FR-2009-07-29

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					                                                                                                                                        7–29–09                                    Wednesday
                                                                                                                                        Vol. 74           No. 144                  July 29, 2009


                                                                                                                                        Pages 37495–37926
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                                                    II                                   Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009




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                                                                                                                                                                                                    III

                                                   Contents                                                                              Federal Register
                                                                                                                                         Vol. 74, No. 144

                                                                                                                                         Wednesday, July 29, 2009



                                                   Agricultural Marketing Service                                                           Requirements Applicable to Undefinitized Contract
                                                   RULES                                                                                        Actions (DFARS Case 2008–D029), 37649–37650
                                                   Apricots Grown in Designated Counties in Washington:                                     Restriction on Acquisition of Specialty Metals (DFARS
                                                    Decreased Assessment Rate, 37496–37499                                                      Case 2008–D003), 37626–37642
                                                   Nectarines and Peaches Grown in California:                                              Technical Amendments, 37642
                                                    Changes in Handling Requirements for Fresh Nectarines                                   Trade Agreements – Costa Rica and Peru (DFARS Case
                                                         and Peaches, 37495–37496                                                               2008–D046), 37650–37651
                                                                                                                                         PROPOSED RULES
                                                   Agriculture Department                                                                Defense Federal Acquisition Regulation Supplement:
                                                   See Agricultural Marketing Service                                                      Management of Unpriced Change Orders (DFARS Case
                                                   See Commodity Credit Corporation                                                            2008–D034), 37669–37671
                                                   NOTICES
                                                   Agency Information Collection Activities; Proposals,                                  Defense Department
                                                       Submissions, and Approvals, 37687                                                 See Defense Acquisition Regulations System
                                                   Intent to Establish a Charter:
                                                     Secure Rural Schools Resource Advisory Committees,                                  Education Department
                                                          37687–37688                                                                    NOTICES
                                                                                                                                         Agency Information Collection Activities; Proposals,
                                                   Alcohol and Tobacco Tax and Trade Bureau                                                  Submissions, and Approvals, 37698–37699
                                                   RULES                                                                                 Applications for Funding:
                                                   Permit Requirements:                                                                    Grant Program for Statewide Longitudinal Data Systems,
                                                     Qualification of Manufacturers and Importers of                                            37872–37876
                                                         Processed Tobacco; Expanded Definition of Roll-                                 Race to the Top Fund, 37804–37837
                                                         Your-Own Tobacco; Correction, 37551–37552                                       State Fiscal Stabilization Fund Program, 37837–37872
                                                   NOTICES
                                                   Agency Information Collection Activities; Proposals,                                  Election Assistance Commission
                                                      Submissions, and Approvals, 37770–37773                                            RULES
                                                                                                                                         Reorganization of National Voter Registration Act
                                                   Children and Families Administration                                                      Regulations, 37519–37521
                                                   NOTICES
                                                   Agency Information Collection Activities; Proposals,                                  Employment and Training Administration
                                                      Submissions, and Approvals, 37713                                                  NOTICES
                                                                                                                                         Amended Certification Regarding Eligibility To Apply for
                                                   Civil Rights Commission                                                                    Worker Adjustment Assistance, etc.:
                                                   NOTICES
                                                                                                                                           Chrysler, LLC, Sterling heights Assembly Plant, Sterling
                                                   Meetings; Sunshine Act, 37688                                                                Heights, MI, 37734
                                                                                                                                         Termination of Investigations:
                                                   Commerce Department
                                                   See Foreign–Trade Zones Board                                                           A.J. Oster, LLC, Allentown, PA, 37737
                                                   See International Trade Administration                                                  BonaKemi USA, Inc., Monroe, NC, 37736
                                                   See National Oceanic and Atmospheric Administration                                     Borg Warner Diversified Transmission Products, Inc.,
                                                                                                                                                Muncie, IN, 37734
                                                   Commodity Credit Corporation                                                            Camcar LLC–Rochester Operations, dba Acument Global
                                                   RULES                                                                                        Technologies, Rochester Operations, Rochester, IN,
                                                   Conservation Stewardship Program, 37499–37519                                                37735
                                                                                                                                           Circuit City, Coon Rapids, MN, 37736
                                                   Defense Acquisition Regulations System                                                  Federal Marine Terminals, Inc., Eastport, ME, 37737
                                                   RULES                                                                                   Freeport McMoran Copper and Gold, Tyrone, NM, 37735
                                                   Defense Federal Acquisition Regulation Supplement:                                      International Brotherhood of Electrical Workers, Local
                                                     Clarification of Central Contractor Registration and                                       Union 567, Lewiston, ME, 37736
                                                         Procurement Instrument Identification Data                                        J.T. Posey Company/Arcadia Manufacturing Group,
                                                         Requirements (DFARS Case 2008–D010), 37642–                                            Arcadia, CA, 37734
                                                         37644                                                                             Mitsubishi Heavy Industries, Climate Control, Inc.,
                                                     Contract Reporting (DFARS Case 2007–D006), 37644–                                          Franklin and Greenwood, IN, 37735
                                                         37645                                                                             North River Boats, Roseburg, OR, 37736
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                                                     Government Property (DFARS Case 2007–D020), 37645–                                    Penn–Union Corp., Edinboro, PA, 37737
                                                         37648                                                                             Plum Creek Marketing, Inc., Columbia Falls, MN, 37735
                                                     Motor Carrier Fuel Surcharge (DFARS Case 2008–D040),                                  Sealy Mattress Co., Clarion, PA, 37738
                                                         37652–37653                                                                       SER Enterprise/DHL Logistics, Ogden, UT, 37737
                                                     Peer Reviews of Contracts (DFARS Case 2008–D035),                                     Seymour Tubing, Inc., Dunlap, TN, 37737
                                                         37625–37626                                                                       Springs Global US, Inc., Sardis, MS, 37736
                                                     Protection of Human Subjects in Research Projects                                     Teradyne, Inc., Richardson, TX, 37737
                                                         (DFARS Case 2007–D008), 37648–37649                                               TNS Custom Research, Indiana, PA, 37734


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                                                   IV                          Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Contents


                                                      Tyrone Mining LLC, a Division of Freeport McMoran,                                    Empresa Brasileira de Aeronautica S.A. (EMBRAER)
                                                          Tyrone, NM, 37735                                                                    Model EMB 120, 120ER, 120FC, 120QC, and 120RT
                                                      United Association of Journeymen and Apprentices of the                                  Airplanes, 37521–37523
                                                          Plumbing and Pipefitting Industry, Augusta. ME,                                PROPOSED RULES
                                                          37736                                                                          Airworthiness Directives:
                                                      Western/Scott Fetzer Company, Avon Lake, OH, 37738                                   Boeing Model 737 600, 700, 700C, 800, 900, and 900ER
                                                      Williams Controls, Inc., Portland, OR, 37735                                             Series Airplanes, 37657–37658
                                                                                                                                         NOTICES
                                                   Employment Standards Administration                                                   Advisory Circular:
                                                   NOTICES                                                                                Comparative Endurance Test Method to Show Durability
                                                   Agency Information Collection Activities; Proposals,                                       for Parts Manufacturer Approval of Turbine Engine
                                                      Submissions, and Approvals, 37733–37734                                                 and Auxiliary Power Unit Parts, 37762–37763

                                                   Energy Department                                                                     Federal Bureau of Investigation
                                                   See Federal Energy Regulatory Commission                                              NOTICES
                                                   See Western Area Power Administration                                                 Agency Information Collection Activities; Proposals,
                                                                                                                                            Submissions, and Approvals, 37730
                                                   Environmental Protection Agency
                                                   RULES
                                                                                                                                         Federal Communications Commission
                                                   Approval and Promulgation of Air Quality Implementation                               RULES
                                                       Plans:                                                                            IP-Enabled Services, etc.:
                                                     Iowa; Update to Materials Incorporated by Reference,                                  Access to Telecommunications Service,
                                                          37556–37564                                                                          Telecommunications Equipment and Customer
                                                   Exemption from the Requirement of a Tolerance:                                              Premises Equipment by Persons with Disabilities,
                                                     Alkyl Alcohol Alkoxylate Phosphate and Sulfate                                            etc., 37624–37625
                                                          Derivatives, 37571–37578                                                       NOTICES
                                                     Ethylene Oxide Adducts of 2,4,7,9–tetramethyl–5–                                    Agency Information Collection Activities; Proposals,
                                                          decynediol, the Thylene Oxide Content Averages 3.5,                               Submissions, and Approvals, 37706–37709
                                                          10, or 30 Moles, 37605–37612
                                                     N,N,N′,N′′,–Tetrakis–(2–Hydroxypropyl)                                              Federal Election Commission
                                                          Ethylenediamine, 37564–37571                                                   RULES
                                                     N–alkyl (C8–C18) Primary Amines and Acetate Salts,                                  Reorganization of National Voter Registration Act
                                                          37578–37584                                                                        Regulations, 37519–37521
                                                     Sodium monoalkyl and dialkyl (C6–C16)
                                                          phenoxybenzenedisulfonates and related acids,
                                                                                                                                         Federal Energy Regulatory Commission
                                                          37598–37605
                                                                                                                                         RULES
                                                     Sodium N–oleoyl–N–methyl taurine, 37591–37598
                                                                                                                                         Wholesale Competition in Regions with Organized Electric
                                                     Sodium salts of N–alkyl (C8–C18)–beta–iminodipropionic
                                                                                                                                            Markets, 37776–37801
                                                          acid, 37584–37591                                                              PROPOSED RULES
                                                   Pesticide Tolerances:                                                                 Contract Reporting Requirements of Intrastate Natural Gas
                                                     Fenpyroximate, 37612–37618                                                             Companies, 37658–37666
                                                   Temporary Exemption From the Requirement of a                                         NOTICES
                                                       Tolerance:                                                                        Complaint:
                                                     S–Abscisic Acid, 37618–37621                                                          Californians for Renewable Energy, Inc., 37700
                                                   Time-Limited Pesticide Tolerances:                                                      Riviera Drilling & Exploration Co. v. SG Interests I, Ltd
                                                     Dichlormid, 37621–37623                                                                     and Gunnison Energy Corp., 37699–37700
                                                   NOTICES
                                                                                                                                         Filings:
                                                   Agency Information Collection Activities; Proposals,                                    Braintree Electric Light Department et al., 37701
                                                       Submissions, and Approvals, 37703–37705                                             Santa Clara, CA, 37700
                                                   Final Risk and Exposure Assessment Report for Sulfur                                    Vernon, CA, 37700–37701
                                                       Dioxide (SO2), 37705–37706                                                        Initial Market-Based Rate Filing:
                                                                                                                                           Lake Benton Power Partners II, LLC, 37701–37702
                                                   Executive Office of the President
                                                   See Presidential Documents
                                                   See Trade Representative, Office of United States                                     Federal Maritime Commission
                                                                                                                                         NOTICES
                                                   Export–Import Bank                                                                    Agreements Filed, 37709
                                                   NOTICES                                                                               Ocean Transportation Intermediary License Reissuances,
                                                   Agency Information Collection Activities; Proposals,                                      37709
                                                      Submissions, and Approvals, 37706                                                  Ocean Transportation Intermediary License Applicants,
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                                                                                                                                             37709–37710
                                                   Federal Aviation Administration                                                       Ocean Transportation Intermediary License Revocations,
                                                   RULES                                                                                     37710–37711
                                                   Airworthiness Directives:
                                                     Airbus Model A330–200, A330–300, A340–200, and                                      Federal Motor Carrier Safety Administration
                                                         A340–300 Series Airplanes, 37523–37527                                          RULES
                                                     BAE Systems (Operations) Limited Model BAe 146–100A                                 Regulatory Guidance on the Definition of Principal Place of
                                                         and 146–200A Series Airplanes, 37528–37530                                          Business, 37653–37654


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                                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Contents                                              V

                                                   NOTICES                                                                               International Trade Administration
                                                   Qualification of Drivers; Exemption Renewals; Vision,                                 NOTICES
                                                      37767                                                                              Initiation of Antidumping and Countervailing Duty
                                                                                                                                              Administrative Reviews and Deferral of Administrative
                                                   Federal Transit Administration                                                             Review, 37690–37693
                                                   NOTICES                                                                               Preliminary Results of Antidumping Duty Administrative
                                                   Additional Proposed Guidance for New Starts/Small Starts                                   Review:
                                                       Policies and Procedures and Request for Comments                                    Polyethylene Retail Carrier Bags from the People’s
                                                       (2009), 37760–37762                                                                       Republic of China, 37694–37698
                                                   Final Guidance on New Starts/Small Starts Policies and
                                                                                                                                         Justice Department
                                                       Procedures, 37763–37767
                                                                                                                                         See Federal Bureau of Investigation
                                                                                                                                         See Parole Commission
                                                   Food and Drug Administration                                                          NOTICES
                                                   NOTICES                                                                               Consent Decree:
                                                   Agency Information Collection Activities; Proposals,                                    United States v. American Premier Underwriters, Inc.,
                                                       Submissions, and Approvals, 37714–37715                                                 37729–37730
                                                   Determination of Regulatory Review Period for Purposes of
                                                       Patent Extension:                                                                 Labor Department
                                                     DUREZOL, 37716–37717                                                                See Employment and Training Administration
                                                     RAPAFLO, 37715–37716                                                                See Employment Standards Administration
                                                                                                                                         NOTICES
                                                                                                                                         Agency Information Collection Activities; Proposals,
                                                   Foreign–Trade Zones Board                                                                Submissions, and Approvals, 37731–37733
                                                   NOTICES
                                                   Expansion of Foreign–Trade Zone 49, Newark, NJ, Area,                                 Land Management Bureau
                                                       37688–37689                                                                       NOTICES
                                                   Foreign–Trade Zone 072 – Indianapolis, IN:                                            Coal Exploration License, Wyoming, 37727–37728
                                                     Application for Subzone, Brightpoint North America L.P.                             Environmental Impact Statements; Availability, etc.:
                                                         (Cell Phone Kitting and Distribution), Plainfield, IN,                            Proposed One Nevada Transmission Line, Nevada,
                                                         37689–37690                                                                            37728–37729
                                                                                                                                         Filing of PLats of Survey:
                                                                                                                                           Nevada, 37729
                                                   Health and Human Services Department
                                                   See Children and Families Administration                                              National Highway Traffic Safety Administration
                                                   See Food and Drug Administration                                                      RULES
                                                   See Health Resources and Services Administration                                      Requirements and Procedures for Consumer Assistance to
                                                   See National Institutes of Health                                                        Recycle and Save Program, 37878–37920
                                                   NOTICES
                                                   Agency Information Collection Activities; Proposals,                                  National Institutes of Health
                                                      Submissions, and Approvals, 37711–37713                                            NOTICES
                                                                                                                                         Agency Information Collection Activities; Proposals,
                                                   Health Resources and Services Administration                                             Submissions, and Approvals, 37713–37714
                                                   NOTICES                                                                               Meetings:
                                                   Statement of Organization, Functions and Delegations of                                Center for Scientific Review, 37717–37718
                                                       Authority, 37718–37723                                                             National Institute of Neurological Disorders and Stroke,
                                                                                                                                               37717–37718
                                                   Homeland Security Department                                                          National Oceanic and Atmospheric Administration
                                                   See Transportation Security Administration                                            RULES
                                                   See U.S. Immigration and Customs Enforcement                                          Atlantic Coastal Fisheries Cooperative Management Act
                                                                                                                                             Provisions; American Lobster Fishery, 37530–37551
                                                   Housing and Urban Development Department                                              Fisheries of the Exclusive Economic Zone Off Alaska:
                                                   NOTICES
                                                                                                                                           Northern Rockfish and Pelagic Shelf Rockfish for Trawl
                                                   Agency Information Collection Activities; Proposals,                                        Catcher Vessels Participating in Entry Level, etc.,
                                                       Submissions, and Approvals, 37725–37726                                                 37655
                                                   Funding Availability:                                                                   Pacific Ocean Perch for Catcher Processors Participating
                                                     (NOFA) for HUDs Fiscal Year (FY) 2009 Fair Housing                                        in the Rockfish Limited Access fishery, etc., 37656
                                                         Initiatives Program (FHIP), 37726                                                 Shortraker Rockfish in the Western Regulatory Area of
                                                     (NOFA) for HUDs Fiscal Year (FY) 2009 Resident                                            the Gulf of Alaska, 37654–37655
                                                                                                                                         PROPOSED RULES
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                                                         Opportunity and Self–Sufficiency (ROSS), etc.,
                                                                                                                                         Listing Endangered and Threatened Species and
                                                         37726–37727
                                                                                                                                              Designating Critical Habitat:
                                                   Redelegation of Authority for Homelessness Prevention and
                                                                                                                                           Finding on a Petition to List the Largetooth Sawfish
                                                       Rapid Re-Housing Program, 37727
                                                                                                                                                (Pristis perotteti) as an Endangered or Threatened
                                                                                                                                                Species, 37671–37674
                                                   Interior Department                                                                   Protective Regulations for Killer Whales in the Northwest
                                                   See Land Management Bureau                                                                 Region under the Endangered Species Act and Marine
                                                   See National Park Service                                                                  Mammal Protection Act, 37674–37686


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                                                   VI                          Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Contents


                                                   NOTICES                                                                               Trade Representative, Office of United States
                                                   Fisheries of the Caribbean, Gulf of Mexico, and South                                 NOTICES
                                                       Atlantic:                                                                         Free Trade Agreement with the Republic of Colombia;
                                                     Snapper–Grouper Fishery off the Southern Atlantic States                                Request for Comments, 37759–37760
                                                         and Coral and Coral Reefs Fishery in the South
                                                         Atlantic; Exempted Fishing Permit, 37689                                        Transportation Department
                                                   National Estuarine Research Reserve System, 37693–37694                               See Federal Aviation Administration
                                                                                                                                         See Federal Motor Carrier Safety Administration
                                                   National Park Service                                                                 See Federal Transit Administration
                                                   NOTICES                                                                               See National Highway Traffic Safety Administration
                                                   Availability of Draft Director’s Order:                                               See Transportation Security Administration
                                                    National Park Service Policies and Procedures Governing
                                                         its Dam Safety Program, 37727                                                   Transportation Security Administration
                                                                                                                                         NOTICES
                                                   National Science Foundation                                                           Agency Information Collection Activities; Proposals,
                                                   NOTICES                                                                                  Submissions, and Approvals, 37723–37724
                                                   Environmental Impact Statements; Availability, etc.:
                                                     Advanced Technology Solar Telescope Project at the                                  Treasury Department
                                                         Haleakala High Altitude Observatory site on the                                 See Alcohol and Tobacco Tax and Trade Bureau
                                                         Island of Maui, HI, 37738                                                       NOTICES
                                                                                                                                         Agency Information Collection Activities; Proposals,
                                                                                                                                            Submissions, and Approvals, 37768–37770
                                                   Office of United States Trade Representative
                                                   See Trade Representative, Office of United States
                                                                                                                                         U.S. Immigration and Customs Enforcement
                                                                                                                                         NOTICES
                                                   Parole Commission                                                                     Agency Information Collection Activities; Proposals,
                                                   NOTICES
                                                                                                                                            Submissions, and Approvals, 37724–37725
                                                   Record of Vote of Meeting Closure, 37731
                                                                                                                                         Veterans Affairs Department
                                                   Pension Benefit Guaranty Corporation                                                  NOTICES
                                                   PROPOSED RULES                                                                        Agency Information Collection Activities; Proposals,
                                                   USERRA Benefits under Title IV of ERISA, 37666–37669                                     Submissions, and Approvals, 37773–37774

                                                   Personnel Management Office                                                           Western Area Power Administration
                                                   NOTICES                                                                               NOTICES
                                                   Agency Information Collection Activities; Proposals,                                  Post-2010 Resource Pool, Pick–Sloan Missouri Basin
                                                      Submissions, and Approvals, 37738–37739                                                Program––Eastern Division, 37702–37703

                                                   Postal Regulatory Commission
                                                   RULES                                                                                 Separate Parts In This Issue
                                                   Priority Mail Contract, 37553–37556
                                                   NOTICES                                                                               Part II
                                                   Global Expedited Package Services Contract, 37739–37740                               Energy Department, Federal Energy Regulatory
                                                                                                                                             Commission, 37776–37801
                                                   Presidential Documents
                                                   PROCLAMATIONS                                                                         Part III
                                                   Special Observances:                                                                  Education Department, 37804–37876
                                                     Anniversary of the Americans with Disabilities Act (Proc.
                                                         8398), 37921–37924                                                              Part IV
                                                     National Korean War Veterans Armistice Day (Proc.                                   Transportation Department, National Highway Traffic
                                                         8399), 37925–37926                                                                  Safety Administration, 37878–37920

                                                   Securities and Exchange Commission                                                    Part V
                                                   NOTICES                                                                               Presidential Documents, 37921–37926
                                                   Agency Information Collection Activities; Proposals,
                                                        Submissions, and Approvals, 37740
                                                   Meetings; Sunshine Act, 37740                                                         Reader Aids
                                                   Order Granting Temporary Exemptions Under the                                         Consult the Reader Aids section at the end of this page for
                                                        Securities Exchange Act of 1934:                                                 phone numbers, online resources, finding aids, reminders,
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                                                     Eurex Clearing AG; Central Clearing of Credit Default                               and notice of recently enacted public laws.
                                                          Swaps, and Request for Comments, 37740–37748
                                                     ICE Clear Europe Limited; Central Clearing of Credit                                To subscribe to the Federal Register Table of Contents
                                                          Default Swaps, and Request for Comments, 37748–                                LISTSERV electronic mailing list, go to http://
                                                          37758                                                                          listserv.access.gpo.gov and select Online mailing list
                                                   Self-Regulatory Organizations; Proposed Rule Changes:                                 archives, FEDREGTOC-L, Join or leave the list (or change
                                                     Chicago Board Options Exchange, Inc., 37758–37759                                   settings); then follow the instructions.



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                                                                                       Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Contents                                VII

                                                    CFR PARTS AFFECTED IN THIS ISSUE

                                                    A cumulative list of the parts affected this month can be found in the
                                                    Reader Aids section at the end of this issue.

                                                    3 CFR                                              243...................................37669
                                                    Proclamations:                                     49 CFR
                                                    8398.................................37923         390...................................37653
                                                    8399.................................37925         512...................................37878
                                                                                                       599...................................37878
                                                    7 CFR
                                                    916...................................37495        50 CFR
                                                    917...................................37495        679 (3 documents) .........37654,
                                                    922...................................37496                                  37655, 37656
                                                    1470.................................37499         697...................................37530
                                                    11 CFR                                             Proposed Rules:
                                                    8.......................................37519      223...................................37671
                                                    9428.................................37519         224 (2 documents) .........37671,
                                                    14 CFR                                                                                   37674
                                                    39 (3 documents) ...........37521,
                                                                                37523, 37528
                                                    Proposed Rules:
                                                    39.....................................37657
                                                    15 CFR
                                                    902...................................37530
                                                    18 CFR
                                                    35.....................................37776
                                                    Proposed Rules:
                                                    284...................................37658
                                                    27 CFR
                                                    40.....................................37551
                                                    41.....................................37551
                                                    45.....................................37551
                                                    29 CFR
                                                    Proposed Rules:
                                                    4001.................................37666
                                                    4022.................................37666
                                                    39 CFR
                                                    3020.................................37553
                                                    40 CFR
                                                    52.....................................37556
                                                    180 (10 documents) .......37564,
                                                      37571, 37578, 37584, 37591,
                                                      37598, 37605, 37612, 37618,
                                                                                           37621
                                                    47 CFR
                                                    64.....................................37624
                                                    48 CFR
                                                    201...................................37625
                                                    202 (2 documents) .........37626,
                                                                                           37642
                                                    204 (3 documents) .........37642,
                                                                               37644, 37645
                                                    207 (2 documents) .........37625,
                                                                                           37648
                                                    212...................................37626
                                                    215...................................37625
                                                    217 (2 documents) .........37642,
                                                                                           37649
                                                    219...................................37644
                                                    225 (2 documents) .........37626,
                                                                                           37650
                                                    235...................................37648
                                                    236...................................37645
                                                    237 (2 documents) .........37625,
                                                                                           37645
                                                    239...................................37645
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                                                    245...................................37645
                                                    247...................................37652
                                                    252 (7 documents) .........37626,
                                                      37642, 37645, 37648, 37649,
                                                                               37650, 37652
                                                    253...................................37644
                                                    Proposed Rules:
                                                    215...................................37669
                                                    217...................................37669



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                                                                                                                                                                                             37495

                                             Rules and Regulations                                                                                          Federal Register
                                                                                                                                                            Vol. 74, No. 144

                                                                                                                                                            Wednesday, July 29, 2009



                                             This section of the FEDERAL REGISTER                     OrdersSmallBusinessGuide; or by                       considered the economic impact of this
                                             contains regulatory documents having general             contacting Jay Guerber, Marketing Order               action on small entities. Accordingly,
                                             applicability and legal effect, most of which            Administration Branch, Fruit and                      AMS has prepared this final regulatory
                                             are keyed to and codified in the Code of                 Vegetable Programs, AMS, USDA, 1400                   flexibility analysis.
                                             Federal Regulations, which is published under            Independence Avenue, SW., STOP                           The purpose of the RFA is to fit
                                             50 titles pursuant to 44 U.S.C. 1510.                                                                          regulatory actions to the scale of
                                                                                                      0237, Washington, DC 20250–0237;
                                             The Code of Federal Regulations is sold by               Telephone: (202) 720–2491, Fax: (202)                 business subject to such actions in order
                                             the Superintendent of Documents. Prices of               720–8938, or E-mail:                                  that small businesses will not be unduly
                                             new books are listed in the first FEDERAL                Jay.Guerber@ams.usda.gov.                             or disproportionately burdened.
                                             REGISTER issue of each week.                                                                                   Marketing orders issued pursuant to the
                                                                                                      SUPPLEMENTARY INFORMATION: This rule
                                                                                                                                                            Act, and rules issued thereunder, are
                                                                                                      is issued under Marketing Order Nos.
                                                                                                                                                            unique in that they are brought about
                                                                                                      916 and 917, both as amended (7 CFR
                                             DEPARTMENT OF AGRICULTURE                                                                                      through group action of essentially
                                                                                                      parts 916 and 917), regulating the
                                                                                                                                                            small entities acting on their own
                                             Agricultural Marketing Service                           handling of nectarines and peaches                    behalf.
                                                                                                      grown in California, respectively,
                                             7 CFR Parts 916 and 917                                  hereinafter referred to as the ‘‘orders.’’            Industry Information
                                                                                                      The orders are effective under the                       There are approximately 120
                                             [Doc. No. AMS–FV–08–0108; FV09–916/917–                  Agricultural Marketing Agreement Act
                                             1 FIR]                                                                                                         California nectarine and peach handlers
                                                                                                      of 1937, as amended (7 U.S.C. 601–674),               subject to regulation under the orders,
                                             Nectarines and Peaches Grown in                          hereinafter referred to as the ‘‘Act.’’               and approximately 550 producers of
                                             California; Changes in Handling                             The Department of Agriculture                      these fruits in the production area.
                                             Requirements for Fresh Nectarines                        (USDA) is issuing this rule in                        Small agricultural service firms, which
                                             and Peaches                                              conformance with Executive Order                      include handlers, are defined by the
                                                                                                      12866.                                                Small Business Administration (SBA)
                                             AGENCY: Agricultural Marketing Service,                     The shipping of ‘‘well-matured’’                   (13 CFR 121.201) as those whose annual
                                             USDA.                                                    nectarines and peaches grown in                       receipts are less than $7,000,000. Small
                                             ACTION: Affirmation of interim final rule                California is regulated by 7 CFR parts                agricultural producers are defined as
                                             as final rule.                                           916 and 917, respectively. Among other                those having annual receipts of less than
                                                                                                      things, certain varieties of fruit are                $750,000. A majority of these handlers
                                             SUMMARY: The Department of                               subject to variety-specific size
                                             Agriculture (USDA) is adopting, as a                                                                           and producers may be classified as
                                                                                                      restrictions. The lists of commercially-              small entities.
                                             final rule, without change, an interim                   significant varieties so regulated are                   For the 2008 season, the committees’
                                             final rule that changed the handling                     updated regularly as the volume of new                staff estimated that the average handler
                                             requirements applicable to well matured                  varieties increases and as older varieties            price received was $9.00 per container
                                             fruit covered under the nectarine and                    become obsolete. The sizes of varieties               or container equivalent of nectarines or
                                             peach marketing orders (orders). The                     not subject to variety-specific                       peaches. A handler would have to ship
                                             interim final rule updated the lists of                  regulations are regulated under generic               at least 777,778 containers to have
                                             commercially significant varieties                       regulations contained in the orders.                  annual receipts of $7,000,000. Given
                                             subject to size regulations under the                       In an interim final rule published in              data on shipments maintained by the
                                             orders. The interim final rule was                       the Federal Register on February 20,                  committees’ staff and the average
                                             necessary to revise the regulations for                  2009, and effective on February 21, 2009              handler price received during the 2008
                                             the current marketing season, which                      (74 FR 7778, Doc. No AMS–FV–08–                       season, the committees’ staff estimates
                                             began in April.                                          0108, FV09–916/917–1 IFR), §§ 916.356                 that approximately 78 percent of all the
                                             DATES: Effective Date: Effective July 30,                and 917.459 were amended by adding                    handlers within the industry would be
                                             2009.                                                    ten nectarine varieties and seven peach               considered small handlers.
                                             FOR FURTHER INFORMATION CONTACT:                         varieties to the lists of commercially-                  For the 2008 season, the committees
                                             Jennifer Robinson, Marketing Specialist,                 significant varieties that are subject to             estimated the average producer price
                                             or Kurt J. Kimmel, Regional Manager,                     variety-specific size regulations under               received was $4.25 per container or
                                             California Marketing Field Office,                       the orders. Additionally, four nectarine              container equivalent for nectarines and
                                             Marketing Order Administration                           varieties and five peach varieties were               peaches. A producer would have to
                                             Branch, Fruit and Vegetable Programs,                    removed from the variety-specific size                produce at least 176,471 containers of
                                             AMS, USDA; Telephone: (559) 487–                         regulations. Finally, a reference to the              nectarines and peaches to have annual
                                             5901, Fax: (559) 487–5906; or E-mail:                    regulation of other than ‘‘well-matured’’             receipts of $750,000. Given data
                                             Jen.Robinson@ams.usda.gov or                             peaches was removed from                              maintained by the committees’ staff and
                                             Kurt.Kimmel@ams.usda.gov.                                § 917.459(a)(6)(iii) to conform with                  the average producer price received
                                                Small businesses may obtain
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                                                                                                      previous changes to the order.                        during the 2008 season, the committees’
                                             information on complying with this and                                                                         staff estimates that more than 88 percent
                                             other marketing order regulations by                     Final Regulatory Flexibility Analysis                 of the producers within the industry
                                             viewing a guide at the following Web                       Pursuant to requirements set forth in               would be considered small producers.
                                             site: http://www.ams.usda.gov/                           the Regulatory Flexibility Act (RFA) (5                  With an average producer price of
                                             AMSv1.0/ams.fetchTemplateData.do?                        U.S.C. 601–612), the Agricultural                     $4.25 per container or container
                                             template=TemplateN&page=Marketing                        Marketing Service (AMS) has                           equivalent, and a combined packout of


