of the Apra Harbor commercial port, or the short-lived and now inactive larger vessel commercial bottomfish fishing ventures. In general, data from the sampling programs are expanded to annual or quarterly estimates of catch, effort, and species composition by method of fishing. In recent years there have been about 10,000-13,000 boat-based fishing trips per year (CV <10%), with about one third of those using the bottom fishing method (shallow and deep combined). Estimated catches fluctuate even more, e.g., 400,000+ to 800,000+ lb with bottomfish catches being about 60,000-85,000 lb (CV <20%). As with all surveys, the more infrequent or rare an event, the lower the sample size, and the wider the estimated range of error. The second type of data available for the Guam fisheries is based on a voluntary “trip ticket” invoice system created by the NMFS Western Pacific Fisheries Information Network (WPacFIN), Guam Division of Aquatic and Wildlife Resources (DAWR), and the Guam Fishermen's Cooperative
(Coop)in the early 1980s. This system was designed to monitor the commercial sales of fish (purchases made directly from fishermen) by fish dealers, stores, and markets. The number of vendors participating in the program has fluctuated over the years as new vendors have come and gone, but the Coop has maintained its participation and dominance in volume of purchases throughout the time series. Invoices collected through this system record only the purchase of fish offered for sale to participating dealers, so do not reflect the purchases made by non-participating dealers, stores, etc., or the portions of catches retained by fishermen for consumption or other purposes. Over the years, the annual estimated percentage coverage of the total fish sales by Guam's fishermen that has been captured by the voluntary dealer reporting system has ranged from 55% to 90%. The third and newest (about one year old) fisheries data collection system on Guam is a voluntary data collection system sponsored and primarily conducted by the Guam Fishermen's Coop in conjunction with WPacFIN, DAWR, and WPFMC staff. This project consists of two main data collection tools, one to collect vessel-level background fisheries participation data, and one to capture more detailed trip-level data on total catch, effort, species composition, and disposition of catch. All Coop members were asked to participate. In addition, through a series of outreach efforts, non-members were also encouraged to participate whenever possible. The trip-level form collects very similar data to the DAWR creel survey interviews, except for individual fish lengths. When fishermen sell fish to the Coop, the invoice number is recorded on the trip form, as well as the details of catch not sold. Two of the main purposes of this data collection process are to augment the DAWR creel survey interviews and to better document total catch and effort by fishermen who sell portions of their catch. This data collection system is still in its infancy and should gain acceptance by a greater percentage of Guam's fishermen, especially for the non-Coop member fishing sector. Based on the current FMP reporting and management requirements, these data collection programs can provide adequate information about Guam's inshore bottomfish fisheries that are conducted by smaller vessels. Thus, the proposed rule does not intend to establish additional data collection requirements on smaller vessels. There is a potential component of Guam's bottomfish fishery in which fishermen in relatively large vessels (i.e., greater than 50 ft or 15.2 m in length) target deep-slope fish species, particularly onaga (longtail red snapper, or flame snapper, *Etelis coruscans* ). This fishery is currently non-existent, but several vessels have operated in the past. The fish were caught on offshore banks in Federal waters, landed at Guam's commercial port, and rather than entering the local market, exported by air to foreign markets, especially Japan. The activity occurred on some or all of Guam's southern banks, including Galvez, 11-Mile, Santa Rosa, White Tuna, and Baby Banks. Most of the vessels fishing on these southern banks targeted the shallow-water bottomfish complex, but some targeted the deep-water complex. The banks to the north of Guam, including Rota Bank, and far to the west of Guam, including Bank A, appear not to have been fished at this time. The potential for large-vessel bottomfish fishing activity to resume on the offshore banks prompted concerns about fishery information being inadequate for effective management, the potential for small-vessel catch rates to decline to non-viable levels, threats to sustained participation by smaller vessels in the fishery, and disruptions to traditional patterns of supply of bottomfish products to the local market. This amendment has the following objectives: • To ensure that adequate information is routinely collected for the large-vessel export-oriented bottomfish fishery taking place in Federal waters around Guam; • To maintain adequate opportunities for small-scale commercial, recreational, and subsistence bottomfish fishermen in Federal waters around Guam; • To provide for sustained community participation