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                                             37496             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             nectarines and peaches of 45,543,561                     members and others who have                           change, as published in the Federal
                                             containers, the value of the 2008                        requested them, and are also available                Register (74 FR 7778, February 20,
                                             packout is estimated to be $193,560,134.                 on the committees’ Web site, thereby                  2009) will tend to effectuate the
                                             Dividing this total estimated grower                     increasing the availability of this critical          declared policy of the Act.
                                             revenue figure by the estimated number                   information within the industry.
                                                                                                         Regarding the impact of this action on             List of Subjects
                                             of producers (550) yields an estimated
                                             average revenue per producer of about                    the affected entities, both large and                 7 CFR Part 916
                                             $351,928 from the sales of peaches and                   small entities are expected to benefit
                                                                                                                                                              Marketing agreements, Nectarines,
                                             nectarines.                                              from the changes, and the costs of
                                                Under authority provided in §§ 916.52                 compliance are not expected to be                     Reporting and recordkeeping
                                             and 917.41 of the orders, grade, size,                   significantly different between large and             requirements.
                                             maturity, pack, and container marking                    small entities.                                       7 CFR Part 917
                                             requirements are established for fresh                      This rule will not impose any
                                                                                                      additional reporting or recordkeeping                   Marketing agreements, Peaches, Pears,
                                             shipments of California nectarines and
                                                                                                      requirements on either small or large                 Reporting and recordkeeping
                                             peaches, respectively. Such
                                                                                                      nectarine and peach handlers. As with                 requirements.
                                             requirements are in effect on a
                                             continuing basis.                                        all Federal marketing order programs,                 PARTS 916 AND 917—[AMENDED]
                                                Sections 916.356 and 917.459 of the                   reports and forms are periodically
                                             orders’ rules and regulations establish                  reviewed to reduce information                        ■ Accordingly, the interim final rule
                                             minimum sizes for various varieties of                   requirements and duplication by                       that amended 7 CFR parts 916 and 917
                                             nectarines and peaches. This rule                        industry and public sector agencies.                  and that was published at 74 FR 7778
                                             continues in effect the action that                         In addition, as noted in the initial               on February 20, 2009, is adopted as final
                                             adjusted the minimum fruit sizes                         regulatory flexibility analysis, USDA                 rule, without change.
                                             authorized for certain varieties of each                 has not identified any relevant Federal
                                                                                                      rules that duplicate, overlap, or conflict              Dated: July 24, 2009.
                                             commodity for the 2009 season.
                                             Minimum size regulations are put in                      with this rule.                                       Rayne Pegg,
                                             place to encourage producers to leave                       Further, the committees’ meetings                  Administrator, Agricultural Marketing
                                             fruit on the trees for a longer period of                were widely publicized throughout the                 Service.
                                             time, increasing both maturity and fruit                 nectarine and peach industry and all                  [FR Doc. E9–18099 Filed 7–28–09; 8:45 am]
                                             size. Increased fruit size increases the                 interested parties were invited to attend             BILLING CODE 3410–02–P
                                             number of packed containers per acre                     the meetings and participate in
                                             and, coupled with heightened maturity                    committee deliberations. Like all
                                             levels, also provides greater consumer                   committee meetings, the November 25,                  DEPARTMENT OF AGRICULTURE
                                             satisfaction, which in turn fosters repeat               2008, meetings were public meetings
                                             purchases that benefit producers and                     and all entities, both large and small,               Agricultural Marketing Service
                                             handlers alike.                                          were able to express their views on this
                                                Annual adjustments to minimum                         issue. Also, the committees have a                    7 CFR Part 922
                                             sizes of nectarines and peaches, such as                 number of appointed subcommittees to                  [Doc. No. AMS–FV–09–0038; FV09–922–1
                                             these, are recommended by the                            review certain issues and make                        IFR]
                                             committees based upon historical data,                   recommendations to the committees.
                                             producer and handler information                         The committees’ Tree Fruit Quality                    Apricots Grown in Designated
                                             regarding sizes attained by different                    Subcommittee met on October 29, 2008,                 Counties in Washington; Decreased
                                             varieties, and trends in consumer                        and discussed this issue in detail. That              Assessment Rate
                                             purchases.                                               meeting was also a public meeting and
                                                An alternative to such action would                                                                         AGENCY: Agricultural Marketing Service,
                                                                                                      both large and small entities were able
                                             include not establishing minimum size                    to participate and express their views.               USDA.
                                             regulations for these new varieties. Such                   Comments on the interim final rule                 ACTION: Interim final rule with request
                                             an action, however, would be a                           were required to be received on or                    for comments.
                                             significant departure from the                           before April 21, 2009. One comment,
                                             committees’ past practices and represent                                                                       SUMMARY: This rule decreases the
                                                                                                      supporting the interim final rule, was
                                             a significant change in the regulations as               received. Therefore, for the reasons                  assessment rate established for the
                                             they currently exist. For these reasons,                 given in the interim final rule, we are               Washington Apricot Marketing
                                             this alternative was not recommended.                    adopting the interim final rule as a final            Committee (Committee) for the 2009–
                                                The committees make                                   rule, without change.                                 2010 and subsequent fiscal periods from
                                             recommendations regarding the                               To view the interim final rule and the             $2.00 to $1.00 per ton of apricots
                                             revisions in handling requirements after                 comment received, go to http://                       handled. The Committee locally
                                             considering all available information,                   www.regulations.gov/fdmspublic/                       administers the marketing order, which
                                             including comments received by                           component/                                            regulates the handling of apricots grown
                                             committee staff. At the meetings, the                    main?main=DocketDetail&d=AMS-FV-                      in designated counties in Washington.
                                             impact of and alternatives to these                      08-0108.                                              Assessments upon apricot handlers are
                                             recommendations are deliberated. The                        This action also affirms information               used by the Committee to fund
                                             committees consist of individual                         contained in the interim final rule                   reasonable and necessary expenses of
                                             producers and handlers with many                                                                               the program. The fiscal period begins
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                                                                                                      concerning Executive Orders 12866 and
                                             years of experience in the industry who                  12988, the Paperwork Reduction Act (44                April 1 and ends March 31. The
                                             are familiar with industry practices and                 U.S.C. Chapter 35), and the E-Gov Act                 assessment rate will remain in effect
                                             trends. All committee meetings are open                  (44 U.S.C. 101).                                      indefinitely unless modified,
                                             to the public and comments are widely                       After consideration of all relevant                suspended, or terminated.
                                             solicited. In addition, minutes of all                   material presented, it is found that                  DATES: Effective July 30, 2009.
                                             meetings are distributed to committee                    finalizing the interim final rule, without            Comments received by September 28,


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                        37497

                                             2009, will be considered prior to                        such assessments. It is intended that the             decreased assessment rate of $1.00 per
                                             issuance of a final rule.                                assessment rate as issued herein will be              ton. In comparison, last year’s budgeted
                                             ADDRESSES: Interested persons are                        applicable to all assessable apricots                 expenditures were $7,093. The
                                             invited to submit written comments                       beginning April 1, 2009, and continue                 recommended assessment rate is $1.00
                                             concerning this rule. Comments must be                   until amended, suspended, or                          less than the $2.00 rate in effect since
                                             sent to the Docket Clerk, Marketing                      terminated. This rule will not preempt                the 2008–2009 fiscal period. The
                                             Order Administration Branch, Fruit and                   any State or local laws, regulations, or              Committee recommended the
                                             Vegetable Programs, AMS, USDA, 1400                      policies, unless they present an                      assessment rate decrease to help offset
                                             Independence Avenue, SW., STOP                           irreconcilable conflict with this rule.               the increase in income that would have
                                             0237, Washington, DC 20250–0237; Fax:                       The Act provides that administrative               accompanied the much larger apricot
                                             (202) 720–8938; or Internet: http://                     proceedings must be exhausted before                  crop projected for this summer. This
                                             www.regulations.gov. Comments should                     parties may file suit in court. Under                 assessment rate reduction will also have
                                             reference the docket number and the                      section 608c(15)(A) of the Act, any                   the effect of maintaining the
                                             date and page number of this issue of                    handler subject to an order may file                  Committee’s monetary reserve at a level
                                             the Federal Register and will be                         with USDA a petition stating that the                 commensurate with program objectives
                                             available for public inspection in the                   order, any provision of the order, or any             and requirements.
                                             Office of the Docket Clerk during regular                obligation imposed in connection with                    The major expenditures
                                             business hours, or can be viewed at:                     the order is not in accordance with law               recommended by the Committee for the
                                             http://www.regulations.gov. All                          and request a modification of the order               2009–2010 fiscal period are $4,800 for
                                             comments submitted in response to this                   or to be exempted therefrom. Such                     the management fee and $3,043 for
                                             rule will be included in the record and                  handler is afforded the opportunity for               operational expenses, which include
                                             will be made available to the public.                    a hearing on the petition. After the                  travel expenses, financial audit,
                                             Please be advised that the identity of the               hearing USDA would rule on the                        compliance, insurance and bonds,
                                             individuals or entities submitting the                   petition. The Act provides that the                   equipment maintenance and
                                             comments will be made public on the                      district court of the United States in any            miscellaneous expenses. In comparison,
                                             Internet at the address provided above.                  district in which the handler is an                   budgeted expenses for the 2008–2009
                                                                                                      inhabitant, or has his or her principal               seasons were $4,800 and $2,293,
                                             FOR FURTHER INFORMATION CONTACT:
                                                                                                      place of business, has jurisdiction to                respectively.
                                             Robert J. Curry or Gary D. Olson,
                                                                                                      review USDA’s ruling on the petition,                    The assessment rate recommended by
                                             Northwest Marketing Field Office,                                                                              the Committee was derived by dividing
                                                                                                      provided an action is filed not later than
                                             Marketing Order Administration                                                                                 anticipated expenses by expected
                                                                                                      20 days after the date of the entry of the
                                             Branch, Fruit and Vegetable Programs,                                                                          shipments of Washington apricots.
                                                                                                      ruling.
                                             AMS, USDA, 1220 SW. Third Avenue,                           This rule decreases the assessment                 Applying the $1.00 per ton assessment
                                             Suite 385, Portland, OR 97204;                           rate established for the Committee for                rate to the Committee’s 7,600 ton crop
                                             telephone: (503) 326–2724, Fax: (503)                    the 2009–2010 and subsequent fiscal                   estimate should provide $7,600 in
                                             326–7440; or e-mail:                                     periods from $2.00 to $1.00 per ton of                assessment income. The assessment
                                             Robert.Curry@ams.usda.gov or                             apricots handled.                                     income, in addition to approximately
                                             GaryD.Olson@ams.usda.gov.                                   The order provides authority for the               $243 from the Committee’s reserve
                                                Small businesses may request                          Committee, with the approval of USDA,                 would be adequate to cover the
                                             information on complying with this                       to formulate an annual budget of                      recommended $7,843 budget for the
                                             regulation by contacting Jay Guerber,                    expenses and collect assessments from                 2009–2010 fiscal period. Funds in the
                                             Marketing Order Administration                           handlers to administer the program. The               reserve ($8,609 as of March 31, 2009),
                                             Branch, Fruit and Vegetable Programs,                    members of the Committee are                          would be kept within the maximum
                                             AMS, USDA, 1400 Independence Ave.,                       producers and handlers in designated                  permitted by the order of approximately
                                             SW., STOP 0237, Washington, DC                           counties in Washington. They are                      one fiscal period’s operational expenses
                                             20250–0237; telephone: (202) 720–2491;                   familiar with the Committee’s needs and               (§ 922.42.)
                                             Fax: (202) 720–8938; or e-mail:                          with the costs for goods and services in                 The assessment rate established with
                                             Jay.Guerber@ams.usda.gov.                                their local area and are thus in a                    this rule will continue in effect
                                             SUPPLEMENTARY INFORMATION: This rule                     position to formulate an appropriate                  indefinitely unless modified,
                                             is issued under Marketing Agreement                      budget and assessment rate. The                       suspended, or terminated by USDA
                                             and Order No. 922 (7 CFR 922),                           assessment rate was formulated and                    upon recommendation and information
                                             regulating the handling of apricots                      discussed at a public meeting, thus all               submitted by the Committee or other
                                             grown in designated counties in                          directly affected persons had an                      available information.
                                             Washington, hereinafter referred to as                   opportunity to participate and provide                   Although the assessment rate is
                                             the ‘‘order.’’ The order is effective under              input.                                                effective for an indefinite period, the
                                             the Agricultural Marketing Agreement                        For the 2008–2009 and subsequent                   Committee will continue to meet prior
                                             Act of 1937, as amended (7 U.S.C. 601–                   fiscal periods, the Committee                         to or during each fiscal period to
                                             674), hereinafter referred to as the                     recommended, and USDA approved, an                    recommend a budget of expenses and
                                             ‘‘Act.’’                                                 assessment rate of $2.00 per ton of fresh             consider recommendations for
                                                The Department of Agriculture                         apricots handled. This assessment rate                modification of the assessment rate. The
                                             (USDA) is issuing this rule in                           continues in effect from fiscal period to             dates and times of Committee meetings
                                             conformance with Executive Order                         fiscal period unless modified,                        are available from the Committee or
                                                                                                                                                            USDA. Committee meetings are open to
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                                             12866.                                                   suspended, or terminated by USDA
                                                This rule has been reviewed under                     upon recommendation and information                   the public and interested persons may
                                             Executive Order 12988, Civil Justice                     submitted by the Committee or other                   express their views at these meetings.
                                             Reform. Under the marketing order now                    information available to USDA.                        USDA would evaluate the Committee
                                             in effect, Washington apricot handlers                      The Committee met on May 21, 2009,                 recommendations and other available
                                             are subject to assessments. Funds to                     and unanimously recommended 2009–                     information to determine whether
                                             administer the order are derived from                    2010 expenditures of $7,843 and a                     modification of the assessment rate is


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                                             37498             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             needed. Further rulemaking will be                       apricot crop of 7,600 tons, assessment                forms are periodically reviewed to
                                             undertaken as necessary. The                             income combined with funds from the                   reduce information requirements and
                                             Committee’s 2009–2010 budget and                         Committee’s monetary reserve should be                duplication by industry and public
                                             those for subsequent fiscal periods will                 adequate to cover budgeted expenses.                  sector agencies. Furthermore, USDA has
                                             be reviewed and, as appropriate,                         The Committee recommended                             not identified any relevant Federal rules
                                             approved by USDA.                                        decreasing the assessment rate by 50                  that duplicate, overlap, or conflict with
                                                                                                      percent due to the near doubling of the               this rule.
                                             Initial Regulatory Flexibility Analysis
                                                                                                      crop estimate this year compared to the                 AMS is committed to complying with
                                                Pursuant to requirements set forth in                 crop actually harvested last year. With               the E-Government Act, to promote the
                                             the Regulatory Flexibility Act (RFA) (5                  current crop and expense estimates, the               use of the Internet and other
                                             U.S.C. 601–612), the Agricultural                        Committee estimates that its reserve                  information technologies to provide
                                             Marketing Service (AMS) has                              fund at the end of the 2009–2010 fiscal               increased opportunities for citizen
                                             considered the economic impact of this                   period will be about $8,300. This is                  access to Government information and
                                             rule on small entities. Accordingly,                     approximately one fiscal period’s                     services, and for other purposes.
                                             AMS has prepared this initial regulatory                 operational expenses as authorized by
                                             flexibility analysis.                                                                                            A small business guide on complying
                                                                                                      the order (§ 922.42).
                                                The purpose of the RFA is to fit                         The major expenditures                             with fruit, vegetable, and specialty crop
                                             regulatory actions to the scale of                       recommended by the Committee for the                  marketing agreements and orders may
                                             business subject to such actions in order                2009–2010 fiscal period include $4,800                be viewed at: http://www.ams.usda.gov/
                                             that small businesses will not be unduly                 for the management fee and $3,043 for                 AMSv1.0/ams.fetchTemplateData.do?
                                             or disproportionately burdened.                          operational expenses. In comparison,                  template=TemplateN&page=Marketing
                                             Marketing orders issued pursuant to the                  budgeted expenses for the 2008–2009                   OrdersSmallBusinessGuide. Any
                                             Act, and the rules issued thereunder, are                seasons were $4,800 and $2,293,                       questions about the compliance guide
                                             unique in that they are brought about                    respectively.                                         should be sent to Jay Guerber at the
                                             through group action of essentially                         The Committee discussed alternatives               previously mentioned address in the
                                             small entities acting on their own                       to this rule. With the potential for a                FOR FURTHER INFORMATION CONTACT
                                             behalf.                                                  much larger crop this season,                         section.
                                                There are approximately 300                           assessment rates over $1.00 per ton were                After consideration of all relevant
                                             producers of fresh apricots in the                       not seriously considered because of the               material presented, including the
                                             regulated production area and                            potential of generating too much income               information and recommendation
                                             approximately 22 handlers subject to                     and thus increasing the reserve fund to               submitted by the Committee and other
                                             regulation under the order. Small                        an amount higher than program                         available information, it is hereby found
                                             agricultural producers are defined by                    requirements allow.                                   that this rule, as hereinafter set forth,
                                             the Small Business Administration (13                       A review of historical information and             will tend to effectuate the declared
                                             CFR 121.201) as those having annual                      preliminary information pertaining to                 policy of the Act.
                                             receipts of less than $750,000, and small                the upcoming crop year indicates that                   Pursuant to 5 U.S.C. 553, it is also
                                             agricultural service firms are defined as                the producer price for the 2009–2010                  found and determined upon good cause
                                             those whose annual receipts are less                     season could average about $1,000 per                 that it is impracticable, unnecessary,
                                             than $7,000,000.                                         ton. Therefore, the estimated assessment              and contrary to the public interest to
                                                Based on information compiled by                      revenue for the 2009–2010 fiscal period               give preliminary notice prior to putting
                                             National Agricultural Statistics Service,                as a percentage of total producer                     this rule into effect, and that good cause
                                             the value of Washington’s total apricot                  revenue could approximate 0.1 percent.                exists for not postponing the effective
                                             production in 2008 was $6,601,000.                          This action decreases the assessment               date of this rule until 30 days after
                                             Since the Committee reports that there                   obligation imposed on handlers.
                                                                                                                                                            publication in the Federal Register
                                             are 300 producers, the average annual                    Assessments are applied uniformly on
                                                                                                                                                            because: (1) The 2009–2010 fiscal
                                             farm-gate revenue from the sale of                       all handlers, and some of the costs may
                                                                                                                                                            period began on April 1, and the
                                             apricots last year was approximately                     be passed on to producers. However,
                                                                                                                                                            marketing order requires that the rate of
                                             $22,000 per producer. In addition, based                 decreasing the assessment rate reduces
                                                                                                                                                            assessment for each fiscal period apply
                                             on Committee records and 2008 f.o.b.                     the burden on handlers, and may reduce
                                                                                                                                                            to all assessable Washington apricots
                                             prices ranging from $20.00 to $26.00 per                 the burden on producers. In addition,
                                                                                                                                                            handled during such fiscal period; (2)
                                             24-pound loose-pack carton as reported                   the Committee’s meeting was widely
                                                                                                                                                            this action decreases the assessment rate
                                             by AMS Market News Service, the                          publicized throughout the Washington
                                                                                                                                                            for assessable apricots beginning with
                                             average annual revenue per handler in                    apricot industry and all interested
                                                                                                                                                            the 2009–2010 fiscal period; (3)
                                             2008 was $357,197. In view of the                        persons were invited to attend and
                                                                                                                                                            handlers are aware of this action which
                                             foregoing, the majority of Washington                    participate in the Committee’s
                                                                                                                                                            was unanimously recommended by the
                                             apricot producers and handlers may be                    deliberations on all issues. Like all
                                                                                                                                                            Committee at a public meeting; and (4)
                                             classified as small entities.                            Committee meetings, the May 21, 2009,
                                                                                                                                                            this interim final rule provides a 60-day
                                                This rule decreases the assessment                    meeting was a public meeting and all
                                                                                                                                                            comment period, and all comments
                                             rate established for the Committee and                   entities, both large and small, were able
                                                                                                                                                            timely received will be considered prior
                                             collected from handlers for the 2009–                    to express views on this issue. Finally,
                                                                                                                                                            to finalization of this ruled.
                                             2010 and subsequent fiscal periods from                  interested persons are invited to submit
                                             $2.00 to $1.00 per ton. The Committee                    information on the regulatory and                     List of Subjects in 7 CFR Part 922
                                             unanimously recommended 2009–2010
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                                                                                                      informational impacts of this action on
                                             expenditures of $7,843 and the                                                                                   Apricots, Marketing agreements,
                                                                                                      small businesses.
                                             decreased assessment rate at the May                        This action imposes no additional                  Reporting and recordkeeping
                                             21, 2009, meeting. The recommended                       reporting or recordkeeping requirements               requirements.
                                             assessment rate is $1.00 less than the                   on either small or large Washington                   ■ For the reasons set forth in the
                                             rate in effect since the 2008–2009 fiscal                apricot handlers. As with all Federal                 preamble, 7 CFR part 922 is amended as
                                             period. With an estimated 2009–2010                      marketing order programs, reports and                 follows:


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                        37499

                                             PART 922—APRICOTS GROWN IN                               follow the instructions for sending                   www.nrcs.usda.gov/programs/csp/
                                             DESIGNATED COUNTIES IN                                   comments electronically;                              under the CSP Rules and Notices with
                                             WASHINGTON                                                  • E-mail directly to NRCS:                         Supporting Documents title.
                                                                                                      CSP2008@wdc.usda.gov;
                                             ■ 1. The authority citation for 7 CFR                       • Mail: Gregory Johnson, Director,                 Regulatory Flexibility Act
                                             part 922 continues to read as follows:                   Financial Assistance Programs Division,                 NRCS has determined that the
                                                 Authority: 7 U.S.C. 601–674.                         U.S. Department of Agriculture, Natural               Regulatory Flexibility Act is not
                                                                                                      Resources Conservation Service, 1400                  applicable to this interim final rule
                                             ■ 2. Section 922.235 is revised to read                  Independence Avenue, SW., Room                        because NRCS is not required by 5
                                             as follows:                                              5237–S, Washington, DC 20250–2890;                    U.S.C. 553, or any other provision of
                                             § 922.235    Assessment rate.                               • Fax: (202) 720–4265;                             law, to publish a notice of proposed
                                                                                                         • Hand Delivery Room: USDA South                   rulemaking with respect to the subject
                                               On or after April 1, 2009, an
                                                                                                      Building, 1400 Independence Avenue,                   matter of this rule.
                                             assessment rate of $1.00 per ton is
                                                                                                      SW., Room 5237–S, Washington, DC
                                             established for the Washington Apricot                                                                         Environmental Analysis
                                                                                                      20250, between 9 a.m. and 4 p.m.,
                                             Marketing Committee.                                                                                             Availability of the Environmental
                                                                                                      Monday through Friday, except Federal
                                               Dated: July 24, 2009.                                  Holidays. Please ask the guard at the                 Assessment (EA) and Finding of No
                                             Rayne Pegg,                                              entrance to the South Building to call                Significant Impact (FONSI). A
                                             Administrator, Agricultural Marketing                    (202) 720–4527 in order to be escorted                programmatic environmental
                                             Service.                                                 into the building;                                    assessment has been prepared in
                                             [FR Doc. E9–18108 Filed 7–28–09; 8:45 am]                   • This interim final rule may be                   association with this rulemaking. The
                                             BILLING CODE 3410–02–P                                   accessed via the Internet. Users can                  analysis has determined that there will
                                                                                                      access the NRCS homepage at http://                   not be a significant impact to the human
                                                                                                      www.nrcs.usda.gov; select the Farm Bill               environment and as a result an
                                             DEPARTMENT OF AGRICULTURE                                link from the menu; select the Interim                Environmental Impact Statement is not
                                                                                                      final link from beneath the Final and                 required to be prepared (40 CFR part
                                             Commodity Credit Corporation                             Interim Final Rules Index title. Persons              1508.13). The EA and FONSI are
                                                                                                      with disabilities who require alternative             available for review and comment for 30
                                             7 CFR Part 1470                                          means for communication (Braille, large               days from the date of publication of this
                                             RIN 0578–AA43                                            print, audio tape, etc.) should contact               interim final rule in the Federal
                                                                                                      the USDA TARGET Center at: (202)                      Register. A copy of the EA and FONSI
                                             Conservation Stewardship Program                         720–2600 (voice and TDD).                             may be obtained from the following
                                                                                                      FOR FURTHER INFORMATION CONTACT:                      Web site: http://www.nrcs.usda.gov/
                                             AGENCY: Commodity Credit Corporation,                                                                          programs/Env_Assess/. A hard copy
                                             Natural Resources Conservation Service,                  Gregory Johnson, Director, Financial
                                                                                                      Assistance Programs Division, U.S.                    may also be requested from the
                                             United States Department of                                                                                    following address and contact: Matt
                                             Agriculture.                                             Department of Agriculture, Natural
                                                                                                      Resources Conservation Service, 1400                  Harrington, National Environmental
                                             ACTION: Interim final rule with request                                                                        Coordinator, Ecological Sciences
                                                                                                      Independence Avenue, SW., Room
                                             for comment.                                                                                                   Division, NRCS, 1400 Independence
                                                                                                      5237–S, Washington, DC 20250; Phone:
                                                                                                      (202) 720–1845; Fax: (202) 720–4265; or               Ave., SW., Washington, DC 20250.
                                             SUMMARY: Section 2301 of the Food,
                                                                                                      e-mail CSP2008@wdc.usda.gov.                          Comments from the public should be
                                             Conservation, and Energy Act of 2008
                                                                                                                                                            specific and reference that comments
                                             (the 2008 Act) amended the Food                          SUPPLEMENTARY INFORMATION:
                                                                                                                                                            provided are on the EA and FONSI.
                                             Security Act of 1985 to establish the
                                                                                                      Regulatory Certifications                             Public comment may be submitted by
                                             Conservation Stewardship Program. The
                                                                                                                                                            any of the following means: (1) E-mail
                                             purpose of the Conservation                              Executive Order 12866
                                                                                                                                                            comments to NEPA2008@wdc.usda.gov;
                                             Stewardship Program is to encourage                        Pursuant to Executive Order 12866                   (2) e-mail to e-gov Web site at http://
                                             producers to address resource concerns                   (FR Doc. 93–24523, September 30,                      www.regulations.gov; or (3) written
                                             in a comprehensive manner by                             1993), this interim final rule with                   comments to: Matt Harrington, National
                                             undertaking additional conservation                      request for comment is an economically                Environmental Coordinator, Ecological
                                             activities, and improving, maintaining                   significant regulatory action since it                Sciences Division, NRCS, 1400
                                             and managing existing conservation                       results in an annual effect on the                    Independence Ave., SW., Washington,
                                             activities. This interim final rule, with                economy of $100 million or more. The                  DC 20250.
                                             request for comment, sets forth the                      administrative record is available for
                                             policies, procedures, and requirements                   public inspection in Room 5831 of the                 Civil Rights Impact Analysis
                                             necessary to implement the                               South Building, USDA, 1400                               NRCS has determined through a Civil
                                             Conservation Stewardship Program as                      Independence Avenue, SW.,                             Rights Impact Analysis that the interim
                                             authorized by the 2008 Act                               Washington, DC. Pursuant to Executive                 final rule discloses no
                                             amendments.                                              Order 12866, NRCS conducted an                        disproportionately adverse impacts for
                                             DATES: Effective Date: This interim final                economic analysis of the potential                    minorities, women, or persons with
                                             rule is effective July 29, 2009.                         impacts associated with this program. A               disabilities. The data presented
                                                Comment Date: Submit comments on                      summary of the economic analysis can                  indicates producers who are members of
                                             or before September 28, 2009.                            be found at the end of this preamble and              the protected groups have participated
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                                             ADDRESSES: You may send comments                         a copy of the analysis is available upon              in NRCS conservation programs at
                                             (identified by Docket Number NRCS–                       request from Gregory Johnson, Director,               parity with other producers.
                                             IFR–09004) using any of the following                    Financial Assistance Programs Division,               Extrapolating from historical
                                             methods:                                                 Natural Resources Conservation Service,               participation data, it is reasonable to
                                                • Government-wide rulemaking Web                      Room 5237–S, Washington, DC 20250–                    conclude that NRCS programs,
                                             site: Go to http://regulations.gov and                   2890 or electronically at: http://                    including CSP, will continue to be


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                                             37500             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             administered in a non-discriminatory                     therefore, a risk assessment is not                    12,769,000 acres for each fiscal year
                                             manner. Outreach and communication                       required. However, risks associated with               (FY) for the period beginning October 1,
                                             strategies are in place to ensure all                    the interim final rule have been assessed              2008, and ending on September 30,
                                             producers will be provided the same                      pursuant to the analysis prepared in                   2017. For fiscal years 2009 through
                                             information to allow them to make                        compliance with Executive Order                        2012, CSP has been authorized
                                             informed compliance decisions                            12866.                                                 51,076,000 acres (four years multiplied
                                             regarding the use of their lands that will                                                                      by a 12,769,000 acre program cap per
                                                                                                      Unfunded Mandates Reform Act of 1995
                                             affect their participation in USDA                                                                              year).
                                             programs. CSP applies to all persons                        NRCS assessed the effects of this                      This analysis builds on the former
                                             equally regardless of their race, color,                 rulemaking action on State, local, and                 Conservation Security Program
                                             national origin, gender, sex, or disability              tribal governments, and the public. This               introduced in 2004 with its foundation
                                             status. Therefore, the CSP rule portends                 action does not compel the expenditure                 set in the Farm Security and Rural
                                             no adverse civil rights implications for                 of $100 million or more by any State,                  Investment Act of 2002, Public Law
                                             women, minorities and persons with                       local, or tribal governments, or anyone                107–171 (2002 Farm Bill). While the
                                             disabilities.                                            in the private sector; therefore, a                    spirit of both programs is similar, the
                                                                                                      statement under section 202 of the                     main focus of the 2008 Act CSP is to
                                             Paperwork Reduction Act                                  Unfunded Mandates Reform Act of 1995                   assist landowners with adopting
                                                Section 2904 of the 2008 Act provides                 is not required.                                       additional conservation enhancements.
                                             that the promulgation of regulations and                 Economic Analysis—Executive                            This focus is characterized by the
                                             the administration of Title II of the 2008               Summary                                                emphasis placed on new enhancement
                                             Act, which contain the amendments                                                                               activities selected by participants in the
                                             that authorize CSP, shall be made                           Pursuant to Executive Order 12866,                  application ranking process. However,
                                             without regard to chapter 35 of Title 44                 Regulatory Planning and Review, the                    basic eligibility criteria and ranking will
                                             of the United States Code, also known                    Natural Resources Conservation Service                 also consider the benchmark level of
                                             as the Paperwork Reduction Act.                          (NRCS) conducted a cost-effectiveness                  stewardship and planned conservation
                                             Therefore, NRCS is not reporting                         analysis (CEA) of the Conservation                     activities to be adopted (if needed in
                                             recordkeeping or estimated paperwork                     Stewardship Program (CSP) as                           those cases where participants do not
                                             burden associated with this interim                      formulated for the interim final rule.                 meet the stewardship threshold
                                             final rule.                                              This CEA describes how financial                       requirements). The environmental
                                                                                                      assistance (FA) and technical assistance               benefits expected to be generated by
                                             Government Paperwork Elimination Act                     (TA) are made available through CSP                    enhancement and maintenance
                                               NRCS is committed to compliance                        with the program objective being to                    activities are based on extrapolations of
                                             with the Government Paperwork                            have producers adopt additional                        the environmental benefits generated
                                             Elimination Act, which requires                          conservation activities. The CEA                       from many traditional NRCS
                                             Government agencies, in general, to                      attempts to compare the impact of these                conservation practices (these are
                                             provide the public the option of                         activities in generating environmental                 described in detail in Appendix B).
                                             submitting information or transacting                    benefits with program costs. Many of                   However, while environmental impacts
                                             business electronically to the maximum                   these improvements can produce                         from many traditional NRCS
                                             extent possible. To better accommodate                   beneficial impacts concerning on-site                  conservation practices have been
                                             public access, NRCS has developed an                     resource conditions (such as the                       assessed, the impacts generated from
                                             online application and information                       maintenance of the long-term                           enhancement and maintenance
                                             system for public use.                                   productivity of their land), and can                   activities are not well understood. In
                                                                                                      potentially produce significant off-site               conducting economic analyses where
                                             Executive Order 12988                                    environmental benefits, such as reduced                benefits are not well understood or
                                                This interim final rule has been                      non-point source pollution, improved                   difficult to measure, but costs are
                                             reviewed in accordance with Executive                    air quality due to lower carbon dioxide                available, economists often turn to a
                                             Order 12988, Civil Justice Reform. The                   emissions, and enhanced wildlife                       cost-effectiveness analysis (CEA)
                                             provisions of this interim final rule are                habitat.                                               framework over the more traditional
                                             not retroactive. The provisions of this                     In considering alternatives for                     benefit-cost analysis approach. The
                                             interim final rule preempt State and                     implementing CSP, the United States                    environmental impacts from
                                             local laws to the extent that such laws                  Department of Agriculture (USDA)                       enhancement and maintenance
                                             are inconsistent with this interim final                 followed the legislative intent to                     activities are not well understood, and
                                             rule. Before an action may be brought in                 establish a clear and transparent method               therefore, NRCS is adopting the CEA
                                             a Federal court of competent                             and determine in an open participatory                 approach for this CSP economic
                                             jurisdiction, the administrative appeal                  process, potential participants’ current               analysis.
                                             rights afforded persons at 7 CFR parts                   level of conservation stewardship
                                                                                                      attainment levels in order to gauge their              Methodology Employed in This Study
                                             614, 780, and 11 must be exhausted.
                                                                                                      environmental impact and compare                         As stated above, many conservation
                                             Federal Crop Insurance Reform and                        them. The CSP is a voluntary program,                  practices have been extensively studied,
                                             Department of Agriculture                                and therefore, the program is not                      but similar studies pertaining to
                                             Reorganization Act of 1994                               expected to impose any obligation or                   enhancement activities have not been
                                               Section 304 of the Department of                       burden upon agricultural producers and                 conducted. As a result, estimation of a
                                             Agriculture Reorganization Act of 1994,                  non-industrial private forestland owners               true baseline of environmental
sroberts on DSKD5P82C1PROD with RULES




                                             Public Law 103–354, requires that a risk                 who choose not to participate.1                        conditions before and after CSP
                                             assessment be prepared in conjunction                    Congress authorized the enrollment of                  implementation is not possible. The
                                             with any notice of proposed rulemaking                                                                          methodology employed in this study
                                                                                                        1 An impact could be expected in cases where
                                             for a major regulation. Pursuant to                      CSP funds activities that lead to large increases of
                                                                                                                                                             involves the modeling of baseline
                                             Section 2904 of the 2008 Act, NRCS is                    certain environmental services and goods where         environmental conditions through
                                             promulgating this interim final rule, and                those markets are beginning to get started.            Microsoft Access. The model is complex


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                         37501

                                             because it is based on the major                         model then produces an index of                       constraints will pose similar challenges
                                             decision rules in the Conservation                       environmental benefits reflecting the                 in implementing this program. In
                                             Measurement Tool (CMT). The CMT                          total level of additional enhancement                 particular, achieving the national
                                             refers to the procedures developed by                    activities selected by participants to be             annual acreage enrollment goal at the
                                             NRCS to estimate the existing and                        addressed (the ‘‘additionality’’ point                designated average costs per acre
                                             proposed conservation performance to                     total). Given this basic data on potential            mandated in legislation will be a
                                             be achieved by a producer. This model                    participants’ stewardship benchmarks                  challenge given the heterogeneity of
                                             has a high degree of uncertainty because                 and willingness to adopt new activities,              producers’ baseline resource conditions
                                             CSP is a new program and it is difficult                 the model compares expected producer                  and demand for enhancements.
                                             to project the potential pool of                         activity costs with their expected CSP                   • When large operations enter into
                                             applicants without historical enrollment                 annual payments. The major producer                   the program and reach their annual
                                             data. This study’s model distills the                    decision to participate in CSP in the                 contract limit ($40,000), CSP gains
                                             basic rules of the CMT and couples it                    model is if expected CSP payments                     program acreage, but pushes per acre
                                             with a historical data on producer                       offset at least 50 percent of the costs of            program costs down. By effectively
                                             characteristics. These data include                      adopting the associated conservation                  lowering total program costs on a per
                                             internal NRCS program data, past                         activities.                                           acre basis, the additions of large
                                             studies on conservation stewardship,                        The baseline in this analysis                      operations enable the program to offer
                                             other USDA data and information as                       represents a pre-statute scenario. Due to             higher payment rates for other farm
                                             well as expert opinion from agency                       the fact that each policy scenario selects            types and sizes, holding all else
                                             technology and program specialists.                      applicants from different pools, no                   constant. For example, a 10,000 acre
                                             This expert opinion was needed in                        ‘‘generic’’ baseline scenario could be                wheat farm in Montana that ‘‘hits’’ its
                                             making several key assumptions about                     determined. Instead the analysis adjusts              payment limitation would be recorded
                                             expected producer response to CSP and                    the level of benchmark conservation                   as having a $4 per acre program cost
                                             in turn likely participation as well as                  performance points in each scenario to                ($40,000 divided by 10,000 acres).
                                             resource response to conservation                        account for what would have been                         Conservation activity costs were
                                             activities. The model applies questions,                 generated without CSP (pre-statute).                  adjusted to account for economies of
                                             similar to those in the CMT, to a                           The model allows USDA to verify if                 scale on the part of large operations.
                                             representative set of farms constructed                  the national CSP average per acre                     Without such adjustments, larger farms
                                             with the historical data. Using                          annual payment rate has been met                      tended not to enter into CSP contracts
                                             simulated responses for the                              under a number of different program                   because their per-acre costs would
                                             representative farms to the questions in                 designs. More importantly, it can also                remain constant as their per-acre
                                             the CMT regarding the applicant’s                                                                              payments were effectively lowered (as
                                                                                                      estimate the trade-off between different
                                             agriculture operation, the model                                                                               their payment cap was ‘‘hit’’ as
                                                                                                      policy designs and expected
                                             predicts expected participation by land-                                                                       explained above). Thus without such
                                                                                                      conservation performance outcomes in a
                                             use type and farm type along with                                                                              adjustments, their large size increased
                                                                                                      cost-effectiveness framework. Such
                                             expected program costs and                                                                                     their farm-level costs while at the same
                                                                                                      program design choices include varying
                                             conservation performance points.                                                                               time restricted their ability to accrue
                                                                                                      the relative weights across ranking
                                                The responses can be grouped by                                                                             additional CSP payments beyond the
                                                                                                      factors used in the participant ranking
                                             CSP’s ranking factors. The first ranking                                                                       payment cap. This finding shows the
                                                                                                      process and the expected results from
                                             factor, RF–1, is the level of conservation                                                                     importance that farm size will play in
                                                                                                      varying other program parameters, such
                                             treatment on priority resource concerns                                                                        an applicants’ decision to participate in
                                                                                                      as relative weights on different priority             CSP. It also shows how sensitive actual
                                             at the time of application. RF–1 is used
                                                                                                      resource concerns and stewardship                     enrollment and program costs are to the
                                             to establish an initial or baseline
                                                                                                      threshold levels. The main policy                     types and sizes of farms expected to
                                             ‘‘hypothetical’’ index of environmental
                                                                                                      options studied in this analysis involve              enroll in CSP.
                                             conditions for each applicant’s
                                                                                                      the first item listed above; that is, the                The ability to place different weights
                                             operation. The total level of
                                                                                                      impact on acreage, conservation                       on ranking factors in a predictive model
                                             conservation performance points
                                                                                                      performance points, and program costs                 provides insights into expected changes
                                             reflects the number of existing and
                                                                                                      from associated options varying the                   in program and conservation
                                             planned conservation activities
                                             multiplied by a range of points from ¥5                  relative weights across ranking factors               performance outcomes. Program design
                                             to +5 for each activity; producers are                   used in the participant ranking process.              is critical in satisfying the statutory
                                             assigned a point estimate based on their                 Conclusions and Recommendations                       requirements of this program. In
                                             response on the CMT. Individual                                                                                comparing several alternative policy
                                                                                                        Results of alternative policy options               options, model results showed that the
                                             applicant’s conservation performance
                                                                                                      suggest that there may be a set of general            cost-based conservation performance
                                             points are aggregated to create a
                                                                                                      conclusions that policy makers should                 point payment levels used in this
                                             ‘‘hypothetical’’ baseline of
                                                                                                      consider. These include:                              analysis were not capable of achieving
                                             environmental conditions for the Nation
                                                                                                        • The policy constraints on the                     the legislated national $18 average per
                                             (in this case, the Nation is that sub-set
                                                                                                      statutory requirements for the program                acre program cost in all options. This is
                                             of all farmers and ranchers by farm type
                                                                                                      posed serious challenges for the model                due to the changing land-use
                                             and land-use type expected to apply for
                                                                                                      developers. It is obvious that these                  compositions and conservation
                                             CSP).
                                                Based on responses to the remaining                                                                         performance outcomes which resulted
                                                                                                      the CSP contract; and, RF–4 is the extent to which
                                                                                                                                                            under each alternative policy option.
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                                             three ranking factors 2 in the CMT, the                  other resource concerns will be addressed to meet
                                                                                                      or exceed the stewardship threshold by the end of     They also highlight the trade-offs that
                                                2 These remaining three ranking factors are: RF–      the CSP contract. These three ranking factors         exist between alternative policy options
                                             2 is the degree to which treatment on priority           determine the level of ‘‘additionality’’ created      with respect to attaining as close an
                                             resource concerns increases conservation                 through the new enhancement activities associated
                                             performance by the end of the CSP contract; RF–          with the CSP contract, whereas the previous
                                                                                                                                                            acreage goal as is mandated; program
                                             3 is the number of priority resource concerns to be      ranking factor establishes the benchmark level of     costs; cost-effectiveness; and
                                             treated to meet or exceed threshold by the end of        conservation stewardship.                             conservation performance.


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                                             37502                  Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                Comparisons of alternative policy                                   performance points are adjusted.                            is made available. Only Government
                                             options (see Table 1) indicate that                                    Making these adjustments puts PO–3                          costs are included in this cost estimate
                                             enrolled program acreage is maximized                                  and PO–4 in strong contention for                           given the wide set of possible initial
                                             by adopting policy option 4 (PO–4).                                    policy consideration.                                       resource conditions and enhancement
                                             However, PO–4 violates the national                                      Both PO–2 and PO–5 satisfied the                          practices likely to be adopted. Because
                                             program per acre cost constraint. All                                  national program per acre cost                              of this diversity in initial resource
                                             other alternative policy options                                       constraint. However, both options                           conditions, it was not possible to
                                             produced lower program acreage totals                                  produced much lower totals of                               ascertain whether (or to what extent)
                                             as compared with PO–1.                                                 conservation performance points than                        CSP payments off-set expected costs to
                                                Comparisons showed that program                                     other policy alternatives. In addition                      adopt enhancement and other
                                             costs were lowest in PO–2, which also                                  PO–5 produced a more equitable                              conservation stewardship activities by
                                             showed good cost-effectiveness, but                                    distribution of program acreage across
                                                                                                                                                                                producers or past costs incurred to
                                             whose program acreage, as compared to                                  land-use types than any other policy
                                             PO–1 and all other alternative policy                                                                                              attain stewardship thresholds. Given
                                                                                                                    option.
                                             options, was the lowest. Total program                                   These comparisons showed that the                         this caveat, cumulative program costs
                                             costs were highest with PO–4, which                                    total conservation performance points                       for four program sign-ups are estimated
                                             provided strong evidence of luring                                     generated would be maximized in PO–                         to be $3.27 billion in constant 2007
                                             strong participation and production of                                 4 and at the least cost-effectiveness rate                  dollars, discounted at 7 percent. At a 3
                                             conservation performance points from                                   on an adjusted point basis. However,                        percent discount rate, this estimation
                                             new enhancements, but violated the                                     PO–4 violates the $18 average per acre                      increases to $3.86 billion. These costs
                                             national program per acre cost                                         program cost constraint. In its favor,                      assume that the duration of each
                                             constraint.                                                            PO–4 produces the highest level of                          contract is five years and the program
                                                Cost-effectiveness estimates suggest                                conservation performance points                             duration is offered for four years (FY
                                             that all alternative policy options and                                emanating from new conservation                             2009 to FY 2012). In the case where
                                             the baseline produce about the same                                    activities. PO–3 attained the next                          program duration is offered for nine
                                             cost-effectiveness (about $0.37 to $0.39                               highest conservation performance point                      years (FY 2009 to FY 2017), cumulative
                                             per point on a total point basis). PO–2                                total, but PO–3 violated the $18 average                    program costs for nine program sign-ups
                                             and PO–5 produced the most favorable                                   per acre program cost constraint to a                       are estimated to be $6.3 billion using
                                             cost-effectiveness estimates on a total                                greater extent than did PO–4.                               constant 2007 dollars discounted at 7
                                             point basis, but results are different                                   The analysis assumes full                                 percent. At a 3 percent discount rate,
                                             when benchmark conservation                                            participation each year that the program                    this estimate increases to $8.1 billion.

                                             TABLE 1—SUMMARY OF SIMULATION RESULTS OF PROGRAM ACREAGE AND ASSOCIATED PROGRAM COSTS, BY LAND-USE
                                                                                TYPE FOR CSP POLICY OPTIONS
                                                                                                                                     Acres funded in program                                    Total program cost
                                                                                                                                       (in millions of acres)                                 (in millions of dollars)
                                                   Cost per acre                        Policy   option 1
                                                                                                                                                     Range-                                                  Range-
                                                                                                                    Cropland           Pasture                      Total 2     Cropland       Pasture                        Total
                                                                                                                                                      land                                                    land

                                             N/A ............................   No Program 3 ............                    0              0             0              0           $0             $0             $0            $0
                                             17.78 .........................    PO–1 .........................               8.3            2.2           1.1           11.6        182.7           18.3            4.5         205.5
                                             15.74 .........................    PO–2 .........................               8.6            1.9           0.9           11.3        160.0           14.6            3.8         178.3
                                             19.25 .........................    PO–3 .........................               9.0            1.6           0.8           11.5        204.2           13.8            3.3         221.3
                                             18.96 .........................    PO–4 .........................               9.0            1.8           0.9           11.8        203.4           15.8            3.7         222.9
                                             16.93 .........................    PO–5 .........................               8.0            2.4           1.2           11.5        170.6           19.5            4.9         195.0
                                                1 PO–1  assumes an equal weight on each ranking factor.
                                                PO–2 assumes a 62.5 percent weight on RF–1 and a 12.5 percent weight on RF–2, RF–3, and RF–4.
                                                PO–3 assumes a 62.5 percent weight on RF–2 and a 12.5 percent weight on RF–1, RF–3, and RF–4.
                                                PO–4 assumes a 62.5 percent weight on RF–3 and a 12.5 percent weight on RF–1, RF–2, and RF–4.
                                                PO–5 assumes a 62.5 percent weight on RF–4 and a 12.5 percent weight on RF–1, RF–2, and RF–3.
                                                2 Annual CSP acreage cap is 12.769 million acres with 10 percent allocated to non-industrial private forestland (NIPF) leaving roughly 11.5 mil-
                                             lion acres for cropland, pasture, and rangeland acreage.
                                                3 No program scenario assumes that CSP is not available to landowners. As discussed in the text, some level of benchmark conservation per-
                                             formance points are assumed to be generated in the absence of CSP. The exact amount is difficult to determine because maintenance of exist-
                                             ing conservation measures vary due to several factors, such as fluctuations in personal economic conditions and preferences, advancing age,
                                             and changing resource priorities. In addition, the applicant pool in each alternative policy scenario is made up of different farm types and land-
                                             use types. These conditions preclude the estimation of a ‘‘generic’’ baseline applied to all alternative policy options. As a result, maintenance on
                                             existing conservation measures is assumed to generate 90 percent of the benchmark conservation performance points estimated in each
                                             scenario.

                                              TABLE 2—SUMMARY OF SIMULATION RESULTS OF THE CONSERVATION PERFORMANCE POINTS AND COST EFFECTIVENESS
                                                                               INDICATORS FOR CSP POLICY OPTIONS
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                                                                                                                        Benchmark                                                                        Dollars per point
                                                                                                     (in millions of conservation performance points)
                                                      Policy Option 1                                                                                                          Total points       Incremental
                                                                                                                                                                                                 plus enhance-           Total points
                                                                                                      Baseline 2                       Incremental       Enhancement                                  ment

                                             No Program 2 ......................          Indeterminate ......................                   None                 N/A               N/A                  N/A                  N/A
                                             PO–1 ...................................     124.47 .................................               13.83              329.8             468.1                $0.51                $0.38



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                                              TABLE 2—SUMMARY OF SIMULATION RESULTS OF THE CONSERVATION PERFORMANCE POINTS AND COST EFFECTIVENESS
                                                                          INDICATORS FOR CSP POLICY OPTIONS—Continued
                                                                                                                        Benchmark                                                                 Dollars per point
                                                                                                     (in millions of conservation performance points)
                                                    Policy     Option 1                                                                                                   Total points       Incremental
                                                                                                                                                                                            plus enhance-     Total points
                                                                                                       Baseline 2                     Incremental      Enhancement                               ment

                                             PO–2   ...................................   135.36 .................................           15.04               251.8             402.2             0.56              0.37
                                             PO–3   ...................................   106.2 ...................................           11.8               377.2             495.2             0.50              0.39
                                             PO–4   ...................................   107.46 .................................           11.94               385.6             505.0             0.49              0.38
                                             PO–5   ...................................   126.99 .................................           14.11               309.0             450.0             0.51              0.37
                                                1 PO–1 assumes an equal weight on each ranking factor.
                                               PO–2 assumes a 62.5 percent weight on RF–1 and a 12.5 percent weight on RF–2, RF–3, and RF–4.
                                               PO–3 assumes a 62.5 percent weight on RF–2 and a 12.5 percent weight on RF–1, RF–3, and RF–4.
                                               PO–4 assumes a 62.5 percent weight on RF–3 and a 12.5 percent weight on RF–1, RF–2, and RF–4.
                                               PO–5 assumes a 62.5 percent weight on RF–4 and a 12.5 percent weight on RF–1, RF–2, and RF–3.
                                               2 Baseline (pre-statute) assumes that CSP is not offered.
                                               3 No program scenario assumes that CSP is not available to landowners. As discussed in the text, some level of benchmark conservation per-
                                             formance points are assumed to be generated in the absence of CSP. The exact amount is difficult to determine because maintenance of exist-
                                             ing conservation measures vary due to several factors, such as fluctuations in personal economic conditions and preferences, advancing age,
                                             and changing resource priorities. In addition, the applicant pool in each alternative policy scenario is made up of different farm types and land-
                                             use types. These conditions preclude the estimation of a ‘‘generic’’ baseline applied to all alternative policy options. As a result, maintenance on
                                             existing conservation measures is assumed to generate 90 percent of the benchmark conservation performance points estimated in each
                                             scenario.


                                                NRCS analysis indicates that policy                                     (3) To demonstrate whether long-term               the sections of these regulations that
                                             options PO–3 and PO–4 demonstrated                                      conservation benefits of the program are              apply to program participants and that
                                             the highest degree of cost-effectiveness                                being achieved;                                       relate to the Agency accountability
                                             and environmental performance                                              (4) To track participation by crop and             requirements as outlined in Section
                                                                                                                     livestock type; and
                                             improvement. As a result, NRCS is                                          (5) To coordinate activities described in
                                                                                                                                                                           1244(g) of the 1985 Act.
                                             giving strong consideration to policy                                   this subsection with the national
                                                                                                                                                                             Monitor compliance with program
                                             options PO–3 and PO–4 for subsequent                                    conservation program authorized under                 requirements. NRCS has established
                                             signup periods.                                                         section 5 of the Soil and Water Resources             application procedures to ensure that
                                                                                                                     Conservation Act of 1977 (16 U.S.C. 2004).’’          participants meet eligibility
                                                For the initial signup period, NRCS
                                                                                                                                                                           requirements, and follow-up procedures
                                             recommends that the CSP program                                           This new provision presents in one                  to ensure that participants are
                                             design place equal weight on the                                        place the accountability requirements                 complying with the terms and
                                             considered program ranking factors                                      placed on the Agency as it implements                 conditions of their contractual
                                             until program performance is                                            conservation programs and reports on                  arrangement with the government and
                                             established. Given that program                                         program results. The requirements                     that the installed conservation measures
                                             performance has not been established,                                   apply to all programs under Subtitle D,               are operating as intended. These and
                                             NRCS seeks public comment on which                                      including the Wetlands Reserve                        related program compliance evaluation
                                             option best enables NRCS to meet                                        program, the Conservation Security                    policies are set forth in Agency
                                             program objectives. In addition, NRCS is                                Program, the Conservation Stewardship                 guidance (Conservation Programs
                                             requesting public comment on the                                        Program, the Farm and Ranch Lands                     Manual_440_Part 512 and Conservation
                                             appropriate weighting of the five                                       Protection Program, the Grassland                     Programs Manual _440_Part 508)
                                             ranking factors to maximize cost-                                       Reserve Program, the Environmental                    (http://directives.sc.egov.usda.gov/).
                                             effectively environmental benefits while                                Quality Incentives Program (including                 The program requirements applicable to
                                             maintaining consistency with the                                        the Agricultural Water Enhancement                    participants that relate to compliance
                                             statutory purposes of the program.                                      Program), the Wildlife Habitat Incentive              are set forth in these regulations in
                                             NRCS will consider these public                                         Program, and the Chesapeake Bay                       § 1470.6, ‘‘Eligibility requirements,’’
                                             comments when revising the weighting                                    Watershed initiative. These                           § 1470.21, ‘‘Contract requirements,’’
                                             of these ranking factors prior to the next                              requirements are not directly                         § 1470.22 ‘‘Conservation stewardship
                                             subsequent ranking period. The CSP                                      incorporated into these regulations,                  plan,’’ and § 1470.23, ‘‘Conservation
                                             rule will be finalized in FY 2010.                                      which set out requirements for program                activity operation and maintenance.’’
                                             Section 2708 of the 2008 Act                                            participants. However, certain                        These sections make clear the general
                                                                                                                     provisions within these regulations                   program eligibility requirements,
                                               Section 2708, ‘‘Compliance and                                        relate to elements of Section 1244(g) of              participant obligations for implementing
                                             Performance,’’ of the 2008 Act added a                                  the 1985 Act and the Agency’s                         a conservation stewardship plan,
                                             paragraph to Section 1244(g) of the 1985                                accountability responsibilities regarding             contract obligations, and requirements
                                             Act entitled, ‘‘Administrative                                          program performance. NRCS is taking                   for operating and maintaining CSP-
                                             Requirements for Conservation                                           this opportunity to describe existing                 funded conservation activities.
                                             Programs,’’ which states the following:                                 procedures that relate to meeting the                   Measure program performance.
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                                               ‘‘(g) Compliance and performance.—For                                 requirements of Section 1244(g) of the                Pursuant to the requirements of the
                                             each conservation program under Subtitle D,                             1985 Act, and Agency expectations for                 Government Performance and Results
                                             the Secretary shall develop procedures—                                 improving its ability to report on each               Act of 1993 (Pub. L. 103–62, Sec. 1116)
                                               (1) To monitor compliance with program                                program’s performance and                             and guidance provided by OMB Circular
                                             requirements;                                                           achievement of long-term conservation                 A–11, NRCS has established
                                               (2) To measure program performance;                                   benefits. Also included is reference to               performance measures for its