by smaller vessels in the Guam bottomfish fishery; and • To encourage consistent availability of fresh, locally caught deepwater bottomfish products to Guam consumers. After considering a wide range of management options, including many options suggested by the public during a public scoping process, the WPFMC analyzed the likely effects of four management alternatives, as follows: 1. No action; 2. Federal permits and logbook requirements for large vessels, i.e., 50 ft (15.2 m) or longer, that land bottomfish management unit species in Guam, and a closure of all Federal waters within 50 nm (92.6 km) of Guam to bottomfish fishing by large bottomfish vessels; 3. A landing limit for onaga of 250 lb (113.4 kg) per trip for fishing trips in Federal waters around Guam; and 4. A limited access program for the bottomfish fishery in Federal waters around Guam. The WPFMC recommended to NMFS to implement the measures in preferred Alternative 2 (large vessel permits, reporting, and closed area). Alternative 2 is expected to maintain the opportunity for viable bottomfish catch rates for smaller vessels, sustained community participation by smaller vessels, and local supply of fresh bottomfish, but it would decrease the opportunity for large-scale vessels to harvest bottomfish at well-known banks and require them to search elsewhere for new bottomfish grounds. However, taking no action could lead to greatly reduced bottomfish populations and catch rates within the fishing range of Guam's small-vessel fleet if the large-vessel fishery and associated concerns were to develop. Economic, social, and cultural costs would be high for the small-vessel fishery, which does not have the range or capacity to travel to more distant seamounts to obtain higher bottomfish catch rates.The WPFMC rejected Alternative 1 (no action) because of the risks it brings in terms of maintaining viable bottomfish catch rates, providing for sustained community participation by smaller vessels in the fishery, and maintaining a consistent availability of locally caught fish to the Guam market. The WPFMC did not recommend Alternative 3 (250 lb or 113.4 kg trip limit for onaga) because, although it would likely help achieve the management objectives, it would encourage high-grading of onaga by fish quality, resulting in greater onaga bycatch than under other alternatives, and it might needlessly inhibit fishery efficiency in the waters beyond the range of small vessels of the Guam bottomfish fishery. Alternative 4 (limited access program) would provide more complete fishery information than Alternative 2 (through vessel logbooks for all participants) and provide more finely-tuned and adjustable control over total bottomfish fishing effort and the distribution of fishing effort by vessel size. The WPFMC did not recommend Alternative 4, however, because its advantages would come at greater cost than Alternative 2, at least in the short term. These greater costs would include those associated with administration, enforcement, and monitoring, compliance on the part of fishery participants, and a likelihood of individuals being denied the opportunity to participate in the fishery. Given the problem being addressed, and that existing data collection programs can provide adequate information about Guam's inshore bottomfish fisheries that are conducted by smaller vessels, these costs do not appear to be justified at this time. While Alternative 2 is expected to succeed in achieving the objectives of the action, it is difficult to predict to what extent. For example, it is possible that the type of fishery development this action is aimed at curbing (i.e., large-scale, export-oriented fishing) would take place on more or less the same scale under Alternative 2 (e.g., using vessels less than 50 ft or 15.2 m in length) as it would under the no-action scenario. In that case, further management action might be needed in the future if the large vessel fishery and associated concerns were to develop. Public comments are being solicited on the FMP amendment through the end of the comment period stated in the Announcement of Availability. The Announcement of Availability was published on July 24, 2006 (71 FR 41770), and the comment period ends on September 22, 2006. Public comments on the proposed rule must be received by the end of the comment period on the FMP amendment, as published in the Announcement of Availability, to be considered in the approval/disapproval decision on the amendment. All comments received by the end of the comment period on the amendment, whether specifically directed to the amendment or to the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received by close of business on the last day of the comment period, not postmarked or otherwise transmitted by that date. An Environmental Assessment
(EA)was prepared for this amendment. Copies of the FMP, Amendment 9, and the EA, Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis
(IRFA)may be obtained from William L. Robinson (see ADDRESSES ). Classification This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act (PRA). These requirements will be submitted to OMB for approval. The public reporting burden for these requirements is estimated to be 30 min for a new permit application, and 5 min for completing a fishing logbook each day. Each estimate includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Public comment is sought regarding whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility, the accuracy of the burden estimate, ways to enhance the quality, utility, and clarity of the information to be collected, and ways to minimize the burden of the collection of information, including through the use of automated information technology. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to William L. Robinson (see ADDRESSES ), by e-mail to *David_Rostker@omb.eop.gov* , or fax 202-395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number. An IRFA was prepared that describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of why the action is being considered, the objectives and legal basis for the action, and a description of the action, may be found at the beginning of this section. The Small Business Administration defines a commercial fishing business as a small entity if annual gross receipts are less than $4.0 million. All bottomfish vessels impacted by this rulemaking are considered to be small entities under this definition. Therefore, there are no economic impacts resulting from disproportionality between large and small vessels. A summary of the analysis follows. Number of Affected Small Entities The proposed alternative is expected to potentially impact as many as 1-3 bottomfish vessels of length greater than 50 ft (15.2 m) that have previously operated, but are not currently operating, in Federal waters within 50 nm (92.6 km) of Guam. Alternative 3, which would implement a trip limit on onaga, alternative 4, which would implement limited access, and the no- action alternative 1 would impact 100-300 bottomfish vessels operating in Federal waters around Guam, regardless of their size. Duplicating, Overlapping, and Conflicting Federal Rules To the extent practicable, it has been determined that there are no Federal rules that may duplicate, overlap, or conflict with the proposed rule. Effects of the Proposed Rule on Small Entities All alternatives considered in this action would implement permitting, recordkeeping, and reporting requirements for vessels engaged in the fishery. Costs associated with obtaining permits and keeping and reporting information in logbooks would be minimal, as described below. No-Action Alternative 1 The no-action alternative would be economically preferable to large vessels when compared to the proposed alternative, and would be economically preferable to all vessels when compared to alternative 3. However, because of the risks it brings in terms of maintaining viable bottomfish catch rates, providing for sustained participation by smaller vessels in the fishery, and maintaining a consistent availability of locally caught fish to the Guam market, this alternative has been determined to not be consistent with National Standards 1, 4, and 8 of the Magnuson- Stevens Fishery Conservation and Fishery Management Act and was not chosen. Proposed Alternative 2 Because data on costs and revenues for the large-vessel component of the fishery are not available, impacts to the profitability of the 1-3 vessels that could potentially be impacted by this rulemaking cannot be directly estimated. Implementation of the rule would require the affected vessels to search elsewhere for new bottomfish grounds, to relocate to the Northern Mariana Islands
(NMI)to engage in deepwater trips for bottomfish at the islands and banks north of Saipan, or to change gear and enter another fishery. Regardless of their choice, it is likely that these vessels would experience adverse economic impacts in the form of reductions in potential profitability under this proposed rule. The extent of the impacts would depend on the opportunity costs of each individual vessel relative to the profits previously earned in the bottomfish fishery off of Guam. Alternative 3 As in the case of the proposed alternative, without comprehensive information on vessel cost and revenues, the effects on individual vessel profitability from implementation of a 250-lb trip limit for onaga cannot be estimated with confidence. According to the Expanded Offshore Creel Survey in 2004, about 300-400 individual boats participated in the Guam bottomfish fishery, catching about 7,000 lb of onaga, and fisherman received an average price of just less than $5.00/lb for onaga. Trip limits would likely not have a beneficial economic impact on vessels engaged in this fishery, but the negative impact would vary among individual vessels depending upon their average catch of onaga and their overall profit margins from harvesting operations. If a vessel typically caught less than the trip limit, there would be no economic impact. However, if a vessel typically caught greater than the trip limit there would be an economic loss exacerbated by the added expense of culling and discarding the overage catch of onaga. Size of vessel is not an accurate basis to measure profit margins, i.e., it would not be correct to assume that smaller vessels have smaller profit margins and would be impacted to a greater extent than