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                                             conservation programs. Program-funded                    Conservation Effects Assessment Project               2008 Act reauthorized and expanded on
                                             conservation activity is captured                        (CEAP), which has been underway since                 a number of elements of the RCA related
                                             through automated field-level business                   2003, will provide nationally consistent              to evaluating program performance and
                                             tools and the information is made                        estimates of environmental effects                    conservation benefits. Specifically, the
                                             publicly available at: http://                           resulting from conservation practices                 2008 Act added a provision stating,
                                             ias.sc.egov.usda.gov/PRSHOME/.                           and systems applied. CEAP results will                   Appraisal and inventory of resources,
                                             Program performance also is reported                     be used in conjunction with                           assessment and inventory of conservation
                                             annually to Congress and the public                      performance data gathered through                     needs, evaluation of the effects of
                                             through the annual performance budget,                   Agency field-level business tools to help             conservation practices, and analyses of
                                             annual accomplishments report, and the                   produce estimates of environmental                    alternative approaches to existing
                                             USDA Performance Accountability                          effects accomplished through Agency                   conservation programs are basic to effective
                                             Report. Related performance                              programs, such as CSP. In 2006 a Blue                 soil, water, and related natural resources
                                                                                                                                                            conservation.
                                             measurement and reporting policies are                   Ribbon panel evaluation of CEAP 4
                                             set forth in Agency guidance                             strongly endorsed the project’s purpose,                 The program, performance, and
                                             (GM_340_401 and GM_340_403 (http://                      but concluded ‘‘CEAP must change                      natural resource and effects data
                                             directives.sc.egov.usda.gov/)).                          direction’’ to achieve its purposes. In               described previously will serve as a
                                                The conservation actions undertaken                   response, CEAP has focused on                         foundation for the next RCA, which will
                                             by participants are the basis for                        priorities identified by the Panel and                also identify and fill, to the extent
                                             measuring program performance—                           clarified that its purpose is to quantify             possible, data and information gaps.
                                             specific actions are tracked and reported                the effects of conservation practices                 Policy and procedures related to the
                                             annually, while the effects of those                     applied on the landscape. Information                 RCA are set forth in Agency guidance
                                             actions relate to whether the long-term                  regarding CEAP, including reviews and                 (GM_290_400 and GM_130_402)
                                             benefits of the program are being                        current status, is available at http://               (http://directives.sc.egov.usda.gov/).
                                             achieved. The program requirements                       www.nrcs.usda.gov/technical/NRI/                         The coordination of the previously
                                             applicable to participants that relate to                ceap/. Since 2004 and the initial                     described components with the RCA is
                                             undertaking conservation actions are set                 establishment of long-term performance                an Agency responsibility and is not
                                             forth in these regulations in § 1470.21,                 measures by program, NRCS has been                    reflected in these regulations. However,
                                             ‘‘Contract requirements,’’ § 1470.22                     estimating and reporting progress                     it is likely that results from the RCA
                                             ‘‘Conservation stewardship plan,’’ and                   toward long-term program goals. Natural               process will result in modifications to
                                             § 1470.23, ‘‘Conservation activity                       resource inventory and assessment, and                the program and performance data
                                             operation and maintenance.’’ These                       performance measurement and                           collected, to the systems used to acquire
                                             sections make clear participant                          reporting policies are set forth in                   data and information, and potentially to
                                             obligations for implementing, operating,                 Agency guidance (GM_290_400;                          the program itself. Thus, as the
                                             and maintaining conservation                             GM_340_401; GM_340_403) (http://                      Secretary proceeds to implement the
                                             stewardship activities, which in                         directives.sc.egov.usda.gov/).                        RCA in accordance with the statute, the
                                             aggregate result in the program                             Demonstrating the long-term                        approaches and processes developed
                                             performance that is reflected in Agency                  conservation benefits of conservation                 will improve existing program
                                             performance reports.                                     programs is an Agency responsibility.                 performance measurement and outcome
                                                Demonstrating the long-term natural                   Through CEAP, NRCS is in the process                  reporting capability and provide the
                                             resource benefits achieved through                       of evaluating how these long-term                     foundation for improved
                                             conservation programs is subject to the                  benefits can be achieved through the                  implementation of the program
                                             availability of needed data, the capacity                conservation practices and systems                    performance requirements of Section
                                             and capability of modeling approaches,                   applied by participants under each of its             1244(g) of the 1985 Act.
                                             and the external influences that affect                  programs. The CSP program                             Discussion of Program
                                             actual natural resource condition. While                 requirements applicable to participants
                                             NRCS captures many measures of                           that relate to producing long-term                       The Food, Conservation, and Energy
                                             ‘‘output’’ data, such as acres of                        conservation benefits are located in                  Act of 2008 (2008 Act) amended the
                                             conservation practices, it is still in the               § 1470.21, ‘‘Contract requirements,’’                 Food Security Act of 1985 (1985 Act) to
                                             process of developing methods to                         § 1470.22 ‘‘Conservation stewardship                  establish the Conservation Stewardship
                                             quantify the contribution of those                       plan,’’ and § 1470.23, ‘‘Conservation                 Program (CSP) and authorize the
                                             outputs to environmental outcomes                        activity operation and maintenance.’’                 program in fiscal years 2009 through
                                                NRCS currently uses a mix of                          These requirements and related program                2012. The purpose of CSP is to
                                             approaches to evaluate whether long-                     management procedures supporting                      encourage producers to address resource
                                             term conservation benefits are being                     program implementation are set forth in               concerns in a comprehensive manner
                                             achieved through its programs. Since                     Agency guidance (Conservation                         by: (1) Undertaking additional
                                             1982, NRCS has reported on certain                       Programs Manual 440_Part 512 and                      conservation activities; and (2)
                                             natural resource status and trends                       Conservation Programs Manual                          improving, maintaining, and managing
                                             through the National Resources                           _440_Part 508).                                       existing conservation activities. The
                                             Inventory (NRI), which provides                             Coordinate these actions with the                  Secretary of the United States
                                             statistically reliable, nationally                       national conservation program                         Department of Agriculture (USDA) has
                                             consistent land cover/use and related                    authorized under the Soil and Water                   delegated authority to the Natural
                                             natural resource data. However, lacking                  Resources Conservation Act (RCA). The                 Resources Conservation Service (NRCS)
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                                             has been a connection between these                                                                            to administer CSP.
                                             data and specific conservation                             4 Soil and Water Conservation Society. 2006.           Through CSP, NRCS will provide
                                             programs.3 In the future, the interagency
                                                                                                      Final Report from the Blue Ribbon Panel               financial and technical assistance to
                                                                                                      Conducting an External Review of the US               eligible producers to conserve and
                                                                                                      Department of Agriculture Conservation Effects
                                               3 The exception to this is the Conservation            Assessment Project. Ankeny, IA: Soil and Water
                                                                                                                                                            enhance soil, water, air, and related
                                             Reserve Program; since 1987 the NRI has reported         Conservation Society. This review is available at     natural resources on their land. Eligible
                                             acreage enrolled in CRP.                                 (http://www.nrcs.usda.gov/technical/NRI/ceap/).       lands include cropland, grassland,


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                                             prairie land, improved pastureland,                      contract that is operated substantially               ways to address program acreage and
                                             rangeland, nonindustrial private forest                  separate from other operations.                       payment constraints, refine their
                                             lands, agricultural land under the                          The 2008 Act directed the                          payment approach, and make annual
                                             jurisdiction of an Indian tribe, and other               development of the conservation                       payments more consistent and
                                             private agricultural land (including                     measurement tool (CMT) to estimate the                predictable.
                                             cropped woodland, marshes, and                           level of environmental benefit to be                     Additionally NRCS seeks public
                                             agricultural land used for the                           achieved by a producer in implementing                comment on the proper distribution of
                                             production of livestock) on which                        conservation activities. The term                     CSP annual payment between payment
                                             resource concerns related to agricultural                ‘‘environmental benefit’’ used in the                 for additional activities and payment for
                                             production could be addressed.                           context of the CMT is misleading. The                 existing activities.
                                             Participation in the program is                          CMT considers the relative physical                      Section 1470.26 of this interim final
                                             voluntary.                                               effects of existing and proposed                      rule provides that NRCS will permit
                                                CSP encourages land stewards to                       conservation activities to estimate                   contract renewals to foster participant
                                             improve their conservation performance                   improvements in conservation                          commitment to increased conservation
                                             by installing and adopting additional                    performance. It does not measure true                 performance. NRCS seeks public
                                             activities, and improving, maintaining,                  environmental benefits, e.g., tons of                 comment on the contract renewal
                                             and managing existing activities on                      carbon sequestered, or tons of soil                   criteria in the interim final rule.
                                             agricultural land and nonindustrial                      saved.                                                   NRCS can broaden CSP’s impact by
                                             private forest land. NRCS will make                         The CMT combines functions of                      offering participants the opportunity to
                                             funding for CSP available nationwide on                  existing NRCS tools for soil and water,               install innovative conservation activities
                                             a continuous application basis.                          grazing lands, and wildlife habitat;                  that appeal to all levels of land
                                                                                                      considers the physical effects of                     stewards, and increase conservation
                                                The State Conservationist, in
                                                                                                      conservation activities, such as                      performance across all land uses,
                                             consultation with the State Technical
                                                                                                      establishing permanent vegetative cover,              operation sizes and types, and
                                             Committee and local work groups, will
                                                                                                      across natural resource concerns and                  production systems, including specialty
                                             focus program impacts on natural
                                                                                                      energy; and integrates and supports the               crops and organic production. NRCS
                                             resources that are of specific concern for
                                                                                                      processes of inventorying resources,                  specifically requests through the
                                             a State, or the specific geographic areas
                                                                                                      determining eligibility, and ranking                  comment process information on
                                             within a State. Applications will be
                                                                                                      applications.                                         innovative enhancements NRCS should
                                             evaluated relative to other applications                    NRCS will assist applicants with
                                             addressing similar priority resource                                                                           offer under CSP to improve participant’s
                                                                                                      completing the inventory of resource                  conservation performance.
                                             concerns to facilitate a competitive                     conditions in the CMT. The inventory
                                             ranking process among applicants who                                                                              A step-by-step explanation of how
                                                                                                      will enable the CMT to calculate a                    CSP works from sign-up to fulfillment of
                                             face similar resource challenges.                        conservation performance score that                   the conservation stewardship contract is
                                                The 2008 Act requires NRCS to                         will assist in ranking applications                   as follows:
                                             manage CSP to achieve a national                         within State-identified geographic area                  (1) CSP is available nationwide and
                                             average rate of $18 per acre, which                      ranking pools. For approved applicants,               sign-up will be continuous with
                                             includes the costs of all financial and                  NRCS will request records of the                      announced ranking period cutoff dates.
                                             technical assistance, and any other                      applicants’ conservation activity and                    (2) A producer self-screening
                                             expenses associated with program                         production system information and                     checklist will be available at local NRCS
                                             enrollment and participation. NRCS will                  conduct on-site field verification to                 field offices and on the NRCS Web site.
                                             use a producer self-screening checklist                  substantiate, prior to contract approval,             Producers will complete the checklist
                                             to help potential applicants decide for                  that the resource inventory information               independently to help them decide if
                                             themselves whether CSP is the right                      provided for the CMT was accurate.                    they meet CSP eligibility requirements.
                                             program for them and their operation.                       CSP provides participants with two                    (3) Potential applicants who decide to
                                             The process focuses on basic                             possible types of payments:                           apply for CSP complete a Contract
                                             information about CSP eligibility                           (1) Annual payment for installing and              Program Application Form, NRCS–
                                             requirements and contract obligations.                   adopting additional activities, and                   CPA–1200, and submit information on
                                                When examining applicant eligibility,                 improving, maintaining, and managing                  their operation. The extent of an
                                             CSP bases determinations on how                          existing activities. Compensation for on-             applicant’s agricultural operation will
                                             applicants delineate their operation for                 farm research and demonstration                       be based on how the applicant
                                             other USDA programs. Specifically, any                   activities, or pilot testing will be made             represents their operation for other
                                             potential participant must be the                        through the annual payment.                           USDA programs.
                                             operator in the Farm Service Agency                         (2) Supplemental payment for the                      (4) Once applicant and land eligibility
                                             (FSA) farm records management system.                    adoption of resource-conserving crop                  are determined, the NRCS field office
                                             This requirement is needed because the                   rotations.                                            will assist the producer with completing
                                             FSA record system provides applicant                        Setting the annual payment rates will              the CMT resource inventory.
                                             eligibility information for Adjusted                     be a significant challenge for NRCS. In                  (5) CMT will estimate the level of
                                             Gross Income and highly erodible land                    addition to managing the program                      environmental benefit to be achieved by
                                             and wetland conservation provisions.                     within the national average rate of $18               the applicant. The CMT conservation
                                             Potential applicants who are not in the                  per acre, the 2008 Act also provides an               performance scoring will enable NRCS
                                             FSA farm records management system,                      acreage enrollment limit of 12,769,000                to determine if the stewardship
                                             or whose records are not current, must                   acres for each fiscal year. To address
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                                                                                                                                                            threshold requirement is met, rank
                                             establish or update their records prior to               these constraints, NRCS intends to use                applications, and establish payments.
                                             making a CSP application. The 2008 Act                   the first ranking period as a payment                    (6) Applicants will be ranked relative
                                             also requires that the agricultural                      discovery period to arrive at a uniform               to other applicants who face similar
                                             operation must include all agricultural                  payment rate per conservation                         resource challenges in State-established
                                             land under the effective control of the                  performance point by eligible land use                ranking pools using conservation
                                             applicant for the term of the proposed                   type. NRCS requests public comment on                 performance ranking scores.


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                                             37506             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                (7) For approved applicants, NRCS                     Commonwealth of the Northern Mariana                     A number of these definitions are
                                             will conduct on-site field verification to               Islands.                                              shared with other conservation
                                             substantiate that conservation activity                     Paragraph (d) identifies that NRCS                 programs administered by NRCS. The
                                             and production system information                        will provide CSP participants financial               following definitions are unique or have
                                             represented by the applicant was                         and technical assistance for the                      special relevance to CSP
                                             accurate.                                                conservation, protection, and                         implementation, or have been modified
                                                (8) After the conservation system                     improvement of soil, water, and other                 from how the term is defined in other
                                             information is verified, NRCS and the                    related natural resources.                            NRCS conservation program rules:
                                             applicant proceed to develop the                                                                                  The definition of ‘‘agricultural land’’
                                             conservation stewardship plan and                        Section 1470.2        Administration                  describes those areas identified by CSP’s
                                             contract.                                                   Section 1470.2, ‘‘Administration,’’                authorizing legislation—working
                                                (9) Upon approval, the contract will                  describes the roles of NRCS at the                    agricultural land being actively
                                             obligate the participant to achieve a                    National and State levels. NRCS will                  managed for agricultural production
                                             higher level of conservation                             make CSP available nationwide on a                    purposes upon which CSP will be
                                             performance by installing additional                     continuous application basis. NRCS will               focused, including cropland, grassland,
                                             activities scheduled in their                            operate the program to achieve a                      improved prairieland, and land used for
                                             conservation stewardship plan and to                     national average rate of $18 per acre,                agro-forestry. NRCS does not intend to
                                             maintain the level of existing                           which includes the costs of all financial             exclude working lands such as cropped
                                             conservation performance identified at                   and technical assistance, and any other               woodlands and marshes, but will
                                             the time of application. For the initial                 expenses associated with program                      consider those as cropland.
                                             sign-up, NRCS will consider a                                                                                     NRCS includes the definition of
                                                                                                      enrollment and participation. As
                                             participant ‘‘enrolled’’ based on the                                                                          ‘‘agricultural operation’’ to specify an
                                                                                                      directed by the 2008 Act, NRCS will
                                             fiscal year the application is submitted,                                                                      agricultural operation’s parameters. An
                                                                                                      establish a national target to set aside
                                             once NRCS approves an applicant’s                                                                              ‘‘agricultural operation’’ is defined as
                                                                                                      five percent of CSP acres for socially                ‘‘all agricultural land and other land as
                                             contract. For subsequent ranking cut-off                 disadvantaged farmers or ranchers and
                                             periods, NRCS will consider a                                                                                  determined by NRCS, whether
                                                                                                      an additional five percent of CSP acres               contiguous or noncontiguous: (1) Which
                                             participant enrolled in CSP based on the                 for beginning farmers or ranchers. State
                                             fiscal year the contract is approved.                                                                          is under the effective control of the
                                                                                                      conservationists will obtain advice from              applicant for the term of the proposed
                                                (10) NRCS will make payments as                       State Technical Committees and local
                                             soon as practical after October 1 of each                                                                      contract; and (2) which is operated by
                                                                                                      working groups on State program                       the applicant with equipment, labor,
                                             fiscal year for activities carried out in                technical policies, outreach efforts, and
                                             the previous fiscal year. A participant’s                                                                      management, and production or
                                                                                                      program issues.                                       cultivation practices that are
                                             annual payment is determined using the
                                             conservation performance estimated by                    Section 1470.3        Definitions                     substantially separate from other
                                             the CMT, and computed by land-use                                                                              operations.’’ The term ‘‘other land’’ in
                                                                                                         Section 1470.3, ‘‘Definitions,’’ sets              this definition includes ineligible land
                                             type for enrolled eligible land. A                       forth definitions for terms used
                                             supplemental payment is also available                                                                         identified in § 1470.6, incidental areas
                                                                                                      throughout this regulation. These                     that are not in agricultural production,
                                             to a participant receiving annual                        definitions include: ‘‘agricultural land,’’           and developed areas on the farm or
                                             payments who also agrees to adopt a                      ‘‘animal waste storage or treatment                   ranch such as farm headquarters, ranch
                                             resource-conserving crop rotation.                       facility,’’ ‘‘applicant,’’ ‘‘beginning                sites, barnyards, feedlots, manure
                                             Summary of Provisions                                    farmer or rancher,’’ ‘‘Chief,’’                       storage facilities, machinery storage
                                                                                                      ‘‘conservation district,’’ ‘‘conservation             areas, and material handling facilities.
                                               The regulation is organized into three                 practice,’’ ‘‘Designated Conservationist,’’              The term ‘‘applicant’’ is defined as ‘‘a
                                             subparts: Subpart A—General                              ‘‘enrollment,’’ ‘‘field office technical              person, legal entity, joint operation, or
                                             Provisions; Subpart B—Contracts; and                     guide,’’ ‘‘Indian tribe,’’ ‘‘Indian lands,’’          Indian tribe that has an interest in an
                                             Subpart C—General Administration.                        ‘‘joint operation,’’ ‘‘legal entity,’’                agricultural operation, as defined in 7
                                             Below is a summary of each section.                      ‘‘liquidated damages,’’ ‘‘local working               CFR part 1400, who has requested in
                                             Subpart A—General Provisions                             group,’’ ‘‘National Organic Program,’’                writing to participate in CSP.’’ All
                                                                                                      ‘‘Natural Resources Conservation                      applicants must establish records in the
                                             Section 1470.1       Applicability                       Service,’’ ‘‘nonindustrial private forest             Farm Service Agency (FSA) farm
                                               Section 1470.1, ‘‘Applicability,’’ sets                land,’’ ‘‘operation and maintenance,’’                records management system prior to
                                             forth the purpose, procedures, and                       ‘‘participant,’’ ‘‘person,’’ ‘‘producer,’’            submitting an application.
                                             requirements of CSP. In paragraph (b),                   ‘‘Secretary,’’ ‘‘socially disadvantaged                  The term, ‘‘beginning farmer and
                                             NRCS defines that the program’s                          farmer or rancher,’’ ‘‘State                          rancher,’’ is the same as the definition
                                             purpose is to encourage producers to                     Conservationist,’’ ‘‘State Technical                  used by other NRCS conservation
                                             address resource concerns in a                           Committee,’’ ‘‘technical assistance,’’ and            programs, which adopt the definition
                                             comprehensive manner by undertaking                      ‘‘Technical Service Provider (TSP).’’                 established by 7 U.S.C. 1991(a), except
                                             additional conservation activities; and                  Other definitions, such as: ‘‘agricultural            that the definition incorporates the term
                                             improving, maintaining, and managing                     operation,’’ ‘‘conservation activities,’’             nonindustrial private forest land to
                                             existing conservation activities.                        ‘‘conservation measurement tool,’’                    ensure policies pertaining to beginning
                                               NRCS included paragraph (c) to                         ‘‘conservation stewardship plan,’’                    farmers and ranchers include those
                                             specify where CSP assistance is                          ‘‘contract,’’ ‘‘enhancement,’’
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                                                                                                                                                            producers having nonindustrial private
                                             available. CSP is available to eligible                  ‘‘management measure,’’ ‘‘payment,’’                  forest land.
                                             persons, legal entities, or Indian tribes                ‘‘priority resource concern,’’ ‘‘resource                A definition for ‘‘conservation
                                             in all 50 States, the District of Columbia,              concern,’’ ‘‘resource-conserving crop                 activity’’ is included to describe in a
                                             the Commonwealth of Puerto Rico,                         rotation,’’ and ‘‘stewardship threshold’’             more comprehensive fashion the
                                             Guam, the Virgin Islands of the United                   are definitions established to implement              conservation systems, practices, or
                                             States, American Samoa, and the                          CSP’s authorizing legislation.                        management measures needed to


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                                             address a resource concern or improve                    is held by an individual Indian, Indian               chapter, or is engaged in agricultural
                                             conservation performance.                                family, or Indian Tribe.                              production or forest management.
                                                A definition for ‘‘conservation                          The term, ‘‘management measure,’’ is                  The term ‘‘resource concern,’’ reflects
                                             measurement tool’’ refers to the                         defined as one or more specific actions               the 2008 Act’s ‘‘resource concern’’
                                             procedures that NRCS will use to                         that is not a conservation practice, but              definition. A resource concern ‘‘means a
                                             estimate the level of environmental                      has the effect of alleviating problems or             specific natural resource problem that is
                                             benefit to be achieved by a producer                     the treatment of natural resources.                   likely to be addressed successfully
                                             using the proxy of conservation                             The term ‘‘National Organic Program’’              through the implementation of
                                             performance improvement.                                 has been inserted to refer to a program               conservation activities by producers.’’
                                                The term ‘‘conservation stewardship                   administered by the Agricultural                         The term, ‘‘resource-conserving crop
                                             plan’’ is defined as a record of the                     Marketing Service. The rule contains                  rotation’’ means a crop rotation that
                                             participant’s decisions that describes                   provisions related to conservation                    includes at least one resource-
                                             the schedule of conservation activities                  activities associated with organic                    conserving crop that reduces soil
                                             to be implemented, managed, or                           production. The National Organic                      erosion, improves soil fertility and tilth,
                                             improved by the participant. The                         Program is a national program which                   interrupts pest cycles, retains soil
                                             definition clarifies that associated                     regulates the standards for any farm,                 moisture, and reduces the need for
                                             supporting information inventories the                   wild crop harvesting, or handling                     irrigation in applicable areas.
                                             agricultural operation’s resource                        operation that wants to sell an                          NRCS includes the term ‘‘socially
                                             concerns and existing conservation                                                                             disadvantaged farmer or rancher’’ that
                                                                                                      agricultural product as organically
                                             activities, establishes benchmark data,                                                                        is based on the definition used by other
                                                                                                      grown.
                                             and identifies the participant’s                                                                               NRCS conservation programs.
                                                                                                         The term, ‘‘nonindustrial private                     The term ‘‘stewardship threshold’’
                                             conservation objectives and will be                      forest land’’ is based on the definition
                                             maintained with the plan.                                                                                      means the level of natural resource
                                                                                                      in the 2008 Act. Nonindustrial private                conservation and environmental
                                                The term ‘‘enhancement’’ means a
                                                                                                      forest land is rural land that has existing           management required, as determined by
                                             type of activity installed and adopted to
                                                                                                      tree cover or is suitable for growing                 NRCS using conservation measurement
                                             treat natural resources and improve
                                                                                                      trees; and is owned by an individual,                 tools, to conserve and improve the
                                             conservation performance.
                                             Enhancements are installed at a level of                 group, association, corporation, Indian               quality and condition of a natural
                                             management intensity that exceeds the                    Tribe, or other private legal entity that             resource. The stewardship threshold is
                                             sustainable level for a given resource                   has definitive decision-making authority              used to determine if an applicant meets
                                             concern, and those directly related to a                 over the land.                                        the minimum treatment requirements to
                                             practice standard are applied in a                          NRCS includes the definition of                    be eligible for CSP. NRCS guided its
                                             manner that exceeds the minimum                          ‘‘operation and maintenance’’ to                      efforts to set stewardship thresholds by
                                             treatment requirements of the standard.                  identify that participants are expected to            sustainable levels of natural resource
                                             An example of an enhancement                             maintain existing conservation activities             treatment. For example, for the soil
                                             includes a grass-type cover crop used to                 and additional conservation activities                erosion resource concern, this criterion
                                             scavenge nitrogen left in the soil after                 installed and adopted over the contract               is met when the erosion rate from wind
                                             the harvest of a previous crop.                          period.                                               and water does not exceed the Soil Loss
                                                The term ‘‘enrollment’’ means for the                    The definition of ‘‘participant’’                  Tolerance (T).
                                             initial sign-up for FY 2009, NRCS will                   reflects the 2008 Act’s definition of                    NRCS includes the definition,
                                             consider a participant ‘‘enrolled’’ in CSP               ‘‘person’’ and ‘‘legal entity’’ and the               ‘‘technical service provider (TSP),’’ to
                                             based on the fiscal year the application                 definition used by other NRCS                         clarify that TSPs are used to provide
                                             is submitted, once NRCS approves the                     conservation programs. A participant is               technical services to program
                                             participant’s contract. For subsequent                   a ‘‘person, legal entity, joint operation,            participants, in lieu of or on behalf of
                                             ranking cut-off periods, NRCS will                       or Indian Tribe that is receiving                     NRCS. A TSP is ‘‘an individual, private-
                                             consider a participant enrolled in CSP                   payment or is responsible for                         sector entity, or public agency certified
                                             based on the fiscal year the contract is                 implementing the terms and conditions                 by NRCS to provide technical services
                                             approved. The acres enrolled for each                    of a CSP contract.’’                                  to program participants, in lieu of or on
                                             fiscal year count against each year’s                       NRCS defines the term ‘‘payment’’ to               behalf of NRCS.’’ The regulations
                                             annual 12.8 million acre enrollment                      mean the financial assistance provided                governing TSPs are found in 7 CFR part
                                             limit.                                                   under the terms of the CSP contract.                  652.
                                                The terms, ‘‘Indian Tribe’’ and                          NRCS includes the term, ‘‘person’’ to
                                             ‘‘Indian lands’’ reflect the terms used by               reflect the requirements of 7 CFR part                Section 1470.4 Allocation and
                                             other NRCS conservation programs. An                     1400, the regulation which details CCC’s              Management
                                             Indian Tribe is any ‘‘Indian Tribe, band,                payment limitation policies.                             Section 1470.4, ‘‘Allocation and
                                             nation, pueblo, or other organized group                    NRCS includes the term ‘‘priority                  management,’’ addresses national
                                             or community, including any Alaska                       resource concern,’’ which reflects the                allocations and how the proportion of
                                             Native village or regional corporation as                definition in the 2008 Act. A priority                eligible land will be used as the primary
                                             defined in or established pursuant to the                resource concern is a resource concern                means to distribute CSP acres and
                                             Alaska Native Claims Settlement Act (43                  that is identified by the State                       associated funds among States. The
                                             U.S.C. 1601 et seq.), which is recognized                Conservationist, in consultation with                 Chief will also consider the extent and
                                             as eligible for the special programs and                 the State Technical Committee and local               magnitude of conservation needs
                                             services provided by the United States                   work groups, as a priority for a State, or            associated with agricultural production
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                                             to Indians because of their status as                    the specific geographic areas within a                in each State, the degree to which CSP
                                             Indians.’’ NRCS adopts terminology                       State.                                                can help producers address these needs;
                                             ‘‘Indian lands’’ in an effort to be more                    The term ‘‘producer’’ means a person               and other considerations determined by
                                             inclusive of all lands held in trust by the              or legal entity or joint operation who                the Chief to achieve equitable
                                             United States for individual Indians or                  has an interest in the agricultural                   geographic distribution of program
                                             Indian Tribes, all land, the title to which              operation, according to part 1400 of this             participation. NRCS is in the process of