larger vessels from implementation of a trip limit. Although a large proportion of the Guam bottomfish fishing fleet would be subject to the 250-pound trip limit on onaga, it would actually affect only a small proportion of the fleet. It would directly affect the fishing behavior of only those fishery participants that have both the capacity and the interest to land more than 250 lb of onaga during a single fishing trip. The precise number of entities capable of landing this amount of onaga is not known, but it is probably less than half of the 300 to 400 vessels that have reported BMUS landings in Guam in each of the last few years. Based on anecdotal reports that the members of the Guam Fishermen's Cooperative Association have agreed among themselves to land no more than 250 pounds of onaga per trip, the number of entities interested in landing this amount of onaga is probably no more than a few. These few “large commercial enterprises” probably overlap to a large extent with the “large-vessel” small entities that would be affected under Alternative 2. Like Alternative 2, the 250-pound trip limit on onaga of Alternative 3 would constrain the ability of large commercial enterprises (rather than large vessels, per se) to operate in the Guam bottomfish fishery. The responses of directly affected small entities to the measure and the economic effects on them would therefore be of the same type as those described for Alternative 2. Which of the two alternatives would be more constraining in terms of the economic efficiency of fishing operations is not possible to predict. The trip limit would apply to fishing anywhere in the EEZ around Guam, not just within 50 nm of shore, so in that sense it would be more constraining than Alternative 2. It is not known whether Alternative 3 would result in the economic viability of any affected entities being put at substantial risk. Alternative 4 For the reasons discussed above, profitability measures cannot be estimated for this alternative. Vessels that would not qualify for a limited access permit would face the same adverse economic impacts as those displaced from the fishery under the proposed alternative. By avoiding the adverse stock and crowding effects associated overcapitalized fisheries, those vessels that would qualify would be expected to benefit economically from this measure by maintaining or improving profitability in a stable economic environment. The criteria that would be used to determine who and how many participants would be eligible for permits have not been formulated, so it is not possible to rigorously predict how fishery participants would respond or how they would be affected. The limited access program would be designed in such a way as to achieve specified management objectives (success being subject to the availability of information needed for program design), presumably including those objectives already specified in the FMP. Given that FMP Objective 5 is to “maintain existing opportunities for rewarding experiences by small-scale commercial, recreational, and subsistence fishermen, including native Pacific islanders,” the program would presumably be designed so as to minimize the adverse impacts on existing participants, particularly small-scale participants, possibly at the expense of large participants. Any short-term adverse economic effects of Alternative 4 would therefore probably be felt by largely the same entities as those that would be adversely affected under Alternatives 2 and 3, and their responses and the economic effects on them would therefore be of the same type as those described for Alternatives 2 and 3. Which of the three would be more constraining in terms of the economic efficiency of fishing operations is not known. It is not known whether Alternative 4 would result in the economic viability of any affected entities being put at substantial risk. List of Subjects in 50 CFR Part 665 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaii, Hawaiian natives, Northern Mariana Islands, Pacific Remote Island Areas, Reporting and recordkeeping requirements. Dated: August 8, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 665 is proposed to be amended as follows: PART 665—FISHERIES IN THE WESTERN PACIFIC 1. The authority citation for part 665 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 665.12, add the definition of “Guam bottomfish permit” and revise the definition of “Large vessel” as follows: § 665.12 Definitions. *Guam bottomfish permit* means the permit required by § 665.61(a)(4) to use a large vessel to fish for, land, or transship bottomfish management unit species shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area. *Large vessel* means, as used in §§ 665.22, 665.37, 665.38, 665.61, 665.62, and 665.70, any vessel equal to or greater than 50 ft (15.2 m) in length overall. 3. In § 665.13, revise paragraph (f)(1) to read as follows: § 665.13 Permits and fees.
(f)*Fees* .
(1)PIRO will not charge a fee for a permit issued under subpart D or F of this part, for a Ho'omalu Zone limited access permit, or for a Guam bottomfish permit issued under § 665.61. 4. In § 665.14, revise paragraph
(a)to read as follows: § 650.14 Reporting and recordkeeping.