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                                             developing State allocations according                   want to offer the nonindustrial private               coordinate and simultaneously meet
                                             to the provisions in this section. After                 forest land for funding consideration.                eligibility standards under each
                                             allocations are finalized NRCS will                         Land enrolled in the Conservation                  program.
                                             make information related to the                          Reserve Program (7 CFR part 1410),
                                                                                                      Wetlands Reserve Program (7 CFR part                  Subpart B—Contracts and Payments
                                             allocation decisions available to the
                                             public. NRCS also seeks public                           1467), Grasslands Reserve Program (7                  Section 1470.20 Application for
                                             comment on the use of these factors to                   CFR part 1415), and Conservation                      Contracts and Selecting Offers From
                                             distribute allocations among States.                     Security Program (7 CFR part 1469) are                Applicants
                                                                                                      ineligible for CSP. The 2008 Act limits
                                             Section 1470.5       Outreach Activities                                                                          Section 1470.20, ‘‘Application for
                                                                                                      eligibility to ‘‘private’’ agricultural land;
                                                                                                                                                            contracts and selecting offers from
                                                Section 1470.5, ‘‘Outreach activities,’’              as such, land that is owned by a Federal,
                                                                                                                                                            applicants,’’ identifies procedures
                                             describes how NRCS will establish                        State, or local unit of government, with
                                                                                                                                                            associated with application acceptance,
                                             special program outreach activities at                   the exception of agricultural land under
                                                                                                                                                            contract application requirements, and
                                             the National, State, and local levels.                   the jurisdiction of an Indian Tribe, is
                                                                                                      ineligible, regardless of the status of the           the application evaluation process.
                                             NRCS will undertake special outreach                                                                           Paragraph (a) clarifies that CSP
                                             effort to the historically underserved                   operator. Additionally, a participant
                                                                                                      may not receive payment for land used                 applications will be accepted
                                             producers which includes socially                                                                              throughout the year, while paragraph (c)
                                             disadvantaged, beginning and limited                     for crop production after June 18, 2008,
                                                                                                      that had not been planted, considered to              identifies that the State Conservationist
                                             resource farmers or ranchers. In                                                                               or Designated Conservationist will rank
                                             addition, NRCS will continue to ensure                   be planted, or devoted to crop
                                                                                                      production for at least four of the six               applications at selected times of the
                                             that producers are not disadvantaged                                                                           year, as described more fully below.
                                             based on the size or type of their                       years preceding that date, unless the
                                                                                                      land was: previously enrolled in the                     Paragraph (b) defines contract
                                             operation or production system. Special                                                                        application requirements. To be
                                             outreach efforts will be made to small-                  Conservation Reserve Program;
                                                                                                      maintained using long-term rotations,                 considered for funding, a contract
                                             scale farms, specialty crop operations,                                                                        application must meet the stewardship
                                             and organic farms.                                       such as hayland in rotation; or
                                                                                                      incidental to the operation but needed                threshold for at least one resource
                                             Section 1470.6       Eligibility                         for the efficient management of the                   concern and would, at a minimum,
                                             Requirements                                             operation. An example of land                         achieve or exceed the stewardship
                                                                                                      considered ‘‘incidental to the operation’’            threshold for at least one priority
                                                Section 1470.6, ‘‘Eligibility                                                                               resource concern by the end of the
                                             requirements,’’ sets forth the criteria for              that may be eligible for payment is land
                                                                                                      that had once been used for buildings                 contract. The conservation measurement
                                             determining applicant and land                                                                                 tool (CMT) is used to determine if the
                                             eligibility.                                             and is now being used for crop
                                                                                                      production to square up a cropland                    stewardship threshold has been met for
                                                Paragraph (a) details applicant                                                                             one or more resource concerns. NRCS
                                             eligibility criteria. To be eligible, at the             field.
                                                                                                                                                            seeks public comment on whether
                                             time of application, an applicant must:                  Section 1470.7 Enhancements and                       meeting the stewardship threshold on
                                             Be the operator in the FSA farm records                  Conservation Practices                                one resource concern and one priority
                                             management system for the agricultural                     Section 1470.7, ‘‘Enhancements and                  resource concern is adequate, or if that
                                             operation; have documented control of                    conservation practices,’’ identifies that a           number should be greater than one. The
                                             the land for the term of the proposed                    participant’s decisions describing the                contract application must also include a
                                             contract; and be in compliance with                      additional enhancements and                           map, aerial photograph, or overlay that
                                             highly erodible land and wetland                         conservation practices to be                          identifies the applicant’s agricultural
                                             conservation provisions, and the                         implemented under the CSP contract                    operation and delineates the eligible
                                             Adjusted Gross Income provisions. It is                  will be recorded in the conservation                  land offered for payment and associated
                                             the applicant’s responsibility to supply                 stewardship plan. NRCS will make                      acreage amounts.
                                             needed information to assist NRCS in                     public the enhancements and                              The 2008 Act was prescriptive about
                                             determining program eligibility and in                   conservation practices that may be                    application ranking factors and
                                             ranking the application. NRCS may                        installed, adopted, maintained, and                   paragraph (c) identifies how contract
                                             request from the applicant: conservation                 managed through CSP.                                  applications will be evaluated. NRCS
                                             and production system records, tax                                                                             will conduct one or more ranking
                                             documentation, evidence documenting                      Section 1470.8 Technical Assistance                   periods per year. It is intended that, to
                                             control of the land, and information to                    Section 1470.8, ‘‘Technical                         the extent practicable, at least one
                                             verify an applicant’s status as a                        assistance,’’ explains that NRCS or other             ranking period will occur in the first
                                             beginning farmer or rancher or socially                  technical service providers (TSP) not                 quarter of the fiscal year.
                                             disadvantaged farmer or rancher, if                      directly affiliated with NRCS could                      In evaluating CSP applications, the
                                             applicable.                                              provide the technical consultation for                State Conservationist or Designated
                                                Paragraphs (b) and (c) set forth land                 installing conservation activities under              Conservationist will use the CMT to
                                             eligibility criteria. Under CSP, a                       CSP. NRCS will ensure that technical                  estimate existing and proposed
                                             participant must enroll their entire                     assistance is available and program                   conservation performance and rank
                                             agricultural operation. Eligible land for                specifications are appropriate so as not              accordingly. Applications will be
                                             CSP includes private agricultural land,                  to limit producer participation because               ranked based on: The level of
                                             and agricultural Indian lands.                           of size or type of operation, or                      conservation treatment proposed on all
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                                                Nonindustrial private forest land is                  production system, including specialty                priority resource concerns; the degree to
                                             also eligible by special rule, but no more               crop and organic production. NRCS will                which the proposed conservation
                                             than 10 percent of the annual acres                      assist potential applicants dealing with              treatment on all applicable priority
                                             enrolled may be nonindustrial private                    the requirements of certification under               resource concerns effectively increases
                                             forest land. An applicant designates by                  the National Organic Program and CSP                  conservation performance based to the
                                             submitting a separate application if they                requirements concerning how to                        maximum extent practicable on the


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                                             CMT; the number of applicable priority                   pools for conservation access for                     plan map; and other information
                                             resource concerns proposed to be                         socially disadvantaged farmers or                     determined appropriate by NRCS.
                                             treated to meet or exceed the                            ranchers and beginning farmers or                     Where a participant wishes to pursue
                                             stewardship threshold level by the end                   ranchers. Paragraph (f) also specifies                organic certification, their conservation
                                             of the contract; the extent to which                     that in any fiscal year, acres allocated to           stewardship plan information will
                                             other resource concerns in addition to                   a funding pool that are not enrolled by               document the participant’s transition to
                                             priority resource concerns may will be                   a date determined by the State                        or participation in the National Organic
                                             addressed to meet or exceed the                          Conservationist may be reallocated,                   Program. If a participant is approved for
                                             stewardship threshold by the end of the                  with associated funds, for use in that                the on-farm research and demonstration
                                             contract period; and the extent to which                 fiscal year under CSP.                                or pilot testing option, a research,
                                             the actual and anticipated                                  Paragraph (g) specifies that the State             demonstration or pilot testing job sheet
                                             environmental benefits from the                          Conservationist or Designated                         consistent with design protocols and
                                             contract are provided at the least cost                  Conservationist will make application                 application procedures established by
                                             relative to other similarly beneficial                   approval determinations during                        NRCS will be included in the associated
                                             contract offers. NRCS requests public                    established ranking periods based on                  information.
                                             comment on the appropriate weighting                     eligibility and ranking score.
                                                                                                                                                            Section 1470.23 Conservation System
                                             of these five ranking factors that will                  Section 1470.21 Contract                              Operation and Maintenance
                                             maximize environmental benefits while                    Requirements
                                             maintaining consistency with the                                                                                 Section 1470.23, ‘‘Conservation
                                             statutory purposes of the program.                          Section 1470.21, ‘‘Contract                        system operation and maintenance,’’
                                             NRCS will consider these public                          requirements,’’ identifies elements                   addresses the participant’s
                                             comments when revising the weighting                     contained within a contract and the                   responsibility for operating and
                                             of these ranking factors when the CSP                    responsibilities of a CSP contract                    maintaining existing conservation
                                             rule is finalized.                                       participant. A participant must enter                 activities on the agricultural operation
                                                Paragraph (d) provides the Chief may                  into a CSP contract, including a                      to at least the level of conservation
                                             develop additional criteria for                          conservation stewardship plan, to enroll              performance identified at the time of
                                             evaluating applications to ensure                        their eligible land and to receive                    application for the conservation
                                             National, State, and local conservation                  payment. The CSP contract will:                       stewardship contract period. Additional
                                             priorities are addressed. Additional                     Provide for payments over a period of                 activities installed and adopted over the
                                             criteria have not been developed but                     five years; incorporate by reference the              term of the conservation stewardship
                                             may be considered in the future.                         conservation stewardship plan; state the              contract also need to be maintained.
                                                Paragraph (e) specifies that the State                payment to be issued by NRCS; and
                                                                                                      incorporate all provisions as required by             Section 1470.24 Payments
                                             Conservationist, with advice from the
                                             State Technical Committee and local                      law or statute. In order to receive                      Section 1470.24, ‘‘Payments,’’
                                             work groups, will identify not less than                 payment and be in compliance with the                 describes the types of payments issued
                                             three nor more than five priority                        CSP contract, the participant will agree              under CSP, how payments will be
                                             resource concerns for a State, or the                    to implement the conservation                         derived, and payment limitations. NRCS
                                             specific geographic areas within a State.                stewardship plan, operate and maintain                will provide annual payments for
                                             Examples of priority resource concerns                   the conservation activities, maintain                 installing and adopting additional
                                             include: soil quality, soil erosion, water               and make available appropriate records                conservation activities, and improving,
                                             quality, water quantity, air, plants,                    documenting applied conservation                      maintaining, and managing existing
                                             animals, and energy. Public comment is                   activities and production system                      activities. A participant’s annual
                                             requested on whether or not at least one                 information, not engage in any action on              payment will be determined based on
                                             of the priority resource concerns should                 the enrolled land that would interfere                expected environmental benefits,
                                             be identified specifically to address                    with the purposes of the conservation                 determined by estimating conservation
                                             wildlife habitat issues.                                 stewardship contract, and comply with                 performance improvement using the
                                                Paragraph (f) has been added to                       terms and documents incorporated by                   CMT, and computed by land-use type
                                             describe how State or geographic area                    reference in the contract.                            for enrolled eligible land.
                                             boundaries, used by State                                                                                         If operational adjustments are needed
                                             Conservationists to identify priority                    Section 1470.22 Conservation                          during the contract, the participant may
                                             resource concerns, will also be used to                  Stewardship Plan                                      replace enhancements with similar
                                             establish ranking pool boundaries so                        Section 1470.22, ‘‘Conservation                    enhancements, provided the resulting
                                             that applicants will be ranked relative to               stewardship plan,’’ describes that NRCS               conservation performance improvement
                                             other applicants who share similar                       will use the conservation planning                    is equal to or better than the
                                             resource challenges. For example, a                      process to encourage producers to                     participant’s additional enhancements
                                             State with diverse natural resource                      address resource concerns in a                        agreed upon at enrollment. A
                                             conditions and environmental factors                     comprehensive manner. The                             replacement that results in a decline
                                             may have multiple geographic areas                       conservation stewardship plan contains                below the original conservation
                                             established based on the distinct sets of                a record of the participant’s decisions               performance level will not be allowed.
                                             priority resource concerns identified                    on the schedule of conservation                       A participant may be compensated
                                             within each of these areas. The                          activities to be implemented, managed,                through their annual payment for on-
                                             boundaries of these geographic areas                     and improved under CSP.                               farm research and demonstration
                                             will serve as the boundaries of ranking                     Associated information maintained
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                                                                                                                                                            activities, or pilot testing of new
                                             pools, within which applicants’                          with the participant’s conservation                   technologies or innovative conservation
                                             operations would compete for funding                     stewardship plan includes: An                         activities.
                                             approval. Nonindustrial forest land will                 inventory of resource concerns;                          In establishing annual payment rates,
                                             compete in separate ranking pools from                   benchmark data on the condition of the                NRCS will consider: estimated costs
                                             agricultural land. Paragraph (f)(3)                      existing conservation activities; the                 incurred by the participant associated
                                             enables State Conservationists to set up                 participant’s conservation objectives; a              with planning, design, materials,


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                                             installation, labor, management,                         a joint operation with five members who                 • Meet stewardship thresholds for
                                             maintenance, and training; estimated                     each reach their $200,000 per person or               additional priority resource concerns;
                                             income foregone by the participant; and                  legal entity limit could have contract                and
                                             expected conservation performance                        payments of $1 million. To prevent                      • Agree to adopt conservation
                                             increase as determined using the CMT.                    large contracts of this nature, the rule              activities.
                                             Consideration of these factors in CSP                    includes a contract limit of $200,000                 Section 1470.27 Contract Violations
                                             payment levels is intended to make                       over the term of the initial contract                 and Termination
                                             them compliant with World Trade                          period.
                                             Organization green box requirements,                        With regard to the payment limitation                 Section 1470.27, ‘‘Contract violations
                                             which in brief call for payments to be                   as it applies to contracts with Indians               and termination,’’ addresses the
                                             based on producer cost incurred and                      represented by the Bureau of Indian                   procedures that NRCS will take when a
                                             income foregone.                                         Affairs (BIA) or an Indian Tribe,                     violation has occurred or a contract
                                                A participant may receive                             payments exceeding the payment                        termination is needed. Specifically,
                                             supplemental payments when he or she                                                                           paragraph (a) provides that the State
                                                                                                      limitation may be made to the Tribal
                                             adopts a resource-conserving crop                                                                              Conservationist, individually or by
                                                                                                      participant if the BIA or Tribal official
                                             rotation. To be eligible for a                                                                                 mutual consent, may terminate a
                                                                                                      certifies in writing that no one
                                             supplemental payment, the participant                                                                          contract when it is in the public interest
                                                                                                      individual will receive more than the
                                             must agree to adopt and maintain a                                                                             or where the participants are unable to
                                                                                                      payment limitation. The BIA or Tribe
                                             beneficial resource-conserving crop                                                                            comply with the terms of the contract as
                                                                                                      must also provide, annually, a listing of
                                             rotation for the term of the contract. An                                                                      a result of conditions beyond their
                                                                                                      individuals and payments made, by tax
                                             example of a resource-conserving crop                                                                          control.
                                                                                                      identification number or other unique                    Paragraph (b) states that the State
                                             rotation would be adding alfalfa to a                    identification number, during the
                                             small grain, row crop rotation.                                                                                Conservationist may allow the
                                                                                                      previous year for calculation of overall              participant to retain a portion of any
                                                NRCS will make CSP payments as                        payment limitations. The BIA or Indian
                                             soon as practicable after October 1 for                                                                        payments received in the case of
                                                                                                      Tribe must also produce, at the request               hardship or, as appropriate, to the effort
                                             the previous fiscal year’s activities. This
                                                                                                      of NRCS, proof of payments made to the                the participant has made to comply with
                                             retrospective payment approach will
                                                                                                      person or legal entity that incurred costs            the contract. When a participant claims
                                             allow NRCS to field-verify applied
                                                                                                      or sacrificed income related to                       that the reason for the violation is a
                                             conservation activities prior to contract
                                                                                                      conservation practice implementation.                 form of hardship, the claim must be
                                             obligation and payment.
                                                A CSP payment to a participant shall                  Section 1470.25 Contract                              documented and have occurred after the
                                             not be provided for conservation                         Modifications and Transfers of Land                   participant entered into the contract.
                                             practices or enhancements applied with                                                                            When a participant makes a hardship
                                             financial assistance through other USDA                     Section 1470.25, ‘‘Contract                        claim, the participant will provide
                                             conservation programs, the installation                  modifications and transfers of land,’’                documentation that details the
                                             or maintenance of animal waste storage                   provides that NRCS will not modify a                  hardship, when the hardship began, and
                                             or treatment facilities or associated                    contract to increase the contract                     why the hardship has prevented
                                             waste transport or transfer devices for                  obligation beyond the amount of the                   fulfilling requirements of the contract.
                                             animal feeding operations, or                            initial contract, with exception for                  Examples of hardship include: natural
                                             conservation activities for which there                  contracts approved for renewal. The                   disasters, major illness, bankruptcy, and
                                             is no cost incurred or income forgone by                 section further clarifies the participant’s           matters of public interest (e.g., military
                                             the participant.                                         contract responsibilities as they relate to           service, public utilities’ easement or
                                                The 2008 Act requires that a person                   loss of control of land and the                       condemnation of land, or environmental
                                             or legal entity may not receive, directly                obligations of the transferee. In                     and archeological concerns).
                                             or indirectly, payments that, in the                     particular, paragraph (c) identifies that                Paragraph (c) specifies that if NRCS
                                             aggregate, exceed $200,000 for all                       it is the participant’s responsibility to             determines that a participant is in
                                             contracts entered into during any 5-year                 notify NRCS of any voluntary or                       violation, the participant will be given
                                             period. The regulation includes an                       involuntary land transfer. If all or part             a period of time to correct the violation.
                                             annual payment limit of $40,000 during                   of the land under contract is transferred,            If a participant continues to violate the
                                             any fiscal year to a person or legal                     the contract terminates with respect to               contract, NRCS may terminate the
                                             entity. This annual limit was added to                   the transferred acres unless the                      contract.
                                             reduce the chance that participants of                   transferee is eligible for CSP payments                  NRCS may terminate a contract
                                             large contracts would reach their                        and agrees to accept all contractual                  immediately if, in accordance with
                                             $200,000 five-year limit early in their                  obligations.                                          paragraph (d) of this section, the
                                             contract term and have reduced                           Section 1470.26        Contract Renewal               participant has filed a false claim,
                                             incentive to meet their obligations over                                                                       engaged in a scheme or device, or
                                             the five year life of the contract. NRCS                    From Section 1470.26, ‘‘Contract                   engaged in actions that are sufficiently
                                             will monitor person or legal entity                      renewal,’’ NRCS will allow a participant              purposeful or negligent to warrant a
                                             payment limitations through direct                       to renew the contract for one additional              termination without delay.
                                             attribution to real persons.                             five-year period if they meet specific                   Paragraph (e) specifies that if NRCS
                                                The absence of a contract payment                     criteria. Paragraph (b) contains the                  terminates a contract, the participant
                                             limitation in the 2008 Act caused                        criteria, which include that the                      forfeits all rights to future payments.
                                             concern because of the potential for                     participant must, as determined by                    Paragraph (e) provides notice to the
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                                             excessively large contracts. Since each                  NRCS:                                                 public that NRCS has the ability to
                                             member of a joint operation is treated as                   • Be in compliance with the terms of               collect liquidated damages, along with
                                             a separate person or legal entity with                   their initial contract;                               payments received, plus interest.
                                             payments directly attributed to them,                       • Add any newly-acquired eligible                  Additionally, participants who violate
                                             contracts with a joint operation could be                land that is part of their operation and              CSP contracts may be determined
                                             very large. For example, a contract with                 meets minimum treatment criteria;                     ineligible for future CSP funding or


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                               37511

                                             funding in other programs administered                   Section 1470.35 Offsets and                           ■ For the reasons stated above, the
                                             by NRCS.                                                 Assignments                                           Commodity Credit Corporation adds
                                                                                                        Section 1470.35, ‘‘Offsets and                      Part 1470 of Title 7 of the Code of
                                             Subpart C—General Administration
                                                                                                      assignments,’’ specifies any payment or               Federal Regulations to read as follows:
                                             Section 1470.30 Fair Treatment of                        portion of a payment will be issued
                                             Tenants and Sharecroppers                                                                                      PART 1470—CONSERVATION
                                                                                                      without regard to any claim or lien by
                                                                                                                                                            STEWARDSHIP PROGRAM
                                               Section 1470.30, ‘‘Fair treatment of                   a creditor, except for agencies of the
                                             tenants and sharecroppers,’’ specifies                   United States Government. A                           Subpart A—General Provisions
                                             that any CSP payments received must be                   participant may assign any payment in                 Sec.
                                             divided in the manner specified in the                   accordance with the provisions of 7 CFR               1470.1 Applicability.
                                             contract. Where conflicts arise between                  part 1404.                                            1470.2 Administration.
                                             an operator and landowner, NRCS may                                                                            1470.3 Definitions.
                                                                                                      Section 1470.36 Misrepresentation and
                                             refuse to enter into a CSP contract.                                                                           1470.4 Allocation and management.
                                                                                                      Scheme or Device                                      1470.5 Outreach activities.
                                             Section 1470.31        Appeals                              Section 1470.36, ‘‘Misrepresentation               1470.6 Eligibility requirements.
                                                                                                      and scheme or device,’’ outlines the                  1470.7 Enhancements and conservation
                                                Section 1470.31, ‘‘Appeals,’’ notifies                                                                           practices.
                                             NRCS applicants and participants that                    remedies available to NRCS should
                                                                                                      NRCS determine that an applicant or                   1470.8 Technical and other assistance.
                                             they have the right to appeal in
                                             accordance with the processes and                        participant misrepresented any fact                   Subpart B—Contracts and Payments
                                             procedures outlined in 7 CFR 11 and                      affecting a CSP determination, adopted                1470.20 Application for contracts and
                                             614. Matters of general applicability,                   any scheme or device that tends to                        selecting offers from applicants.
                                             such as payment rates and limits, and                    defeat the purpose of the program,                    1470.21 Contract requirements.
                                             eligible conservation activities, are not                deprives any tenant or sharecropper of                1470.22 Conservation stewardship plan.
                                                                                                      payments to which they otherwise                      1470.23 Conservation activity operation
                                             subject to appeal.                                                                                                 and maintenance.
                                                                                                      would be entitled, or made any
                                             Section 1470.32 Compliance With                          fraudulent representation. Among the                  1470.24 Payments.
                                             Regulatory Measures                                      remedies available, NRCS may have                     1470.25 Contract modifications and
                                                                                                      their interest in all CSP contracts                       transfers of land.
                                                Section 1470.32, ‘‘Compliance with                                                                          1470.26 Contract renewal.
                                             regulatory measures,’’ is added to notify                terminated, and determine them                        1470.27 Contract violations and
                                                                                                      ineligible for future NRCS-administered                   termination.
                                             participants that they are responsible for
                                                                                                      conservation program funding.
                                             obtaining necessary authorities, rights,                                                                       Subpart C—General Administration
                                             easements, permits, and other approvals                  Section 1470.37 Environmental
                                                                                                                                                            1470.30 Fair treatment of tenants and
                                             necessary to implement, operate, and                     Credits for Conservation Improvements                     sharecroppers.
                                             maintain items specified in the                            Section 1470.37, ‘‘Environmental                    1470.31 Appeals.
                                             conservation stewardship plan.                           credits for conservation improvements,’’              1470.32 Compliance with regulatory
                                             Additionally, participants are                           provides NRCS’ policy on                                  measures.
                                             responsible for compliance with all laws                 environmental credits. NRCS believes                  1470.33 Access to agricultural operation.
                                             and for all effects or actions resulting                                                                       1470.34 Equitable relief.
                                                                                                      that environmental benefits can be
                                             from the implementation of the CSP                                                                             1470.35 Offsets and assignments.
                                                                                                      achieved by implementing conservation                 1470.36 Misrepresentation and scheme or
                                             contract.                                                activities funded through CSP. These                      device.
                                             Section 1470.33        Access to Operating               environmental benefits may result in                  1466.37 Environmental credits for
                                             Unit                                                     opportunities for the program                             conservation improvements.
                                                                                                      participant to sell environmental                         Authority: 16 U.S.C. 3838d–3838g.
                                               Section 1470.33, ‘‘Access to operating                 credits. These environmental credits
                                             unit,’’ is added to notify potential CSP                 must be compatible with the purposes                  Subpart A—General Provisions
                                             applicants and CSP participants that an                  of the CSP contract. NRCS asserts no
                                             authorized NRCS representative may                       direct or indirect interest in these                  § 1470.1    Applicability.
                                             enter an operating unit for the purpose                  credits. However, NRCS retains the                      (a) This part sets forth the policies,
                                             of determining eligibility, ascertaining                 authority to ensure that operation and                procedures, and requirements for the
                                             accuracy of any representations, and                     maintenance requirements for CSP-                     Conservation Stewardship Program
                                             confirming compliance with program                       funded improvements are met,                          (CSP) as administered by the Natural
                                             requirements during the term of the                      consistent with § 1470.21 and § 1470.23.              Resources Conservation Service (NRCS),
                                             contract. NRCS will attempt to contact                   Where actions may impact the land and                 for enrollment during fiscal year 2009
                                             the participant prior to entering the                    conservation activities under a CSP                   and thereafter.
                                             property.                                                contract, NRCS will at the request of the               (b) The purpose of CSP is to
                                             Section 1470.34        Equitable Relief                  participants, assist with the                         encourage producers to address resource
                                                                                                      development of an O&M compatibility                   concerns in a comprehensive manner
                                               Section 1470.34, ‘‘Equitable relief,’’                 assessment.                                           by:
                                             notifies a participant that he or she may                                                                        (1) Undertaking additional
                                             be eligible for equitable relief in                      List of Subjects in 7 CFR Part 1470
                                                                                                                                                            conservation activities; and
                                             accordance with 7 CFR part 635, if the                     Agricultural operation, Conservation                  (2) Improving, maintaining, and
                                             participant relied upon the advice or                    activities, Conservation measurement
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                                                                                                                                                            managing existing conservation
                                             action of NRCS and did not know or                       tool, Natural resources, Priority resource            activities.
                                             have reason to know that the action or                   concern, Stewardship threshold,                         (c) CSP is applicable in any of the 50
                                             advice was erroneous. This section also                  Resource-conserving crop rotation, Soil               States, the District of Columbia, the
                                             clarifies that liability for any action or               and water conservation, Soil quality,                 Commonwealth of Puerto Rico, Guam,
                                             advice taken on behalf of the TSP will                   Water quality and water conservation,                 the Virgin Islands of the United States,
                                             be assumed by the TSP.                                   Wildlife and forestry management.                     American Samoa, and the


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                                             37512             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             Commonwealth of the Northern Mariana                     agencies, conservation districts, Indian              management necessary for day-to-day
                                             Islands.                                                 Tribes, private entities, and individuals             activities, such that if each of the
                                                (d) NRCS provides financial                           to assist NRCS with program                           members did not provide these inputs,
                                             assistance and technical assistance to                   implementation.                                       operation of the farm or ranch would be
                                             participants for the conservation,                                                                             seriously impaired.
                                             protection, and improvement of soil,                     § 1470. 3   Definitions.                                 Chief means the Chief of NRCS,
                                             water, and other related natural                           The following definitions will apply                United States Department of Agriculture
                                             resources, and for any similar                           to this part and all documents issued in              (USDA), or designee.
                                             conservation purpose as determined by                    accordance with this part, unless                        Conservation activities means
                                             NRCS.                                                    specified otherwise:                                  conservation systems, practices, or
                                                                                                        Agricultural land means cropland,                   management measures needed to
                                             § 1470.2   Administration.                               rangeland, and pastureland on which                   address a resource concern or improve
                                                (a) The regulations in this part will be              agricultural products, or livestock are               environmental quality through the
                                             administered under the general                           produced and resource concerns may be                 treatment of natural resources, and
                                             supervision and direction of the Chief,                  addressed. Agricultural lands may also                includes structural, vegetative, and
                                             NRCS, who is a Vice President of the                     include other land and incidental areas               management activities, as determined
                                             Commodity Credit Corporation (CCC).                      included in the agricultural operation as             by NRCS.
                                                (b) The Chief is authorized to modify                 determined by NRCS.                                      Conservation district means any
                                             or waive a provision of this part if the                   Agricultural operation means all                    district or unit of State, Tribal, or local
                                             Chief deems the application of that                      agricultural land and other land, as                  government formed under State, Tribal,
                                             provision to a particular limited                        determined by NRCS, whether                           or territorial law for the express purpose
                                             situation to be inappropriate and                        contiguous or noncontiguous:                          of developing and carrying out a local
                                             inconsistent with the purposes of the                      (1) Which is under the effective                    soil and water conservation program.
                                             program. This authority cannot be                        control of the applicant for the term of              Such district or unit of government may
                                             further delegated. The Chief may not                     the proposed contract; and                            be referred to as a ‘‘conservation
                                             modify or waive any provision of this                      (2) Which is operated by the applicant              district,’’ ‘‘soil conservation district,’’
                                             part which is required by applicable                     with equipment, labor, management,                    ‘‘soil and water conservation district,’’
                                             law.                                                     and production or cultivation practices               ‘‘resource conservation district,’’ ‘‘land
                                                (c) To achieve the conservation goals                 that are substantially separate from                  conservation committee,’’ ‘‘natural
                                             of CSP, NRCS will:                                       other operations.                                     resource district,’’ or similar name.
                                                (1) Make the program available                          Animal waste storage or treatment                      Conservation measurement tool
                                             nationwide to eligible applicants on a                   facility means a structural conservation              means procedures developed by NRCS,
                                             continuous application basis with one                    practice used for storing or treating                 to estimate the level of environmental
                                             or more ranking periods to determine                     animal waste.                                         benefit to be achieved by a producer
                                             enrollments, one of the ranking periods                    Applicant means a person, legal                     using the proxy of conservation
                                             shall occur in the first quarter of each                 entity, joint operation, or Indian Tribe              performance improvement.
                                             fiscal year, to the extent practicable; and              that has an interest in an agricultural                  Conservation planning means using
                                                (2) Develop conservation                              operation, as defined in 7 CFR part                   the planning process outlined in the
                                             measurement tools for the purpose of                     1400, who has requested in writing to                 applicable National Planning
                                             carrying out the program.                                                                                      Procedures Handbook of the United
                                                                                                      participate in CSP.
                                                (d) NRCS will, to the maximum extent
                                                                                                        Beginning farmer or rancher means:                  States Department of Agriculture.
                                             practicable, manage CSP to achieve a
                                                                                                        (1) An individual or legal entity who:                 Conservation practice means a
                                             national average rate of $18 per acre,                     (i) Has not operated a farm, ranch, or              specified treatment, such as a structural
                                             which includes the costs of all financial                nonindustrial private forest land, or                 or vegetative practice or management
                                             and technical assistance, and any other
                                                                                                      who has operated a farm, ranch, or                    technique, commonly used to meet a
                                             expenses associated with program
                                                                                                      nonindustrial private forest land for not             specific need in planning and carrying
                                             enrollment and participation.
                                                (e) NRCS will establish a national                    more than 10 consecutive years (this                  out soil and water conservation
                                             target to set aside five percent of CSP                  requirement applies to all members of a               programs for which standards and
                                             acres for socially disadvantaged farmers                 legal entity); and                                    specifications, including interim
                                                                                                        (ii) Will materially and substantially              standards and specifications, have been
                                             or ranchers, and an additional five
                                             percent of CSP acres for beginning                       participate in the operation of the farm              developed. Conservation practices are in
                                             farmers or ranchers.                                     or ranch.                                             the NRCS Field Office Technical Guide
                                                (f) The State Conservationist will:                     (2) In the case of a contract with an               (FOTG), Section IV, which is based on
                                                (1) Obtain advice from the State                      individual, individually or with the                  the National Handbook of Conservation
                                             Technical Committee and local working                    immediate family, material and                        Practices (NHCP).
                                             groups on the development of State-                      substantial participation requires that                  Conservation stewardship plan means
                                             level technical, outreach, and program                   the individual provide substantial day-               a record of the participant’s decisions
                                             issues, including the identification of                  to-day labor and management of the                    that describes the schedule of
                                             priority resource concerns for a State, or               farm or ranch, consistent with the                    conservation activities to be
                                             the specific geographic areas within a                   practices in the county or State where                implemented, managed, or improved.
                                             State;                                                   the farm is located.                                  Associated supporting information that
                                                (2) Assign NRCS employees as                            (3) In the case of a contract with a                identifies and inventories resource
                                                                                                      legal entity or joint operation, all
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                                             Designated Conservationists to be                                                                              concerns and existing conservation
                                             responsible for CSP at the local level;                  members must materially and                           activities, establishes benchmark data,
                                             and                                                      substantially participate in the                      and documents the participant’s
                                                (3) Be responsible for the program in                 operation of the farm or ranch. Material              conservation objectives will be
                                             their assigned State.                                    and substantial participation requires                maintained with the plan.
                                                (g) NRCS may enter into agreements                    that each of the members provide some                    Conservation system means a
                                             with Federal agencies, State and local                   amount of the management, or labor and                combination of conservation practices,