(a)*Fishing record forms* . The operator of any fishing vessel subject to the requirements of §§ 665.21, 665.41, 665.61(a)(4), 665.81, or 665.602 must maintain on board the vessel an accurate and complete record of catch, effort, and other data on report forms provided by the Regional Administrator. All information specified on the forms must be recorded on the forms within 24 hr after the completion of each fishing day. The original logbook form for each day of the fishing trip must be submitted to the Regional Administrator within 72 hr of each landing of management unit species. Each form must be signed and dated by the fishing vessel operator. 5. In § 665.61, revise paragraph (a)(1) and add paragraph (a)(4) to read as follows: § 665.61 Permits.
(a)*Applicability* .
(1)The owner of any vessel used to fish for bottomfish management unit species in the Northwestern Hawaiian Islands Subarea or Guam Subarea must have a permit issued under this section and the permit must be registered for use with the vessel.
(4)A fishing vessel of the United States must be registered for use under a Guam bottomfish permit if that vessel is a large vessel and is used to fish for, land, or transship bottomfish management unit species shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area. 6. In § 665.62, add paragraphs (f), (g), and
(h)to read as follows: § 665.62 Prohibitions.
(f)Use a large vessel that does not have a valid Guam bottomfish permit registered for use with that vessel to fish for, land, or transship bottomfish management unit species shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area in violation of § 665.61(a).
(g)Use a large vessel to fish for bottomfish management unit species within the Guam large vessel bottomfish prohibited area, as defined in § 665.70(b).
(h)Land or transship, shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area, bottomfish management unit species that were harvested in violation of § 665.62(g). 7. Under subpart E, add a new § 665.70 to read as follows: § 665.70 Bottomfish fishery area management.
(a)Large vessel bottomfish prohibited area. A large vessel of the United States may not be used to fish for bottomfish management unit species in any large vessel bottomfish prohibited area as defined in paragraph
(b)of this section.
(b)Guam large vessel bottomfish prohibited area (Area GU- 1). The large vessel bottomfish prohibited area around Guam means the waters of the US EEZ surrounding Guam that are enclosed by straight lines connecting the following coordinates in the order listed: Point N. lat. W. long. GU-1-A 14° 23′ 43″ 144° 27′ 36″ GU-1-B 14° 10′ 144° 11′ GU-1-C 13° 50′ 143° 52′ GU-1-D 13° 17′ 143° 46′ GU-1-E 12° 50′ 143° 54′ GU-1-F 12° 30′ 144° 14′ GU-1-G 12° 25′ 144° 51′ GU-1-H 12° 35′ 144° 15′ GU-1-I 12° 57′ 145° 33′ GU-1-J 13° 12′ 145° 43′ GU-1-K 13° 29′44″ 145° 48′ 27″ GU-1-A 14° 23′ 43″ 144° 27′ 36″ [FR Doc. E6-13269 Filed 8-11-06; 8:45 am] BILLING CODE 3510-22-S 71 156 Monday, August 14, 2006 Notices DEPARTMENT OF AGRICULTURE Farm Service Agency Temporary Storage for Grain Warehouse Operators Licensed Under the United States Warehouse Act AGENCY: Farm Service Agency, USDA. ACTION: Notice. SUMMARY: The Farm Service Agency
(FSA)announces, for the 2006 crops of wheat, corn, and grain sorghum, the conditions under which temporary storage space may be licensed under the United States Warehouse Act (USWA). DATES: August 14, 2006. FOR FURTHER INFORMATION CONTACT: Roger Hinkle, USWA Program Manager, USDA, Farm Service Agency, Warehouse and Inventory Division, 1400 Independence Avenue, SW., STOP 0553, Washington, DC 20250-0553; Telephone
(202)720-7433; Electronic mail: *Roger.Hinkle@wdc.usda.gov.* Persons with disabilities who require alternative means for communication for regulatory information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at
(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: Background The 2006 grain harvest is expected to exceed available commercial grain storage space in certain areas. USWA grain licensees may request, through FSA, licensing of temporary grain storage space under the USWA (7 U.S.C. 241 *et. seq.* ) under the terms announced in this notice. Temporary Grain Storage Requirements Upon written application, the USWA will continue to authorize and license the use of temporary grain storage space. Such space may be used from the time of initial licensing until July 1, 2007. Temporary grain storage structures must be operated in conjunction with a USWA-licensed grain warehouse. In addition: 1. An asphalt, concrete, or other approved base material must be used. 2. Rigid self-supporting sidewalls must be used. 3. Aeration must be provided. 4. Acceptable covering, as determined by FSA, must be provided. 5. Grain must be fully insured for all losses. 6. Warehouse operators must meet all financial and bonding requirements of the USWA. 7. Warehouse operators must maintain a separate record of all grain stored in temporary grain storage space and must account for such grain in the Daily Position Record. Application for Temporary Grain Storage USWA licensees should direct questions regarding the use of temporary grain storage to Terry Chapman, Chief, Licensing Branch, Warehouse License and Examination Division, at: Kansas City Commodity Office, Mail Stop 9148, P.O. Box 419205, Kansas City, MO 64141-6205. Telephone: 816-926-6474; Facsimile: 816-926-1774, E-mail: *terry.chapman@kcc.usda.gov.* Warehouse Operator's Liability The authorization and licensing of temporary grain storage space does not relieve warehouse operators of their obligations under the USWA or 7 CFR part 735. Warehouse operators are responsible for the quantity and quality of grain stored in temporary grain storage space to the same extent as their liability for licensed grain storage space. All grain stored in temporary grain storage space is considered a part of the warehouse operator's commingled grain inventory. The Department of Agriculture strongly recommends that warehouse operators review their warehouse security plans and conduct a prudent risk assessment in connection with the application of temporary grain storage space. Warehouse operators may want to pay particular attention to threats that may not have been considered significant in the past and consider restricting access to facilities to authorized personnel only. Limitation Licensing of temporary grain storage is limited to wheat, corn, and grain sorghum. Signed in Washington, DC on July 31, 2006. Teresa C. Lasseter, Administrator, Farm Service Agency. [FR Doc. E6-13223 Filed 8-11-06; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Forest Service Mendocino Resource Advisory Committee AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The Mendocino County Resource Advisory Committee will meet August 18, 2006
(RAC)in Willits, California. Agenda items to be covered include:
(1)Approval of minutes,
(2)Handout Discussion,
(3)Public Comment,
(4)Financial Report,
(5)Sub-committees,
(6)Matters before the group,
(7)Discussion—approval of projects,
(8)Next agenda and meeting date. DATES: The meeting will be held on August 18, 2006, from 9 a.m. until 12 noon. ADDRESSES: The meeting will be held at the Mendocino County Museum, located at 400 E. Commercial St., Willits, California. FOR FURTHER INFORMATION CONTACT: Roberta Hurt, Committee Coordinator, USDA, Mendocino National Forest, Covelo Ranger District, 78150 Covelo Road, Covelo, CA 95428.
(707)983-8503; E-mail *rhurt@fs.fed.us.* SUPPLEMENTARY INFORMATION: The meeting is open to the public. Persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff by August 12, 2006. Public comment will have the opportunity to address the committee at the meeting. Dated: August 6, 2006. Blaine Baker, Designated Federal Official. [FR Doc. 06-6892 Filed 8-11-06; 8:45am]
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Traces to 15 documents
U.S. Code
- Congressional findings and declaration of purpose§ 7401
- Cleanup standards§ 9621
- Civil proceedings§ 9613
- Public participation§ 9617
- Utilization of Federal technology§ 3710
- Policy and objective§ 200
- Records maintained on individuals§ 552a
- Definitions§ 601
- Periodic review of rules§ 610
- Purposes§ 3501
- Need for international defense cooperation and military export controls; Presidential waiver; report to Congress; arms sales policy§ 2751
- Findings, purposes and policy§ 1801
- Definitions§ 241
11 references not yet in our index
- 40 CFR 52
- 40 CFR 300
- 40 CFR 300.425(e)(1)(i)
- 45 CFR 5
- 37 CFR 401
- 37 CFR 404
- 45 CFR 7
- 41 USC 421
- 50 CFR 224
- 50 CFR 665
- 7 CFR 735
Citation graph
cites case law
Proposed Rules
Proposed rule
Cite40 CFR 52
Cite40 CFR 300
Cite40 CFR 300.425(e)(1)(i)
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