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                        37513

                                             management measures, and                                 Settlement Act (43 U.S.C. 1601 et seq.),                 Payment means financial assistance
                                             enhancements used to address natural                     which is recognized as eligible for the               provided to the participant under the
                                             resource and environmental concerns in                   special programs and services provided                terms of the CSP contract.
                                             a comprehensive, holistic, and                           by the United States to Indians because                  Person means, as defined in part 1400
                                             integrated manner.                                       of their status as Indians.                           of this chapter, an individual, natural
                                                Contract means a legal document that                     Joint operation means, as defined in               person and does not include a legal
                                             specifies the rights and obligations of                  part 1400 of this chapter, a general                  entity.
                                             any participant who has been accepted                    partnership, joint venture, or other                     Priority resource concern means a
                                             into the program. A CSP contract is an                   similar business arrangement in which                 resource concern that is identified by
                                             agreement for the transfer of assistance                 the members are jointly and severally                 the State Conservationist, in
                                             from NRCS to the participant for                         liable for the obligations of the                     consultation with the State Technical
                                             installing, adopting, improving,                         organization.                                         Committee and local working groups, as
                                             managing, and maintaining                                   Legal entity means, as defined in part             a priority for a State, or the specific
                                             conservation activities.                                 1400 of this chapter, an entity created               geographic areas within a State.
                                                Designated Conservationist means an                   under Federal or State law.                              Producer means a person, legal entity,
                                             NRCS employee whom the State                                Liquidated damages means a sum of                  or joint operation who has an interest in
                                             Conservationist has designated as                        money stipulated in the CSP contract                  the agricultural operation, according to
                                             responsible for CSP at the local level.                  that the participant agrees to pay NRCS               part 1400 of this chapter, or who is
                                                Enhancement means a type of                           if the participant fails to fulfill the terms         engaged in agricultural production or
                                             conservation activity used to treat                      of the contract. The sum represents an                forest management.
                                             natural resources and improve                            estimate of the technical assistance                     Resource concern means a specific
                                             conservation performance.                                expenses incurred to service the                      natural resource problem that is likely
                                             Enhancements are installed at a level of                 contract, and reflects the difficulties of            to be addressed successfully through the
                                             management intensity that exceeds the                    proof of loss and the inconvenience or                implementation of conservation
                                             sustainable level for a given resource                   non-feasibility of otherwise obtaining an             activities by producers.
                                             concern, and those directly related to a                 adequate remedy.                                         Resource-conserving crop means a
                                             practice standard are applied in a                          Local working group means the                      crop that is one of the following:
                                             manner that exceeds the minimum                          advisory body as described in 7 CFR                      (1) A perennial grass, legume, or
                                             treatment requirements of the standard.                  part 610.                                             grass/legume grown for use as forage,
                                                Enrollment means for the initial                         Management measure means one or                    seed for planting, or green manure;
                                             signup for FY2009, NRCS will consider                    more specific actions that is not a                      (2) A high residue producing crop; or
                                             a participant ‘‘enrolled’’ in CSP based                                                                           (3) A cover crop following an annual
                                                                                                      conservation practice, but has the effect
                                             on the fiscal year the application is                                                                          crop.
                                                                                                      of alleviating problems or improving the                 Resource-conserving crop rotation
                                             submitted, once NRCS approves the                        treatment of the natural resources.
                                             participant’s contract. For subsequent                                                                         means a crop rotation that:
                                                                                                         National Organic Program means the                    (1) Includes at least one resource
                                             ranking cut-off periods, NRCS will                       program, administered by the                          conserving crop as determined by the
                                             consider a participant enrolled in CSP                   Agricultural Marketing Service, USDA,                 State Conservationist;
                                             based on the fiscal year the contract is                 which regulates the standards for any                    (2) Reduces erosion;
                                             approved.                                                farm, wild crop harvesting, or handling                  (3) Improves soil fertility and tilth;
                                                Field office technical guide (FOTG)                   operation that wants to market an                        (4) Interrupts pest cycles; and
                                             means the official local NRCS source of                  agricultural product as organically                      (5) Reduces depletion of soil moisture
                                             resource information and interpretations                 produced.                                             or otherwise reduces the need for
                                             of guidelines, criteria, and standards for                  Natural Resources Conservation                     irrigation in applicable areas.
                                             planning and applying conservation                       Service means an agency of the USDA,                     Secretary means the Secretary of the
                                             practices and conservation management                    which has responsibility for                          USDA.
                                             systems. It contains detailed                            administering CSP using the funds,                       Socially disadvantaged farmer or
                                             information on the conservation of soil,                 facilities, and authorities of the                    rancher means a producer who has been
                                             water, air, plant, and animal resources                  Commodity Credit Corporation.                         subjected to racial or ethnic prejudices
                                             applicable to the local area for which it                   Nonindustrial private forest land                  because of their identity as a member of
                                             is prepared.                                             means rural land that has existing tree               a group without regard to their
                                                Indian lands means all lands held in                  cover or is suitable for growing trees,               individual qualities. A socially
                                             trust by the United States for individual                and is owned by an individual, group,                 disadvantaged group is a group whose
                                             Indians or Indian Tribes, or all land                    association, corporation, Indian Tribe,               members have been subject to racial or
                                             titles held by individual Indians or                     or other private legal entity that has                ethnic prejudice because of their
                                             Tribes, subject to Federal restrictions                  definitive decision-making authority                  identity as members of a group, without
                                             against alienation or encumbrance, or                    over the land.                                        regard to their individual qualities.
                                             lands subject to the rights of use,                         Operation and maintenance means                    These groups consist of American
                                             occupancy and/or benefit of certain                      work performed by the participant to                  Indians or Alaskan Natives, Asians,
                                             Indian Tribes. This term also includes                   maintain existing conservation activities             Blacks or African Americans, Native
                                             lands for which the title is held in fee                 to at least the level of conservation                 Hawaiians or other Pacific Islanders,
                                             status by Indian Tribes, and the U.S.                    performance identified at the time of                 and Hispanics. Gender alone is not a
                                             Government-owned land under the                          application, and maintain additional                  covered group for the purposes of NRCS
                                                                                                                                                            conservation programs. A socially
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                                             Bureau of Indian Affairs jurisdiction.                   conservation activities installed and
                                                Indian Tribe means any Indian Tribe,                  adopted over the contract period.                     disadvantaged applicant is an
                                             band, nation, pueblo, or other organized                    Participant means a person, legal                  individual or entity who is a member of
                                             group or community, including any                        entity, joint operation, or Indian Tribe              a socially disadvantaged group. For an
                                             Alaska Native village or regional                        that is receiving payment or is                       entity, at least 50 percent ownership in
                                             corporation as defined in or established                 responsible for implementing the terms                the farm business must be held by
                                             pursuant to the Alaska Native Claims                     and conditions of a CSP contract.                     socially disadvantaged individuals.


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                                             37514             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                State Conservationist means the                       § 1470.5   Outreach activities.                       entity. Where applicable, American
                                             NRCS employee authorized to                                 (a) NRCS will establish program                    Indians, Alaska Natives, and Pacific
                                             implement CSP and direct and                             outreach activities at the national, State,           Islanders may use another unique
                                             supervise NRCS activities in a State, the                and local levels to ensure that potential             identification number for each
                                             Caribbean Area, or the Pacific Islands                   applicants who control eligible land are              individual eligible for payment.
                                             Area.                                                    aware and informed that they may be                      (b) Eligible land. A contract
                                                State Technical Committee means a                     eligible to apply for program assistance.             application must include the eligible
                                             committee established by the Secretary                      (b) Special outreach will be made to               land on an applicant’s entire
                                             in a State pursuant to 16 U.S.C. 3861.                   eligible producers with historically low              agricultural operation, except as
                                                Stewardship threshold means the                       participation rates, including but not                identified in paragraph (b)(3) of this
                                             level of natural resource conservation                   restricted to, beginning farmers or                   section. The land as described below is
                                             and environmental management                             ranchers, limited resource producers,                 part of the agricultural operation, and
                                             required, as determined by NRCS using                    and socially disadvantaged farmers or                 eligible for enrollment and payment
                                             conservation measurement tools, to                       ranchers, Indian Tribes, Alaska Natives,              under CSP:
                                             conserve and improve the quality and                     and Pacific Islanders.                                   (1) Private agricultural land;
                                             condition of a natural resource.                            (c) NRCS will ensure that outreach is
                                                                                                                                                               (2) Agricultural Indian lands; and
                                                Technical assistance means technical                  provided so as not to limit producer
                                             expertise, information, and tools                        participation because of size or type or                 (3) Nonindustrial private forest land
                                             necessary for the conservation of natural                operation, or production system,                      (NIPF).
                                             resources on land active in agricultural,                including specialty crop and organic                     (i) By special rule in the statute, NIPF
                                             forestry, or related uses. The term                      production.                                           is eligible land.
                                             includes the following:                                                                                           (ii) No more than 10 percent of the
                                                (1) Technical services provided                       § 1470.6   Eligibility requirements.                  acres enrolled nationally in any fiscal
                                             directly to farmers, ranchers, and other                   (a) Eligible applicant. To be eligible to           year may be NIPF.
                                             eligible entities, such as conservation                  participate in CSP, at the time of                       (iii) The applicant will designate by
                                             planning, technical consultation, and                    application, an applicant must meet all               submitting a separate application if they
                                             assistance with design and                               the following requirements:                           want to offer NIPF for funding
                                             implementation of conservation                             (1) Be the operator in the Farm                     consideration.
                                             activities; and                                          Service Agency (FSA) farm records                        (iv) If designated for funding
                                                (2) Technical infrastructure, including               management system for the agricultural                consideration, then the NIPF component
                                             processes, tools and agency functions                    operation being offered for enrollment                of the operation will include all the
                                             needed to support delivery of technical                  in the program. Potential applicants that             applicant’s NIPF. If not designated for
                                             services, such as technical standards,                   are not in the FSA farm records                       funding consideration, then the
                                             resource inventories, training, data,                    management system must establish                      applicant’s NIPF will not be part of the
                                             technology, monitoring, and effects                      records with FSA prior to application.                agricultural operation.
                                             analyses.                                                Potential applicants whose records are
                                                                                                      not current in the FSA farm records                      (c) Ineligible land. The following
                                                Technical Service Provider (TSP)                                                                            ineligible lands are part of the
                                             means an individual, private-sector                      management system must update those
                                                                                                      records with FSA prior to application;                agricultural operation, but ineligible for
                                             entity, or public agency certified by                                                                          inclusion in the contract or for payment
                                             NRCS to provide technical services to                      (2) Have documented control of the
                                                                                                      land for the term of the proposed                     in CSP:
                                             program participants, in lieu of or on
                                                                                                      contract unless an exception is made by                  (1) Land enrolled in the Conservation
                                             behalf of NRCS as referenced in 7 CFR
                                                                                                      the Chief in the case of land allotted by             Reserve Program, 7 CFR part 1410;
                                             part 652.
                                                                                                      the Bureau of Indian Affairs (BIA),                      (2) Land enrolled in the Wetlands
                                             § 1470.4   Allocation and management.                    Indian lands, or other instances in                   Reserve Program, 7 CFR part 1467;
                                               (a) The Chief will allocate acres and                  which the Chief determines that there is                 (3) Land enrolled in the Grassland
                                             associated funds to State                                sufficient assurance of control;                      Reserve Program, 7 CFR part 1415;
                                             Conservationists, based:                                   (3) Be in compliance with the highly                   (4) Land enrolled in the Conservation
                                               (1) Primarily on each State’s                          erodible land and wetland conservation                Security Program, 7 CFR part 1469;
                                             proportion of eligible land to the total                 provisions found at 7 CFR part 12;                       (5) Public land including land owned
                                             amount of eligible land in all States; and                 (4) Be in compliance with Adjusted                  by a Federal, State, or local unit of
                                               (2) On consideration of—                               Gross Income provisions found at 7 CFR                government; and
                                               (i) The extent and magnitude of the                    part 1400;
                                                                                                        (5) Supply information, as required by                 (6) Land used for crop production
                                             conservation needs associated with
                                                                                                      NRCS, to determine eligibility for the                after June 18, 2008, that had not been
                                             agricultural production in each State,
                                               (ii) The degree to which                               program, including but not limited to,                planted, considered to be planted, or
                                             implementation of the program in the                     information related to eligibility                    devoted to crop production for at least
                                             State is, or will be, effective in helping               requirements and ranking factors;                     4 of the 6 years preceding that date,
                                             producers address those needs, and                       conservation activity and production                  unless that land—
                                               (iii) Other considerations determined                  system records; information to verify the                (i) Had previously been enrolled in
                                             by the Chief, to achieve equitable                       applicant’s status as a beginning farmer              the Conservation Reserve Program,
                                             geographic distribution of program                       and rancher or socially disadvantaged                    (ii) Has been maintained using long-
                                             participation.                                                                                                 term crop rotation practices as
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                                                                                                      farmer or rancher, if applicable; and
                                               (b) In any fiscal year, acres allocated                payment eligibility as established by 7               determined by the Designated
                                             to a State that are not enrolled by a date               CFR part 1400; and                                    Conservationist, or
                                             determined by the Chief, may be                            (6) Provide a list of all members of the               (iii) Is incidental land needed for
                                             reallocated with associated funds to                     legal entity and embedded entities along              efficient operation of the farm or ranch
                                             another State for use in that fiscal year                with members’ tax identification                      as determined by the Designated
                                             under CSP.                                               numbers and percentage interest in the                Conservationist.


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                         37515

                                             § 1470.7 Enhancements and conservation                   least one priority resource concern by                criteria for evaluating applications that
                                             practices.                                               the end of the conservation stewardship               are determined necessary to ensure that
                                               (a) Participant decisions describing                   contract by—                                          national, State, and local conservation
                                             the additional enhancements and                             (i) Installing and adopting additional             priorities are effectively addressed.
                                             conservation practices to be                             conservation activities, and                            (e) Application. The State
                                             implemented under the conservation                          (ii) Improving, maintaining, and                   Conservationist will take the following
                                             stewardship contract will be recorded in                 managing conservation activities                      actions to facilitate the evaluation and
                                             the conservation stewardship plan.                       present on the agricultural operation at              ranking of applications:
                                               (b) NRCS will make available to the                    the time the contract application is                    (1) Implement the use of the
                                             public the list of enhancements and                      accepted by NRCS;                                     conservation measurement tool to
                                             conservation practices available to be                      (3) Provides a map, aerial photograph,             estimate existing and proposed
                                             installed, adopted, maintained, and                      or overlay that—                                      conservation performance;
                                             managed through CSP.                                        (i) Identifies the applicant’s                       (2) Identify not less than 3 nor more
                                                                                                      agricultural operation and/or NIPF                    than 5 priority resource concerns for a
                                             § 1470.8   Technical and other assistance.               component of the operation, and                       State, or the specific geographic areas
                                                (a) NRCS may provide technical                           (ii) Delineates eligible land offered for          within a State, with advice from the
                                             assistance to an eligible applicant or                   payment with associated acreage                       State Technical Committee and local
                                             participant either directly or through a                 amounts; and                                          working groups; and
                                             technical service provider as set forth in                  (4) If the applicant is applying for on-             (3) Establish ranking pools for
                                             7 CFR part 652.                                          farm research and demonstration                       application evaluation purposes.
                                                (b) NRCS retains approval authority                   activities or for pilot testing, describes              (f) Ranking pools. Ranking pools will
                                             over certification of work done by non-                  the nature of the research,                           be established based on the same State
                                             NRCS personnel for the purpose of                        demonstration or pilot testing in a                   or geographic area boundaries used to
                                             approving CSP payments.                                  manner consistent with design protocols               identify priority resource concerns so
                                                (c) NRCS will ensure that technical                   and application procedures established                applicants will be ranked relative to
                                             assistance is available and program                      by NRCS.                                              other applicants who share similar
                                                                                                         (c) Evaluation of contract
                                             specifications are appropriate so as not                                                                       resource challenges.
                                                                                                      applications. NRCS will conduct one or
                                             to limit producer participation because                                                                          (1) NIPF will compete in ranking
                                                                                                      more ranking periods each fiscal year.
                                             of size or type or operation, or                                                                               pools separate from agricultural land.
                                                                                                         (1) To the extent practicable, one
                                             production system, including specialty                   ranking period will occur in the first                An applicant with both NIPF and
                                             crop and organic production. In                          quarter of the fiscal year.                           agricultural land will have the options
                                             providing technical assistance to                           (2) In evaluating CSP applications, the            to submit:
                                             specialty crop and organic producers,                    State Conservationist or Designated                     (i) One application for NIPF;
                                             NRCS will provide appropriate training                   Conservationist will rank applications                  (ii) One application for agricultural
                                             to field staff to enable them to work                    based on the following factors, using the             land; or
                                             with these producers and to utilize                                                                              (iii) Two applications, one for each
                                                                                                      conservation measurement tool, to the
                                             cooperative agreements and contracts                                                                           land type.
                                                                                                      maximum extent practicable—
                                             with nongovernmental organizations                          (i) Level of conservation treatment on               (2) An applicant with an agricultural
                                             with expertise in delivering technical                   all applicable priority resource concerns             operation or NIPF component of the
                                             assistance to these producers.                           at the time of application;                           operation that crosses ranking pool
                                                (d) NRCS will assist potential                           (ii) Degree to which the proposed                  boundaries will make application and
                                             applicants dealing with the                              conservation treatment on applicable                  be ranked in the ranking pool where the
                                             requirements of certification under the                  priority resource concerns effectively                largest acreage portion of their operation
                                             National Organic Program and CSP                         increases conservation performance;                   occurs.
                                             requirements concerning how to                              (iii) Number of applicable priority                  (3) Within each established
                                             coordinate and simultaneously meet                       resource concerns proposed to be                      geographic area, the State
                                             eligibility standards under each                         treated to meet or exceed the                         Conservationist will set up special pools
                                             program.                                                 stewardship threshold by the end of the               for conservation access for certain
                                                                                                      contract; and                                         farmers or ranchers, including:
                                             Subpart B—Contracts and Payments                            (iv) Extent to which other resource                  (i) One pool for socially
                                                                                                      concerns, in addition to priority                     disadvantaged farmers or ranchers; and
                                             § 1470.20 Application for contracts and                                                                          (ii) One pool for beginning farmers or
                                                                                                      resource concerns, will be addressed to
                                             selecting offers from applicants.                                                                              ranchers.
                                                                                                      meet or exceed the stewardship
                                               (a) Submission of contract                             threshold by the end of the contract                    (4) Applicants who want their
                                             applications. Eligible applicants may                    period.                                               application considered in the pool for
                                             submit an application to enroll eligible                    (3) In the event that application                  socially disadvantaged farmers or
                                             land into CSP on a continuous basis.                     ranking scores from (2) above are                     ranchers or beginning farmers or
                                               (b) Eligibility. To be eligible to                     similar, the application that represents              ranchers will designate that intent on
                                             participate in CSP, an applicant must                    the least cost to the program will be                 their application and provide the
                                             submit to the Designated                                 given higher priority.                                required information.
                                             Conservationist for approval, a contract                    (4) The State Conservationist or                     (5) In any fiscal year, acres and
                                             application that:                                        Designated Conservationist may not                    associated funds allocated to a ranking
                                               (1) Indicates the applicant’s                                                                                pool or pool that are not enrolled by a
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                                                                                                      assign a higher priority to any
                                             conservation activities, at the time of                  application because the applicant is                  date determined by the State
                                             application, are meeting the                             willing to accept a lower payment than                Conservationist, may be reallocated
                                             stewardship threshold for at least one                   the applicant would otherwise be                      within the State for use in that fiscal
                                             resource concern;                                        eligible to receive.                                  year under CSP.
                                               (2) Would, at a minimum, meet or                          (d) State and local priorities. The                  (g) Application approval. The State
                                             exceed the stewardship threshold for at                  Chief may develop and use additional                  Conservationist or Designated


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                                             37516             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             Conservationist will make application                      (5) Permit all economic uses of the                 the level of conservation performance
                                             approval determinations during                           land that:                                            identified at the time of application for
                                             established ranking periods based on                       (i) Maintain the agricultural or                    the conservation stewardship contract
                                             eligibility and ranking score. An eligible               forestry nature of the land, and                      period and additional activities
                                             application may be approved for                            (ii) Are consistent with the                        installed and adopted over the term of
                                             funding after a determination of the                     conservation purposes of the contract;                the conservation stewardship contract.
                                             application’s ranking priority.                            (6) Include a provision to ensure that
                                                                                                      a participant shall not be considered in              § 1470.24    Payments.
                                             § 1470.21   Contract requirements.                       violation of the contract for failure to                 (a) Annual payments. Subject to the
                                                (a) After a determination that the                    comply with the contract due to                       availability of funds, NRCS will provide
                                             application will be approved and a                       circumstances beyond the control of the               an annual payment under the program
                                             conservation stewardship plan will be                    participant, including a disaster or                  to compensate a participant for
                                             developed in accordance with                             related condition, as determined by the               installing and adopting additional
                                             § 1470.22, the State Conservationist or                  State Conservationist; and                            conservation activities, and improving,
                                             designee shall enter into a conservation                   (7) Include such other provisions as                maintaining, and managing existing
                                             stewardship contract with the                            NRCS determines necessary to ensure                   activities.
                                             participant to enroll the eligible land to               the purposes of the program are                          (1) To receive an annual payment, a
                                             receive payment.                                         achieved.                                             participant must:
                                                (b) The conservation stewardship                                                                               (i) Install and adopt additional
                                             contract shall:                                          § 1470.22    Conservation stewardship plan.           conservation activities as scheduled in
                                                (1) Provide for payments over a period                   (a) NRCS will use the conservation                 the conservation stewardship plan. At
                                             of 5 years;                                              planning process as outlined in the                   least one enhancement must be
                                                (2) Incorporate by reference the                      National Planning Procedures                          scheduled, installed, and adopted in the
                                             conservation stewardship plan;                           Handbook to encourage participants to                 first year of the contract. All
                                                (3) State the payment amount NRCS                     address resource concerns in a                        enhancements must be scheduled,
                                             agrees to make to the participant                        comprehensive manner.                                 installed, and adopted by the end of the
                                             annually, subject to the availability of                    (b) The conservation stewardship plan              third year of the contract; and
                                             funds;                                                   will contain a record of the participant’s               (ii) Maintain at least the level of
                                                (4) Incorporate all provisions as                     decisions that describes the schedule of              existing conservation performance
                                             required by law or statute, including                    conservation activities to be                         identified at the time of application for
                                             requirements that the participant will—                  implemented, managed, or improved                     the conservation stewardship contract
                                                (i) Implement the conservation                        under the conservation stewardship                    period.
                                             stewardship plan approved by NRCS                        contract.                                                (2) A participant’s annual payment
                                             during the term of the contract,                            (c) Associated supporting information              will be determined using the
                                                (ii) Operate and maintain                             maintained with the participant’s plan                conservation performance estimated by
                                             conservation activities on the                           will:                                                 the conservation measurement tool, and
                                             agricultural operation consistent with                      (1) Identify and inventory resource                computed by land-use type for enrolled
                                             § 1470.23,                                               concerns;                                             eligible land.
                                                (iii) Comply with the terms of the                       (2) Establish benchmark data on the                   (3) The annual payment rates will be
                                             contract, or documents incorporated by                   condition of existing conservation                    based to the maximum extent
                                             reference into the contract,                             activities;                                           practicable, on the following factors:
                                                (iv) Refund as determined by NRCS,                       (3) Document the participant’s                        (i) Costs incurred by the participant
                                             any program payments received with                       conservation objectives to reach and                  associated with planning, design,
                                             interest, and forfeit any future payments                exceed stewardship thresholds;                        materials, installation, labor,
                                             under the program, upon the violation                       (4) Include a plan map delineating                 management, maintenance, or training;
                                             of a term or condition of the contract,                  enrolled land with associated acreage                    (ii) Income foregone by the
                                             consistent with § 1470.27,                               amounts receiving program payments;                   participant; and
                                                (v) Refund as determined by NRCS,                        (5) Include in the case where a                       (iii) Expected environmental benefits,
                                             all program payments received with                       participant wishes to initiate or retain              determined by estimating conservation
                                             interest, upon the transfer of the right                 organic certification, documentation                  performance improvement using the
                                             and interest of the participant, in land                 that will support the participant’s                   conservation measurement tool.
                                             subject to the contract, unless the                      transition to or participation in the                    (4) The annual payment method will
                                             transferee of the right and interest agrees              National Organic Program;                             accommodate some participant
                                             to assume all obligations of the contract,                  (6) Include in the case where a                    operational adjustments without the
                                             consistent with § 1470.25,                               participant is approved for the on-farm               need for contract modification.
                                                (vi) Maintain, and make available to                  research and demonstration or pilot                      (i) Enhancements may be replaced
                                             NRCS upon request, appropriate records                   testing option, a research,                           with similar enhancements as long as
                                             documenting applied conservation                         demonstration or pilot testing plan                   the conservation performance estimated
                                             activity and production system                           consistent with design protocols and                  by the conservation measurement tool is
                                             information, and providing evidence of                   application procedures established by                 equal to or better than the conservation
                                             the effective and timely implementation                  NRCS; and                                             performance of the additional
                                             of the conservation stewardship plan                        (7) Contain other information as                   enhancements offered at enrollment. An
                                             and contract, and                                                                                              enhancement replacement that results
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                                                                                                      determined appropriate by NRCS.
                                                (vii) Not engage in any action during                                                                       in a decline below that conservation
                                             the term of the conservation                             § 1470.23 Conservation activity operation             performance level will not be allowed.
                                             stewardship contract on the eligible                     and maintenance.                                         (ii) Adjustments to existing activities
                                             land covered by the contract that would                    The participant will operate and                    may occur consistent with conservation
                                             interfere with the purposes of the                       maintain existing conservation activities             performance requirements from
                                             conservation stewardship contract;                       on the agricultural operation to at least             § 1470.23(a).


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                           37517

                                                (5) Enhancements may be applied on                    aggregate, exceed $40,000 during any                  quantification of the amount of
                                             other land included in an agricultural                   fiscal year for all CSP contracts entered             payments made for:
                                             operation, as determined by NRCS.                        into, and $200,000 for all CSP contracts                (1) Installing and adopting additional
                                                (b) Supplemental payments. Subject                    entered into during any 5-year period,                activities;
                                             to the availability of funds, NRCS will                  excluding funding arrangements with                     (2) Improving, maintaining, and
                                             provide a supplemental payment to a                      federally recognized Indian tribes or                 managing existing activities;
                                             participant receiving annual payments,                   Alaska Native corporations, regardless                  (3) Participation in research and
                                             who also agrees to adopt a resource-                     of the number of contracts entered into               demonstration, or pilot projects; and
                                             conserving crop rotation.                                under the CSP by the person or legal                    (4) Development and periodic
                                                (1) The State Conservationist will                    entity.                                               assessment and evaluation of
                                             determine whether a resource-                               (g) Contract limit. Each conservation              conservation stewardship plans
                                             conserving crop rotation is eligible for                 stewardship contract will be limited to               developed under this rule.
                                             supplemental payments based on                           $200,000 over the term of the initial
                                             whether the resource-conserving crop                     contract period.                                      § 1470.25 Contract modifications and
                                                                                                         (h) Payment limitation provisions for              transfers of land.
                                             rotation is designed to provide natural
                                             resource conservation and production                     Indians for Indians represented by the                   (a) NRCS may allow a participant to
                                             benefits.                                                BIA. With regard to contracts with                    modify a conservation stewardship
                                                (2) A participant must agree to adopt                 individual Indians or Indians                         contract if NRCS determines that the
                                             and maintain a beneficial resource-                      represented by BIA, payments                          modification is consistent with
                                             conserving crop rotation for the term of                 exceeding the payment limitation may                  achieving the purposes of the program.
                                             the contract to be eligible to receive a                 be made to the Tribal participant if a                   (b) NRCS will not allow a participant
                                             supplemental payment. A resource-                        BIA or Tribal official certifies in writing           to modify a conservation stewardship
                                             conserving crop rotation is considered                   that no one individual, directly or                   contract to increase the contract
                                             adopted when the resource-conserving                     indirectly, will receive more than the                obligation beyond the amount of the
                                             crop is planted on at least one-third of                 payment limitation. The Tribal entity                 initial contract, with exception for
                                             the rotation acres. The resource-                        must also provide, annually, a listing of             contracts approved by NRCS for
                                             conserving crop must be adopted by the                   individuals and payments made, by                     renewal.
                                             third year of the contract and planted on                social security or tax identification                    (c) Land under contract will be
                                             all rotation acres by the fifth year of the              number or other unique identification                 considered transferred if the participant
                                             contract.                                                number, during the previous year for                  loses control of the acreage for any
                                                (3) The supplemental payment rate                     calculation of overall payment                        reason.
                                             will be based, to the maximum extent                     limitations. The Tribal entity must also                 (1) The participant is responsible to
                                             practicable, on costs incurred and                       produce, at the request of NRCS, proof                notify NRCS prior to any voluntary or
                                             income foregone by the participant and                   of payments made to the person or legal               involuntary transfer of land under
                                             expected environmental benefits,                         entity that incurred costs or sacrificed              contract.
                                             determined by estimating conservation                    income related to conservation activity                  (2) If all or part of the land under
                                             performance improvement using the                        implementation.                                       contract is transferred, the contract
                                             conservation measurement tool.                              (i) Requirements for payment. To be                terminates with respect to the
                                                (c) On-farm research and                              eligible to receive a CSP payment, all                transferred land unless:
                                             demonstration or pilot testing. A                        legal entities or persons applying, either               (i) The transferee of the land provides
                                             participant may be compensated                           alone or as part of a joint operation,                written notice within 60 days to NRCS
                                             through their annual payment for:                        must provide a tax identification                     that all duties and rights under the
                                                (1) On-farm research and                              number and percentage interest in the                 contract have been transferred to, and
                                             demonstration activities; or                             legal entity. In accordance with 7 CFR                assumed by, the transferee; and
                                                (2) Pilot testing of new technologies or              part 1400, an applicant applying as a                    (ii) The transferee meets the eligibility
                                             innovative conservation activities.                      joint operation or legal entity must                  requirements of the program.
                                                (d) Timing of payments. NRCS will                     provide a list of all members of the legal
                                                                                                      entity and joint operation and                        § 1470.26    Contract renewal.
                                             make payments as soon as practicable
                                             after October 1 of each fiscal year for                  associated embedded entities, along                      (a) At the end of an initial
                                             activities carried out in the previous                   with the members’ social security                     conservation stewardship contract,
                                             fiscal year.                                             numbers and percentage interest in the                NRCS will allow a participant to renew
                                                (e) Noncompensatory matters. A CSP                    joint operation or legal entity. Where                the contract to receive payments for one
                                             payment to a participant shall not be                    applicable, American Indians, Alaska                  additional five-year period, subject to
                                             provided for:                                            Natives, and Pacific Islanders may use                the availability of funds, if they meet
                                                (1) Conservation practices or                         another unique identification number                  criteria from paragraph (b) of this
                                             enhancements applied with financial                      for each individual eligible for payment.             section.
                                             assistance through other USDA                               (j) Unique tax identification numbers.                (b) To be considered for contract
                                             conservation programs;                                   Any participant that utilizes a unique                renewal, the participant must:
                                                (2) The design, construction, or                      identification number as an alternative                  (1) Be in compliance with the terms
                                             maintenance of animal waste storage or                   to a tax identification number will                   of their initial contract as determined by
                                             treatment facilities or associated waste                 utilize only that identifier for any and              NRCS;
                                             transport or transfer devices for animal                 all other CSP contracts to which the                     (2) Add any newly acquired eligible
                                                                                                                                                            land that is part of the agricultural
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                                             feeding operations; or                                   participant is a party. Violators will be
                                                (3) Conservation activities for which                 considered to have provided fraudulent                operation and meets minimum
                                             there is no cost incurred or income                      representation and be subject to full                 treatment criteria as established and
                                             foregone by the participant.                             penalties of § 1470.36.                               determined by NRCS;
                                                (f) Payment limits. A person or legal                    (k) Payment data. NRCS will maintain                  (3) Meet stewardship thresholds for
                                             entity may not receive, directly or                      detailed and segmented data on CSP                    additional priority resource concerns as
                                             indirectly, payments that, in the                        contracts and payments to allow for                   determined by NRCS; and


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                                             37518             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                               (4) Agree to adopt conservation                        payments received if a previously                     compliance with all laws and for all
                                             activities as determined by NRCS.                        installed conservation activity has                   effects or actions resulting from the
                                                                                                      achieved the expected conservation                    implementation of the contract.
                                             § 1470.27 Contract violations and                        performance improvement, is not
                                             termination.                                                                                                   § 1470.33    Access to agricultural operation.
                                                                                                      adversely affected by the violation or
                                                (a) The State Conservationist may                     the absence of other conservation                       NRCS will have the right to enter an
                                             terminate, or by mutual consent with                     activities that would have been installed             agricultural operation for the purposes
                                             the participants, terminate a contract                   under the contract, and the associated                of determining eligibility and for
                                             where:                                                   operation and maintenance requirement                 ascertaining the accuracy of any
                                                (1) The participants are unable to                    of the activity had been met.                         representations, including natural
                                             comply with the terms of the contract as                    (2) NRCS will have the option to                   resource information provided by an
                                             the result of conditions beyond their                    reduce or waive the liquidated damages,               applicant for the purpose of evaluating
                                             control; or                                              depending upon the circumstances of                   a contract application. Access shall
                                                (2) Contract termination, as                          the case.                                             include the right to provide technical
                                             determined by the State Conservationist,                    (i) When terminating a contract, NRCS              assistance, determine eligibility, assess
                                             is in the public interest.                               may reduce the amount of money owed                   natural resource conditions, inspect any
                                                (b) If a contract is terminated in                    by the participant by a proportion that               work undertaken under the contract,
                                             accordance with the provisions of                        reflects the good faith effort of the                 and collect information necessary to
                                             paragraph (a) of this section, the State                 participant to comply with the contract               evaluate the implementation of
                                             Conservationist may allow the                            or the existence of hardships beyond the              conservation activities in the contract.
                                             participant to retain a portion of any                   participant’s control that have                       NRCS shall make an effort to contact the
                                             payments received appropriate to the                     prevented compliance with the contract.               participant prior to the exercise of this
                                             effort the participant has made to                       If a participant claims hardship, that                provision.
                                             comply with the contract, or, in cases of                claim must be well documented and
                                             hardship, where forces beyond the                        cannot have existed when the applicant                § 1470.34    Equitable relief.
                                             participant’s control prevented                          applied for participation in the program.                (a) If a participant relied upon the
                                             compliance with the contract. If a                          (ii) In carrying out its role in this              advice or action of NRCS and did not
                                             participant claims hardship, such                        section, NRCS may consult with the                    know, or have reason to know, that the
                                             claims must be clearly documented and                    local conservation district.                          action or advice was improper or
                                             cannot have existed when the applicant                                                                         erroneous, the participant may be
                                             applied for participation in the program.                Subpart C—General Administration                      eligible for equitable relief under 7 CFR
                                                (c) If NRCS determines that a                         § 1470.30 Fair treatment of tenants and               part 635. The financial or technical
                                             participant is in violation of the contract              sharecroppers.                                        liability for any action by a participant
                                             terms or documents incorporated                                                                                that was taken based on the advice of a
                                                                                                        Payments received under this part
                                             therein, NRCS shall give the participant                                                                       Technical Service Provider will remain
                                                                                                      must be divided in the manner specified
                                             a period of time, as determined by                                                                             with the Technical Service Provider and
                                                                                                      in the applicable contract. NRCS will
                                             NRCS, to correct the violation and                                                                             will not be assumed by NRCS.
                                                                                                      ensure that tenants and sharecroppers
                                             comply with the contract terms and                                                                                (b) If a participant has been found in
                                                                                                      who would have an interest in acreage
                                             attachments thereto. If a participant                                                                          violation of a provision of the
                                                                                                      being offered receive treatment which
                                             continues in violation, NRCS may                                                                               conservation stewardship contract or
                                                                                                      NRCS deems to be equitable, as
                                             terminate the CSP contract in                                                                                  any document incorporated by reference
                                                                                                      determined by the Chief. NRCS may
                                             accordance with paragraph (e) of this                                                                          through failure to comply fully with that
                                                                                                      refuse to enter into a contract when
                                             section.                                                                                                       provision, the participant may be
                                                                                                      there is a disagreement among joint
                                                (d) Notwithstanding the provisions of                                                                       eligible for equitable relief under 7 CFR
                                                                                                      applicants seeking enrollment as to an
                                             paragraph (c) of this section, a contract                                                                      part 635.
                                                                                                      applicant’s eligibility to participate in
                                             termination shall be effective
                                                                                                      the contract as a tenant.                             § 1470.35    Offsets and assignments.
                                             immediately upon a determination by
                                             NRCS that the participant:                               § 1470.31    Appeals.                                   (a) Any payment or portion thereof
                                                (1) Has submitted false information or                  A participant may obtain                            due any participant under this part shall
                                             filed a false claim;                                     administrative review of an adverse                   be allowed without regard to any claim
                                                (2) Engaged in any act, scheme, or                    decision under this part in accordance                or lien in favor of any creditor, except
                                             device for which a finding of                            with 7 CFR parts 11 and 614.                          agencies of the United States
                                             ineligibility for payments is permitted                  Determinations in matters of general                  Government. The regulations governing
                                             under the provisions of § 1470.36; or                    applicability, such as payment rates,                 offsets and withholdings found at 7 CFR
                                                (3) Engaged in actions that are                       payment limits, the designation of                    part 1403 shall be applicable to contract
                                             deemed to be sufficiently purposeful or                  identified priority resource concerns,                payments.
                                             negligent to warrant a termination                       and eligible conservation activities are                (b) Any participant entitled to any
                                             without delay.                                           not subject to appeal.                                payment may assign any payments in
                                                (e) If NRCS terminates a contract, the                                                                      accordance with regulations governing
                                             participant will forfeit all rights to                   § 1470.32 Compliance with regulatory                  assignment of payment found at 7 CFR
                                             future payments under the contract, pay                  measures.
                                                                                                                                                            part 1404.
                                             liquidated damages, and refund all or                      Participants shall be responsible for
                                             part of the payments received, plus                      obtaining the authorities, rights,                    § 1470.36 Misrepresentation and scheme
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                                             interest. Participants violating CSP                     easements, permits, or other approvals                or device.
                                             contracts may be determined ineligible                   or legal compliance necessary for the                   (a) If NRCS determines that an
                                             for future NRCS-administered                             implementation, operation, and                        applicant intentionally misrepresented
                                             conservation program funding.                            maintenance associated with the                       any fact affecting a CSP determination,
                                                (1) NRCS may require a participant to                 conservation stewardship plan.                        the application will be cancelled
                                             provide only a partial refund of the                     Participants shall be responsible for                 immediately.


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                   37519

                                                (b) A participant who is determined to                  Signed this 21st day of July 2009, in               with the chief election officers of the
                                             have erroneously represented any fact                    Washington, DC.                                       States, to develop a mail voter
                                             affecting a program determination made                   Dave White,                                           registration application form for
                                             in accordance with this part shall not be                Vice President, Commodity Credit                      elections to Federal office, and to
                                             entitled to contract payments and must                   Corporation and Chief, Natural Resources              submit to Congress no later than June 30
                                             refund to NRCS all payments, plus                        Conservation Service.                                 of each odd-numbered year (beginning
                                             interest determined in accordance with                   [FR Doc. E9–17812 Filed 7–28–09; 8:45 am]             June 30, 1995) a report that assesses the
                                             7 CFR part 1403.                                         BILLING CODE 3410–16–P                                impact of the NVRA and recommends
                                                (c) A participant shall refund to NRCS                                                                      improvements in Federal and State
                                             all payments, plus interest determined                                                                         procedures, forms, and other matters
                                             in accordance with 7 CFR part 1403,                      FEDERAL ELECTION COMMISSION                           affected by the NVRA. 42 U.S.C.
                                             received by such participant with                                                                              1973gg–7(a)(2), (a)(3) (1993). The NVRA
                                             respect to all CSP contracts if they are                 11 CFR Part 8                                         also assigned to the FEC the
                                             determined to have:                                                                                            responsibility of prescribing, in
                                                                                                      [Notice 2009–17]
                                                (1) Adopted any scheme or device                                                                            consultation with the chief election
                                             that tends to defeat the purpose of the                  ELECTION ASSISTANCE COMMISSION                        officers of the States, such regulations as
                                             program;                                                                                                       are necessary to carry out the
                                                (2) Made any fraudulent                               11 CFR Part 9428                                      aforementioned functions. 42 U.S.C.
                                             representation;                                                                                                1973gg–7(a)(1) (1993). The FEC issued
                                                (3) Adopted any scheme or device for                  Reorganization of National Voter                      regulations implementing these NVRA
                                             the purpose of depriving any tenant or                   Registration Act Regulations                          requirements on June 23, 1994.2 These
                                             sharecropper of the payments to which                                                                          regulations are all currently codified in
                                                                                                      AGENCY: Federal Election Commission;                  Part 8 of title 11, Chapter 1 of the Code
                                             such person would otherwise be
                                                                                                      Election Assistance Commission.                       of Federal Regulations (‘‘11 CFR Part
                                             entitled under the program; or
                                                (4) Misrepresented any fact affecting a               ACTION: Final rule.                                   8’’).
                                             program determination.                                                                                            Section 802 of the Help America Vote
                                                                                                      SUMMARY: The Federal Election                         Act of 2002 (‘‘HAVA’’) 3 transferred the
                                                (d) Participants determined to have                   Commission (FEC) and the Election
                                             committed actions identified in                                                                                FEC’s responsibilities under the NVRA
                                                                                                      Assistance Commission (EAC) are                       to the EAC—an independent Federal
                                             paragraph (c) of this section shall:                     jointly taking action to transfer
                                                (1) Have their interest in all CSP                                                                          agency created by HAVA4 with
                                                                                                      regulations implementing the National                 responsibilities related to various
                                             contracts terminated; and                                Voter Registration Act of 1993 (NVRA)
                                                (2) In accordance with § 1470.27(e),                                                                        aspects of Federal election
                                                                                                      from the FEC to the EAC. The Help                     administration. 42 U.S.C. 15532.5
                                             may be determined by NRCS to be                          America Vote Act of 2002 transferred
                                             ineligible for future NRCS-administered                                                                        Accordingly, in order to facilitate the
                                                                                                      the FEC’s former statutory authority                  EAC’s exercise of its statutory authority,
                                             conservation program funding.                            regarding the NVRA regulations to the                 the FEC is transferring the regulations
                                             § 1470.37 Environmental credits for                      EAC. Further information is provided in               implementing Section 9(a) (42 U.S.C.
                                             conservation improvements.                               the SUPPLEMENTARY INFORMATION that                    1973gg–7(a)) of the NVRA to the EAC.
                                                                                                      follows.
                                               NRCS believes that environmental                                                                             Transfer and Redesignation of Part 8
                                             benefits will be achieved by                             DATES:   This rule is effective August 28,
                                             implementing conservation activities                     2009.                                                   The FEC and the EAC, through this
                                             funded through CSP. These                                FOR FURTHER INFORMATION CONTACT:              Ms.     joint final rule, are removing the
                                             environmental benefits may result in                     Tamar Nedzar, Attorney, Election                      regulations in 11 CFR part 8 and
                                             opportunities for the program                            Assistance Commission, 1225 New York                  simultaneously recodifying them in
                                             participant to sell environmental                        Avenue, NW., Suite 1100, Washington,                  Chapter II of Title 11, which houses
                                             credits. These environmental credits                     DC 20005, (202) 566–3100 or (866) 747–                regulations created and administered by
                                             must be compatible with the purposes                     1471; or Mr. Robert M. Knop, Assistant                the EAC. Part 8 is simultaneously
                                             of the contract. NRCS asserts no direct                  General Counsel, or Mr. Joshua S.                     redesignated as Part 9428. Accordingly,
                                             or indirect interest on these credits.                   Blume, Attorney, Federal Election                     11 CFR 8.1 through 8.7 are redesignated
                                             However, NRCS retains the authority to                   Commission, 999 E Street, NW.,                        as new 11 CFR 9428.1 through 9428.7.
                                             ensure that operation and maintenance                    Washington, DC 20463, (202) 694–1650                  This is illustrated in a table below.
                                             (O&M) requirements for CSP-funded                        or (800) 424–9530.                                      2 59 FR 32323 (June 23, 1994).
                                             improvements are met, consistent with                    SUPPLEMENTARY INFORMATION:                              3 Pub. L. 107–252, 116 Stat. 1726, 42 U.S.C. 15532
                                             §§ 1470.21 and 1470.23. Where actions                                                                          (2002).
                                             may impact the land and conservation                     Background                                              4 42 U.S.C. 15321.
                                             activities under a CSP contract, NRCS                      The National Voter Registration Act of                5 ‘‘There are transferred to the Election Assistance

                                             will at the request of the participant,                  1993 (‘‘NVRA’’) 1 required the Federal                Commission established under section 201 all
                                             assist with the development of an O&M                                                                          functions which the Federal Election Commission
                                                                                                      Election Commission, in consultation                  exercised under section 9(a) of the National Voter
                                             compatibility assessment prior to the                                                                          Registration Act of 1993 before the date of the
                                             participant entering into any credit                       1 Pub. L. 103–31, 107 Stat. 77, 42 U.S.C. 1973gg–   enactment of this Act.’’ HAVA was enacted on
                                             agreement.                                               1 et seq. (1993).                                     October 29, 2002.
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                                             37520                   Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                                                                                                                                                                                                                          New Part
                                                           Part 8                                                                                               Heading                                                                                    9428

                                                                                                                                 Subpart A—General Provisions

                                             § 8.1 .................................   Purpose & scope .........................................................................................................................................           § 9428.1

                                             § 8.2 .................................   Definitions ....................................................................................................................................................    § 9428.2

                                                                                                                  Subpart B—National Mail Voter Registration Form

                                             § 8.3 .................................   General information .....................................................................................................................................           § 9428.3

                                             § 8.4 .................................   Contents ......................................................................................................................................................     § 9428.4
                                             § 8.5 .................................   Format .........................................................................................................................................................    § 9428.5
                                             § 8.6 .................................   Chief state election official ..........................................................................................................................            § 9428.6

                                                                                                                        Subpart C—Recordkeeping and Reporting

                                             § 8.7 .................................   Contents of reports from the states .............................................................................................................                   § 9428.7



                                                The FEC and EAC are also making                                        Transmittal of Final Rule to Congress                                       List of Subjects
                                             conforming changes to the rules to                                          Under the Congressional Review of                                         11 CFR Part 8 and 11 CFR Part 9428
                                             replace references to rules in Part 8 with                                Agency Rulemaking Act, 5 U.S.C.
                                             references to corresponding rules in Part                                 801(a)(1), agencies must submit final                                         Elections, reporting and
                                             9428, and to replace references to the                                    rules to the Speaker of the House of                                        recordkeeping requirements.
                                             ‘‘Federal Election Commission’’ with                                      Representatives and the President of the
                                                                                                                                                                                                   ■  For the reasons discussed in the
                                             references to the ‘‘Election Assistance                                   Senate before they take effect. The final
                                                                                                                                                                                                   preamble, the Federal Election
                                             Commission.’’ The rule does not make                                      rule that follows was transmitted to
                                                                                                                                                                                                   Commission and the Election Assistance
                                             any substantive changes to the new Part                                   Congress on July 24, 2009.
                                                                                                                                                                                                   Commission amend chapters I and II of
                                             9428 regulations. The EAC may exercise                                    Certification of No Effect Pursuant to 5                                    title 11 of the Code of Federal
                                             its rulemaking authority to make                                          U.S.C. 605(b) (Regulatory Flexibility                                       Regulations as follows:
                                             substantive and technical changes to                                      Act)
                                             these rules in the future.
                                                                                                                          Because no notice of proposed
                                             Administrative Procedure Act                                              rulemaking is required for this rule
                                                                                                                       under the Administrative Procedure Act                                      TITLE 11—FEDERAL ELECTIONS
                                                The FEC and the EAC find that good                                     (5 U.S.C. 553), the provisions of the                                       CHAPTER I—FEDERAL ELECTION
                                             cause exists for adopting this rule as a                                  Regulatory Flexibility Act (5 U.S.C. 601                                    COMMISSION
                                             final rule and without public notice and                                  et seq.) do not apply. See 5 U.S.C.
                                             comment under 5 U.S.C. 553(b) because                                     604(a).                                                                     PART 8—[REDESIGNATED AS PART
                                             this rule simply relocates and                                                                                                                        9428]
                                                                                                                       Paperwork Reduction Act
                                             redesignates the regulations in 11 CFR
                                             part 8, while making only minor                                              The provisions of the Paperwork                                          ■ 1. Transfer 11 CFR Part 8 from
                                             conforming technical changes and no                                       Reduction Act of 1995 (PRA), Public                                         Chapter I to Chapter II and redesignate
                                             substantive changes to those                                              Law 104–13, 44 U.S.C. chapter 35, and                                       as 11 CFR part 9428.
                                             regulations. The rule reflects the transfer                               its implementing regulations at 5 CFR
                                                                                                                                                                                                   CHAPTER II—ELECTION ASSISTANCE
                                             of functions contemplated by the Help                                     part 1320, require that an agency subject
                                                                                                                                                                                                   COMMISSION
                                                                                                                       to PRA submit to OMB for approval
                                             America Vote Act of 2002. Accordingly,
                                                                                                                       information collection and                                                  PART 9428—NATIONAL VOTER
                                             public notice and comment is
                                                                                                                       recordkeeping requirements associated                                       REGISTRATION ACT (42 U.S.C.
                                             unnecessary. 5 U.S.C. 553(b)(B).6                                         with agency actions. The FEC is
                                             Further, because the transfer of the                                                                                                                  1973gg–1 et seq.)
                                                                                                                       statutorily exempted from the
                                             regulations is vital to the EAC’s ability                                 provisions of the PRA while the EAC is
                                             to function in an area of core                                                                                                                        ■ 2. The authority citation for the newly
                                                                                                                       not. Consequently, the regulations
                                             responsibility assigned by Congress, the                                                                                                              redesignated 11 CFR part 9428 is
                                                                                                                       currently at 11 CFR part 8 do not have
                                             additional delay that would be incurred                                                                                                               revised to read as follows:
                                                                                                                       an associated OMB control number;
                                             by resorting to notice and comment                                        whereas the transferred regulations at 11                                     Authority: 42 U.S.C. 1973gg–1 et seq.,
                                             procedures would be contrary to the                                       CFR part 9428 are required to have an                                       15532
                                             public interest. 5 U.S.C. 553(b)(B). See,                                 associated OMB control number.                                              §§ 9428.3, 9428.4, 9428.5 and 9428.7
                                             e.g. National Nutritional Foods Assoc. v.                                 Accordingly, concurrent with this joint                                     [Amended]
                                             Kennedy, 572 F.2d 377, 384–85 (2nd                                        rulemaking activity, the EAC will
                                             Cir. 1978), quoting Senate Report, No.                                    independently publish a separate PRA                                        ■ 3. Amend the newly redesignated Part
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                                             752, 79th Cong. 1st Sess. (1945).                                         notice seeking emergency clearance.                                         9428 as follows:




                                               6 Should the EAC propose substantive changes to                         provide notice and an opportunity to comment
                                             these regulations on future occasions, it will                            pursuant to the Administrative Procedure Act.



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                                                                   Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                                           37521

                                                                Amend                                                         By removing the reference to                                                     And adding in its place

                                             § 9428.3(a) .....................................   11 CFR 8.4 ..........................................................................................   11 CFR 9428.4.
                                             § 9428.4(a)(6)(ii) .............................    11 CFR 8.6(c) ......................................................................................    11 CFR 9428.6(c).
                                             § 9428.5(a) .....................................   ‘‘Federal Election Commission’s’’ ........................................................              ‘‘Commission’s’’.
                                             § 9428.5(b) .....................................   11 CFR 8.4(c) ......................................................................................    11 CFR 9428.4(c).
                                             § 9428.5(f)(2) ..................................   11 CFR 8.4(b)(1), (6), and (7) .............................................................            11 CFR 9428.4(b)(1), (6), and (7).
                                             § 9428.5(f)(2) ..................................   11 CFR 8.4(b)(2) ..................................................................................     11 CFR 9428.4(b)(2).
                                             § 9428.6(b) .....................................   11 CFR 8.4(a)(2) ..................................................................................     11 CFR 9428.4(a)(2).
                                             § 9428.7(a) .....................................   ‘‘Federal Election Commission, 999 E Street, NW., Washington, DC                                        ‘‘Election Assistance Commission,
                                                                                                    20463.’’.                                                                                               1225 New York Avenue, NW.,
                                                                                                                                                                                                            Washington, DC 20005.’’.



                                               On behalf of the Commission.                                       We are issuing this AD to require                                       quantity limitation for operation of the
                                             Steven T. Walther,                                                   actions to correct the unsafe condition                                 fuel booster pump, inspecting the fuel
                                             Chairman, Federal Election Commission.                               on these products.                                                      booster pump electrical harness of the
                                             Gineen B. Beach,                                                     DATES: This AD becomes effective                                        left- and right-hand fuel tanks for
                                             Chair, Election Assistance Commission.                               September 2, 2009.                                                      damage, replacing any fuel booster
                                                                                                                    The Director of the Federal Register                                  pump assembly having a damaged
                                             [FR Doc. E9–18031 Filed 7–28–09; 8:45 am]
                                                                                                                  approved the incorporation by reference                                 electrical harness, installing clamps on
                                             BILLING CODE 6820–KF–P
                                                                                                                  of a certain publication listed in this AD                              the tank structure, and installing tie
                                                                                                                  as of September 2, 2009.                                                down straps for the fuel booster pump
                                                                                                                                                                                          electrical harness. You may obtain
                                             DEPARTMENT OF TRANSPORTATION                                         ADDRESSES: You may examine the AD
                                                                                                                                                                                          further information by examining the
                                                                                                                  docket on the Internet at http://
                                                                                                                                                                                          MCAI in the AD docket.
                                             Federal Aviation Administration                                      www.regulations.gov or in person at the
                                                                                                                  U.S. Department of Transportation,                                      Changes to the NPRM
                                             14 CFR Part 39                                                       Docket Operations, M–30, West                                              We have clarified the references to the
                                                                                                                  Building Ground Floor, Room W12–140,                                    fuel booster pump by adding
                                             [Docket No. FAA–2008–1005; Directorate                               1200 New Jersey Avenue, SE.,
                                             Identifier 2008–NM–119–AD; Amendment                                                                                                         ‘‘assembly’’ where applicable in the
                                             39–15981; AD 2009–15–18]
                                                                                                                  Washington, DC.                                                         paragraph immediately above this
                                                                                                                  FOR FURTHER INFORMATION CONTACT:                                        paragraph, and in paragraphs (e) and
                                             RIN 2120–AA64                                                        Sanjay Ralhan, Aerospace Engineer,                                      (f)(3)(i) of the AD.
                                                                                                                  International Branch, ANM–116,
                                             Airworthiness Directives; Empresa                                                                                                            Comments
                                                                                                                  Transport Airplane Directorate, FAA,
                                             Brasileira de Aeronautica S.A.                                       1601 Lind Avenue, SW., Renton,                                            We gave the public the opportunity to
                                             (EMBRAER) Model EMB–120, –120ER,                                     Washington 98057–3356; telephone                                        participate in developing this AD. We
                                             –120FC, –120QC, and –120RT                                           (425) 227–1405; fax (425) 227–1149.                                     considered the comment received.
                                             Airplanes
                                                                                                                  SUPPLEMENTARY INFORMATION:                                              Request To Remove Fuel Restriction for
                                             AGENCY:  Federal Aviation                                                                                                                    Certain Airplanes
                                                                                                                  Discussion
                                             Administration (FAA), Department of
                                                                                                                                                                                             The manufacturer, Embraer, agrees
                                             Transportation (DOT).                                                  We issued a notice of proposed
                                                                                                                                                                                          with the main concern for issuing the
                                             ACTION: Final rule.                                                  rulemaking (NPRM) to amend 14 CFR
                                                                                                                                                                                          AD, and understands that the addressed
                                                                                                                  part 39 to include an AD that would
                                                                                                                                                                                          unsafe condition does exist. However,
                                             SUMMARY: We are adopting a new                                       apply to the specified products. That
                                                                                                                                                                                          Embraer requests that operators who
                                             airworthiness directive (AD) for the                                 NPRM was published in the Federal
                                                                                                                                                                                          have inspected for and replaced
                                             products listed above. This AD results                               Register on October 7, 2008 (73 FR
                                                                                                                                                                                          damaged wires inside the fuel tanks be
                                             from mandatory continuing                                            58507). That NPRM proposed to correct
                                                                                                                                                                                          excluded from the minimum
                                             airworthiness information (MCAI)                                     an unsafe condition for the specified                                   requirement of 300 kg of fuel in each
                                             originated by an aviation authority of                               products. The MCAI states:                                              tank. Embraer requests that the AD
                                             another country to identify and correct                                It was found one occurrence of a fuel                                 allow operators that have already
                                             an unsafe condition on an aviation                                   booster pump circuit br[e]aker opening                                  inspected their airplanes, and are flying
                                             product. The MCAI describes the unsafe                               during an engine maintenance servicing. An                              under a safe condition, to fly without
                                             condition as:                                                        inspection inside the fuel tank revealed the                            the restriction of 300 kg of fuel in each
                                                                                                                  fuel booster pump[’]s electrical harness
                                               It was found one occurrence of a fuel                                                                                                      tank for at least 2,000 flight hours or 12
                                                                                                                  chafing against its body, causing the loss of
                                             booster pump circuit br[e]aker opening                                                                                                       months.
                                                                                                                  the electrical wiring protection and resulting
                                             during an engine maintenance servicing. An                                                                                                      Embraer recommends adding the
                                                                                                                  in a short circuit. Further in-tank inspections
                                             inspection inside the fuel tank revealed the                                                                                                 following paragraph to the ‘‘Actions and
                                                                                                                  have showed other fuel booster pump
                                             fuel booster pump[’]s electrical harness                                                                                                     Compliance’’ section of the proposed
                                                                                                                  electrical harnesses chafing either with the
                                             chafing against its body, causing the loss of
                                             the electrical wiring protection and resulting                       pump body and/or with adjacent fuel lines,                              AD: ‘‘Aircraft that have been inspected
                                             in a short circuit. Further in-tank inspections                      causing damage to the harness protective                                in accordance with paragraph (f)(3)(i) of
                                                                                                                  layers and resulting * * * [in a] possible                              this AD, prior to the effective date of
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                                             have showed other fuel booster pump
                                                                                                                  ignition source inside the fuel tank.                                   this AD, are exempt from the limitations
                                             electrical harnesses chafing either with the
                                             pump body and/or with adjacent fuel lines,                           *     *    *     *     *                                                imposed by paragraphs (f)(1) and (f)(2)
                                             causing damage to the harness protective                             The corrective actions include revising                                 for a period of 12 calendar months or
                                             layers and resulting * * * [in a] possible                           the Limitations section of the airplane                                 2,000 flight hours from the time of
                                             ignition source inside the fuel tank.                                flight manual to include a minimum                                      inspection, whichever occurs first.’’
                                             *       *        *        *        *                                 fuel quantity, adding a minimum fuel                                    Embraer bases this request on


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                                             37522             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             inspections of 28 airplanes where                          We might also have required different                 3. Will not have a significant
                                             damage was found only on the first                       actions in this AD from those in the                  economic impact, positive or negative,
                                             layer of protection of the pumps’ wiring,                MCAI in order to follow our FAA                       on a substantial number of small entities
                                             and on service experience showing that                   policies. Any such differences are                    under the criteria of the Regulatory
                                             very few fuel pumps with chafed wiring                   highlighted in a NOTE within the AD.                  Flexibility Act.
                                             have been found on airplanes with more                                                                           We prepared a regulatory evaluation
                                             than 20,000 flight hours and 18 years of                 Costs of Compliance
                                                                                                                                                            of the estimated costs to comply with
                                             operation.                                                  We estimate that this AD will affect               this AD and placed it in the AD docket.
                                                We disagree with Embraer’s request to                 110 products of U.S. registry. We also
                                             remove the fuel quantity restriction.                    estimate that it will take about 8 work-              Examining the AD Docket
                                             Paragraph (f)(4) of this AD specifies that               hours per product to comply with the                    You may examine the AD docket on
                                             the limitations imposed by paragraphs                    basic requirements of this AD. The                    the Internet at http://
                                             (f)(1) and (f)(2) of this AD are no longer               average labor rate is $80 per work-hour.              www.regulations.gov; or in person at the
                                             required only after complying with both                  Required parts will cost about $269 per               Docket Operations office between 9 a.m.
                                             the inspection specified in paragraph                    product. Where the service information                and 5 p.m., Monday through Friday,
                                             (f)(3)(i) of this AD and the installation                lists required parts costs that are                   except Federal holidays. The AD docket
                                             specified in paragraph (f)(3)(ii) of this                covered under warranty, we have                       contains the NPRM, the regulatory
                                             AD (both actions must be done in                         assumed that there will be no charge for              evaluation, any comments received, and
                                             accordance with Embraer Service                          these parts. As we do not control                     other information. The street address for
                                             Bulletin 120–28–0016, dated January 9,                   warranty coverage for affected parties,               the Docket Operations office (telephone
                                             2008).                                                   some parties may incur costs higher                   (800) 647–5527) is in the ADDRESSES
                                                                    ˆ
                                                We contacted Agencia Nacional de                      than estimated here. Based on these                   section. Comments will be available in
                                                   ¸˜
                                             Aviacao Civil (ANAC), the aviation                       figures, we estimate the cost of this AD              the AD docket shortly after receipt.
                                             authority for Brazil, which issued the                   to the U.S. operators to be $99,990, or
                                             Brazilian Airworthiness Directive 2008–                                                                        List of Subjects in 14 CFR Part 39
                                                                                                      $909 per product.
                                             05–01, effective June 13, 2008,                                                                                  Air transportation, Aircraft, Aviation
                                             referenced in the NPRM. We agree with                    Authority for This Rulemaking
                                                                                                                                                            safety, Incorporation by reference,
                                             ANAC that the unsafe condition can                          Title 49 of the United States Code                 Safety.
                                             continue to exist until Embraer Service                  specifies the FAA’s authority to issue
                                             Bulletin 120–28–0016, dated January 9,                                                                         Adoption of the Amendment
                                                                                                      rules on aviation safety. Subtitle I,
                                             2008, has been accomplished, including                   section 106, describes the authority of               ■ Accordingly, under the authority
                                             installing the clamps in accordance with                 the FAA Administrator. ‘‘Subtitle VII:                delegated to me by the Administrator,
                                             paragraph (f)(3)(ii) of this AD. Therefore,              Aviation Programs,’’ describes in more                the FAA amends 14 CFR part 39 as
                                             even if the inspection has been                          detail the scope of the Agency’s                      follows:
                                             accomplished in accordance with                          authority.
                                             paragraph (f)(3)(i) of this AD, the                         We are issuing this rulemaking under               PART 39—AIRWORTHINESS
                                             limitations must remain in effect until                  the authority described in ‘‘Subtitle VII,            DIRECTIVES
                                             the installation required by paragraph                   Part A, Subpart III, Section 44701:
                                             (f)(3)(ii) of this AD is also done.                                                                            ■ 1. The authority citation for part 39
                                                                                                      General requirements.’’ Under that
                                             However, under the provisions of                                                                               continues to read as follows:
                                                                                                      section, Congress charges the FAA with
                                             paragraph (g)(1) of this AD, we will                     promoting safe flight of civil aircraft in                Authority: 49 U.S.C. 106(g), 40113, 44701.
                                             consider requests for approval of an                     air commerce by prescribing regulations
                                             alternative method of compliance if                                                                            § 39.13   [Amended]
                                                                                                      for practices, methods, and procedures
                                             sufficient data are submitted to                         the Administrator finds necessary for                 ■ 2. The FAA amends § 39.13 by adding
                                             substantiate that the method would                       safety in air commerce. This regulation               the following new AD:
                                             provide an acceptable level of safety.                   is within the scope of that authority
                                             We have not changed the AD in this                                                                             2009–15–18 Empresa Brasileira de
                                                                                                      because it addresses an unsafe condition                  Aeronautica S.A. (EMBRAER):
                                             regard.                                                  that is likely to exist or develop on                     Amendment 39–15981. Docket No.
                                             Conclusion                                               products identified in this rulemaking                    FAA–2008–1005; Directorate Identifier
                                                                                                      action.                                                   2008–NM–119–AD.
                                               We reviewed the available data,
                                             including the comment received, and                      Regulatory Findings                                   Effective Date
                                             determined that air safety and the                                                                               (a) This airworthiness directive (AD)
                                             public interest require adopting the AD                    We determined that this AD will not                 becomes effective September 2, 2009.
                                             as proposed.                                             have federalism implications under
                                                                                                      Executive Order 13132. This AD will                   Affected ADs
                                             Differences Between This AD and the                      not have a substantial direct effect on                 (b) None.
                                             MCAI or Service Information                              the States, on the relationship between               Applicability
                                               We have reviewed the MCAI and                          the national government and the States,
                                                                                                                                                              (c) This AD applies to EMBRAER Model
                                             related service information and, in                      or on the distribution of power and                   EMB–120, –120ER, –120FC, –120QC, and
                                             general, agree with their substance. But                 responsibilities among the various                    –120RT airplanes, certificated in any
                                             we might have found it necessary to use                  levels of government.                                 category, serial numbers 120001 to 120359.
                                             different words from those in the MCAI                     For the reasons discussed above, I
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                                                                                                                                                            Subject
                                             to ensure the AD is clear for U.S.                       certify this AD:
                                             operators and is enforceable. In making                    1. Is not a ‘‘significant regulatory                  (d) Air Transport Association (ATA) of
                                                                                                                                                            America Code 28: Fuel.
                                             these changes, we do not intend to differ                action’’ under Executive Order 12866;
                                             substantively from the information                         2. Is not a ‘‘significant rule’’ under the          Reason
                                             provided in the MCAI and related                         DOT Regulatory Policies and Procedures                  (e) The mandatory continuing
                                             service information.                                     (44 FR 11034, February 26, 1979); and                 airworthiness information (MCAI) states:



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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                              37523

                                               It was found one occurrence of a fuel                     (4) After complying with the actions in              (3) You may review copies of the service
                                             booster pump circuit br[e]aker opening                   paragraphs (f)(3)(i) and (f)(3)(ii) of this AD,       information at the FAA, Transport Airplane
                                             during an engine maintenance servicing. An               the limitations imposed by paragraphs (f)(1)          Directorate, 1601 Lind Avenue, SW., Renton,
                                             inspection inside the fuel tank revealed the             and (f)(2) of this AD are no longer required,         Washington. For information on the
                                             fuel booster pump[’]s electrical harness                 and the AFM revision required by paragraph            availability of this material at the FAA, call
                                             chafing against its body, causing the loss of            (f)(1) of this AD may be removed from the             425–227–1221 or 425–227–1152.
                                             the electrical wiring protection and resulting           AFM.                                                    (4) You may also review copies of the
                                             in a short circuit. Further in-tank inspections                                                                service information that is incorporated by
                                                                                                      FAA AD Differences
                                             have showed other fuel booster pump                                                                            reference at the National Archives and
                                             electrical harnesses chafing either with the               Note: This AD differs from the MCAI and/            Records Administration (NARA). For
                                             pump body and/or with adjacent fuel lines,               or service information as follows: No                 information on the availability of this
                                             causing damage to the harness protective                 differences.                                          material at NARA, call 202–741–6030, or go
                                             layers and resulting * * * [in a] possible                                                                     to: http://www.archives.gov/federal_register/
                                             ignition source inside the fuel tank.                    Other FAA AD Provisions                               code_of_federal_regulations/
                                             *      *     *       *       *                              (g) The following provisions also apply to         ibr_locations.html.
                                             The corrective actions include revising the              this AD:                                                Issued in Renton, Washington, on July 13,
                                             Limitations section of the airplane flight                  (1) Alternative Methods of Compliance              2009.
                                             manual (AFM) to include a minimum fuel                   (AMOCs): The Manager, International
                                                                                                      Branch, ANM–116, Transport Airplane                   Ali Bahrami,
                                             quantity, adding a minimum fuel quantity
                                                                                                      Directorate, FAA, has the authority to                Manager, Transport Airplane Directorate,
                                             limitation for operation of the fuel booster
                                                                                                      approve AMOCs for this AD, if requested               Aircraft Certification Service.
                                             pump, inspecting the fuel booster pump
                                             electrical harness of the left- and right-hand           using the procedures found in 14 CFR 39.19.           [FR Doc. E9–17534 Filed 7–28–09; 8:45 am]
                                             fuel tanks for damage, replacing any fuel                Send information to ATTN: Sanjay Ralhan,              BILLING CODE 4910–13–P
                                             booster pump assembly having a damaged                   Aerospace Engineer, International Branch,
                                             electrical harness, installing clamps on the             ANM–116, Transport Airplane Directorate,
                                                                                                      FAA, 1601 Lind Avenue, SW., Renton,
                                             tank structure, and installing tie down straps                                                                 DEPARTMENT OF TRANSPORTATION
                                             for the fuel booster pump electrical harness.            Washington 98057–3356; telephone (425)
                                                                                                      227–1405; fax (425) 227–1149. Before using
                                                                                                                                                            Federal Aviation Administration
                                             Actions and Compliance                                   any approved AMOC on any airplane to
                                                (f) Unless already done, do the following             which the AMOC applies, notify your
                                                                                                      appropriate principal inspector (PI) in the           14 CFR Part 39
                                             actions.
                                                (1) Within 30 days after the effective date           FAA Flight Standards District Office (FSDO),          [Docket No. FAA–2009–0211; Directorate
                                             of this AD, insert in the Limitations section            or lacking a PI, your local FSDO.                     Identifier 2008–NM–028–AD; Amendment
                                             of the AFM a copy of this AD or the                         (2) Airworthy Product: For any requirement         39–15980 AD 2009–15–17]
                                             following statement:                                     in this AD to obtain corrective actions from
                                                                                                      a manufacturer or other source, use these             RIN 2120–AA64
                                                The minimum fuel quantity inside each
                                                                                                      actions if they are FAA-approved. Corrective
                                             tank must be 300 kg (662 pounds) or 370                                                                        Airworthiness Directives; Airbus Model
                                                                                                      actions are considered FAA-approved if they
                                             liters (97.75 gallons).
                                                                                                      are approved by the State of Design Authority         A330–200, A330–300, A340–200, and
                                                (2) As of the effective date of this AD, any          (or their delegated agent). You are required          A340–300 Series Airplanes
                                             fuel tank defueling or other maintenance                 to assure the product is airworthy before it
                                             action which demands use of the fuel booster             is returned to service.                               AGENCY: Federal Aviation
                                             pumps is limited to a minimum fuel quantity                 (3) Reporting Requirements: For any                Administration (FAA), Department of
                                             of no less than 300 kilograms (662 pounds)               reporting requirement in this AD, under the           Transportation (DOT).
                                             or 370 liters (97.75 gallons) inside the                 provisions of the Paperwork Reduction Act,
                                             respective tank.                                                                                               ACTION: Final rule.
                                                                                                      the Office of Management and Budget (OMB)
                                                (3) Within 4,000 flight hours, or 24 months,          has approved the information collection               SUMMARY: We are adopting a new
                                             or at the next scheduled or unscheduled fuel             requirements and has assigned OMB Control
                                             tank opening after the effective date of this                                                                  airworthiness directive (AD) for the
                                                                                                      Number 2120–0056.
                                             AD, whichever occurs first, do the following                                                                   products listed above. This AD results
                                             actions:                                                 Related Information                                   from mandatory continuing
                                                (i) Inspect the fuel booster pump electrical            (h) Refer to MCAI Brazilian Airworthiness           airworthiness information (MCAI)
                                             harness of the left- and right-hand fuel tanks           Directive 2008–05–01, effective June 13,              originated by an aviation authority of
                                             for damage on its external protection, in                2008; and Embraer Service Bulletin 120–28–            another country to identify and correct
                                             accordance with paragraph 3.F. (Part I) of the           0016, dated January 9, 2008; for related              an unsafe condition on an aviation
                                             Accomplishment Instructions of Embraer                   information.                                          product. The MCAI describes the unsafe
                                             Service Bulletin 120–28–0016, dated January
                                             9, 2008. If any damaged fuel booster pump                Material Incorporated by Reference                    condition as:
                                             electrical harness is found, before further                (i) You must use Embraer Service Bulletin           *     *    *     *     *
                                             flight, replace the affected fuel booster pump           120–28–0016, dated January 9, 2008, to do                [B]ogie beam internal paint has been
                                             assembly with another fuel booster pump                  the actions required by this AD, unless the           degraded, leading to a loss of cadmium
                                             assembly bearing the same part number, in                AD specifies otherwise.                               plating and thus allowing development of
                                             accordance with the Accomplishment                         (1) The Director of the Federal Register            corrosion pitting.
                                             Instructions of Embraer Service Bulletin 120–            approved the incorporation by reference of               If not corrected, this situation under higher
                                             28–0016, dated January 9, 2008.                          this service information under 5 U.S.C.               speed could result in the aircraft departing
                                                (ii) Install clamps and tie down straps on            552(a) and 1 CFR part 51.                             the runway or in the bogie [beam] detaching
                                             the tank structure and attach each fuel                    (2) For service information identified in           from the aircraft or [main landing] gear
                                             booster pump electrical harness to the left-             this AD, contact Empresa Brasileira de                collapses, which would constitute an unsafe
                                             and right-hand fuel tanks to avoid eventual              Aeronautica S.A. (EMBRAER), Technical                 condition.
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                                             chafing against the pump body, adjacent fuel             Publications Section (PC 060), Av. Brigadeiro         *     *     *    *     *
                                             lines, structure or any other part, and to               Faria Lima, 2170—Putim—12227–901 Sao     ˜            We are issuing this AD to require
                                             prevent damage to the harness protective                 Jose dos Campos—SP—BRASIL; telephone:
                                                                                                                                                            actions to correct the unsafe condition
                                             layers, in accordance with paragraph 3.G.                +55 12 3927–5852 or +55 12 3309–0732; fax:
                                             (Part II) of the Accomplishment Instructions             +55 12 3927–7546; e-mail:                             on these products.
                                             of Embraer Service Bulletin 120–28–0016,                 distrib@embraer.com.br; Internet: http://             DATES: This AD becomes effective
                                             dated January 9, 2008.                                   www.flyembraer.com.                                   September 2, 2009.


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                                             37524              Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                               The Director of the Federal Register                     leading to a loss of cadmium plating and thus                 We agree to revise paragraphs (f)(2),
                                             approved the incorporation by reference                    allowing development of corrosion pitting.                 (f)(2)(i), (f)(3), and (f)(3)(i) of this AD for
                                             of certain publications listed in this AD                     If not corrected, this situation under higher           the reason provided by the commenter.
                                                                                                        speed could result in the aircraft departing
                                             as of September 2, 2009.                                   the runway or in the bogie [beam] detaching
                                                                                                                                                                   We have replaced the phrase ‘‘French
                                             ADDRESSES:  You may examine the AD                         from the aircraft or [main landing] gear                   export certificate of airworthiness’’ with
                                             docket on the Internet at http://                          collapses, which would constitute an unsafe                ‘‘French or EASA export certificate of
                                             www.regulations.gov or in person at the                    condition.                                                 airworthiness.’’
                                                                                                           To enable early detection and repair of any
                                             U.S. Department of Transportation,                         corrosion of the internal surfaces, EASA                   Request To Revise Compliance Time
                                             Docket Operations, M–30, West                              (European Aviation Safety Agency) AD 2007–                 Specified in Paragraphs (f)(3)(i) and
                                             Building Ground Floor, Room W12–140,                       0314 required a one-time inspection on all                 (f)(3)(ii) of the NPRM
                                             1200 New Jersey Avenue, SE.,                               MLG Bogie Beams except Enhanced MLG
                                             Washington, DC.                                            Bogie Beams and the reporting of the results                  Airbus requests that we revise the
                                                                                                        to AIRBUS.                                                 compliance time specified in paragraphs
                                             FOR FURTHER INFORMATION CONTACT:                              The Revision 1 of AD 2007–0314 aimed to                 (f)(3)(i) and (f)(3)(ii) of the NPRM to
                                             Vladimir Ulyanov, Aerospace Engineer,                      clarify the compliance time of the inspection              include the additional phrase ‘‘or at the
                                             International Branch, ANM–116,                             and to extend the reporting period.                        next scheduled bogie beam overhaul,
                                             Transport Airplane Directorate, FAA,                          The present AD which supersedes the AD                  whichever occurs first.’’
                                             1601 Lind Avenue, SW., Renton,                             2007–0314R1:
                                                                                                                                                                      We disagree with revising the
                                             Washington 98057–3356; telephone                           —Takes over the AD 2007–0314R1                             compliance time, ‘‘within 18 months
                                             (425) 227–1138; fax (425) 227–1149.                           requirements and
                                                                                                        —Reduces the inspection threshold from 6 to
                                                                                                                                                                   after the effective date of this AD,’’
                                             SUPPLEMENTARY INFORMATION:                                    4.5 years due to significant findings on the            specified in paragraphs (f)(3)(i) and
                                                                                                           inspected aircraft.                                     (f)(3)(ii) of this AD to include the
                                             Discussion                                                                                                            additional phrase. The requested change
                                                                                                        Required actions include applying
                                               We issued a notice of proposed                                                                                      would shorten the compliance time for
                                                                                                        protective treatments to the bogie beam
                                             rulemaking (NPRM) to amend 14 CFR                                                                                     certain operators. In developing an
                                                                                                        and corrective actions. Corrective
                                             part 39 to include an AD that would                                                                                   appropriate compliance time, we
                                                                                                        actions include repair of any damaged
                                             apply to the specified products. That                                                                                 considered the safety implications and
                                                                                                        or corroded surfaces or surface
                                             NPRM was published in the Federal                                                                                     normal maintenance schedules for
                                                                                                        treatments, and contacting Messier-
                                             Register on March 10, 2009 (74 FR                          Dowty for repair instructions and doing                    timely accomplishment of the required
                                             10199). That NPRM proposed to correct                      the repair. You may obtain further                         actions. We determined that the
                                             an unsafe condition for the specified                      information by examining the MCAI in                       compliance time represents an
                                             products. The MCAI states:                                 the AD docket.                                             appropriate interval in which the
                                                                                                                                                                   actions required by this AD can be done,
                                               The operator of an A330 aircraft (which                  Comments                                                   in a timely manner within the fleet,
                                             has a common bogie beam with the A340)
                                                                                                          We gave the public the opportunity to                    while still maintaining an adequate
                                             has reported a fracture of the RH (right-hand)
                                             MLG (main landing gear) Bogie Beam whilst                  participate in developing this AD. We                      level of safety. Operators are always
                                             turning during low speed taxi maneuvers.                   considered the comments received.                          permitted to accomplish the
                                             The bogie [beam] fractured aft of the pivot                                                                           requirements of an AD at a time earlier
                                             point and remained attached to the sliding                 Request To Revise References to the                        than the specified compliance time. If
                                             tube by the brake torque reaction rods. After              French Export Certificate in the NPRM                      additional data are presented that would
                                             this RH bogie [beam] failure, the aircraft                    Airbus requests that we revise the                      justify a shorter compliance time, we
                                             continued for approximately 40 meters on                   phrase ‘‘French export certificate of                      might consider further rulemaking on
                                             the forks of the sliding member before                     airworthiness’’ that is specified in                       this issue. We have not revised this AD
                                             coming to rest on the taxiway without any                  paragraphs (f)(2), (f)(2)(i), (f)(3), and                  in this regard.
                                             passenger injury.
                                               The preliminary investigations revealed
                                                                                                        (f)(3)(i) of the NPRM. Airbus states that
                                                                                                                                                                   New Relevant Service Information
                                             that this event was due to corrosion pitting               there is no more ‘‘French’’ export
                                             occurring on the bore of the bogie beam.                   airworthiness certificate and states that                     Airbus and Messier-Dowty have
                                             Investigations are ongoing to determine why                it has been replaced with the EASA                         issued the service information described
                                             bogie beam internal paint has been degraded,               export airworthiness certificate.                          in the following table.

                                                                                                                NEW SERVICE INFORMATION
                                                                                                 Service Bulletin                                                              Revision                 Date

                                             Airbus Mandatory Service Bulletin A330–32–3225, including Appendix 1 .................................................                        01    October 30, 2008.
                                             Airbus Mandatory Service Bulletin A340–32–4268, including Appendix 1 .................................................                        01    October 30, 2008.
                                             Messier-Dowty Service Bulletin A33/34–32–271, including Appendixes A and B ......................................                              1    November 16, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–272, including Appendixes A, B, C, and D ...........................                                  1    September 22, 2008.



                                               We referred to earlier revisions of the
                                             service bulletins in the NPRM, as
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                                             described in the following table.

                                                                                                 SERVICE INFORMATION SPECIFIED IN THE NPRM
                                                                                                            Service Bulletin                                                                            Date

                                             Airbus Mandatory Service Bulletin A330–32–3225, including Appendix 01 ...........................................................................   November 21, 2007.



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                                                                Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                           37525

                                                                                         SERVICE INFORMATION SPECIFIED IN THE NPRM—Continued
                                                                                                             Service Bulletin                                                                             Date

                                             Airbus Mandatory Service Bulletin A340–32–4268, including Appendix 01 ...........................................................................     November 21, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–271, including Appendix A ................................................................................   September 13, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–272, including Appendixes A, B, C, and D .......................................................             November 16, 2007.



                                                The new service information does not                     any operator or increase the scope of the                   Regulatory Findings
                                             add work for airplanes on which the                         AD.
                                                                                                                                                                       We determined that this AD will not
                                             actions specified in the earlier revisions
                                                                                                         Differences Between This AD and the                         have federalism implications under
                                             of the service bulletins have been
                                                                                                         MCAI or Service Information                                 Executive Order 13132. This AD will
                                             accomplished.
                                                                                                                                                                     not have a substantial direct effect on
                                                Revision 01 of Airbus Mandatory                            We have reviewed the MCAI and                             the States, on the relationship between
                                             Service Bulletins A330–32–3225 and                          related service information and, in                         the national government and the States,
                                             A340–32–4268 revises references to                          general, agree with their substance. But                    or on the distribution of power and
                                             Messier-Dowty Service Bulletin A33/                         we might have found it necessary to use                     responsibilities among the various
                                             34–32–272. We have revised paragraphs                       different words from those in the MCAI                      levels of government.
                                             (f)(1) and (h) of this AD to refer to                       to ensure the AD is clear for U.S.
                                             Revision 01 of Airbus Mandatory                                                                                           For the reasons discussed above, I
                                                                                                         operators and is enforceable. In making                     certify this AD:
                                             Service Bulletins A330–32–3225 and                          these changes, we do not intend to differ
                                             A340–32–4268. We have also added                                                                                          1. Is not a ‘‘significant regulatory
                                                                                                         substantively from the information                          action’’ under Executive Order 12866;
                                             Airbus Mandatory Service Bulletins                          provided in the MCAI and related
                                             A330–32–3225 and A340–32–4268, both                                                                                       2. Is not a ‘‘significant rule’’ under the
                                                                                                         service information.                                        DOT Regulatory Policies and Procedures
                                             dated November 21, 2007, to paragraph
                                             (f)(6) of this AD to give credit for actions                  We might also have required different                     (44 FR 11034, February 26, 1979); and
                                             done in accordance with these service                       actions in this AD from those in the                          3. Will not have a significant
                                             bulletins before the effective date of this                 MCAI in order to follow our FAA                             economic impact, positive or negative,
                                             AD.                                                         policies. Any such differences are                          on a substantial number of small entities
                                                Revision 1 of Messier-Dowty Service                      highlighted in a NOTE within the AD.                        under the criteria of the Regulatory
                                             Bulletin A33/34–32–271 provides a new                       Costs of Compliance                                         Flexibility Act.
                                             illustration and updates the procedures.                                                                                  We prepared a regulatory evaluation
                                             We have revised paragraphs (f)(5) and                         We estimate that this AD will affect                      of the estimated costs to comply with
                                             (h) of this AD to refer to Revision 1 of                    29 products of U.S. registry. We also                       this AD and placed it in the AD docket.
                                             Messier-Dowty Service Bulletin A33/                         estimate that it will take about 22 work-
                                                                                                                                                                     Examining the AD Docket
                                             34–32–271. We have also added                               hours per product to comply with the
                                             Messier-Dowty Service Bulletin A33/                         basic requirements of this AD. The                            You may examine the AD docket on
                                             34–32–271, including Appendix A,                            average labor rate is $80 per work-hour.                    the Internet at http://
                                             dated September 13, 2007, to paragraph                      Based on these figures, we estimate the                     www.regulations.gov; or in person at the
                                             (f)(6) of this AD to give credit for actions                cost of this AD to the U.S. operators to                    Docket Operations office between 9 a.m.
                                             done in accordance with that service                        be $51,040, or $1,760 per product.                          and 5 p.m., Monday through Friday,
                                             bulletin before the effective date of this                                                                              except Federal holidays. The AD docket
                                             AD.                                                         Authority for This Rulemaking                               contains the NPRM, the regulatory
                                                Revision 1 of Messier-Dowty Service                         Title 49 of the United States Code                       evaluation, any comments received, and
                                             Bulletin A33/34–32–272 provides new                         specifies the FAA’s authority to issue                      other information. The street address for
                                             illustrations and updates the                                                                                           the Docket Operations office (telephone
                                                                                                         rules on aviation safety. Subtitle I,
                                             procedures. We have revised paragraphs                                                                                  (800) 647–5527) is in the ADDRESSES
                                                                                                         section 106, describes the authority of
                                             (f)(1)(i), (f)(1)(ii), and (h), and Note 1 of                                                                           section. Comments will be available in
                                                                                                         the FAA Administrator. ‘‘Subtitle VII:
                                             this AD to refer to Revision 1 of Messier-                                                                              the AD docket shortly after receipt.
                                                                                                         Aviation Programs,’’ describes in more
                                             Dowty Service Bulletin A33/34–32–272.                                                                                   List of Subjects in 14 CFR Part 39
                                                                                                         detail the scope of the Agency’s
                                             We have also added Messier-Dowty
                                                                                                         authority.
                                             Service Bulletin A33/34–32–272,                                                                                           Air transportation, Aircraft, Aviation
                                             including Appendixes A, B, C, and D,                           We are issuing this rulemaking under                     safety, Incorporation by reference,
                                             dated November 16, 2007, to paragraph                       the authority described in ‘‘Subtitle VII,                  Safety.
                                             (f)(6) of this AD to give credit for actions                Part A, Subpart III, Section 44701:
                                                                                                         General requirements.’’ Under that                          Adoption of the Amendment
                                             done in accordance with that service
                                             bulletin before the effective date of this                  section, Congress charges the FAA with                      ■ Accordingly, under the authority
                                             AD.                                                         promoting safe flight of civil aircraft in                  delegated to me by the Administrator,
                                                                                                         air commerce by prescribing regulations                     the FAA amends 14 CFR part 39 as
                                             Conclusion                                                  for practices, methods, and procedures                      follows:
                                               We reviewed the available data,                           the Administrator finds necessary for
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                                             including the comments received, and                        safety in air commerce. This regulation                     PART 39—AIRWORTHINESS
                                             determined that air safety and the                          is within the scope of that authority                       DIRECTIVES
                                             public interest require adopting the AD                     because it addresses an unsafe condition
                                             with the changes described previously.                      that is likely to exist or develop on                       ■ 1. The authority citation for part 39
                                             We determined that these changes will                       products identified in this rulemaking                      continues to read as follows:
                                             not increase the economic burden on                         action.                                                         Authority: 49 U.S.C. 106(g), 40113, 44701.



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                                             37526             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             § 39.13   [Amended]                                      —Reduces the inspection threshold from 6 to            the original French airworthiness certificate
                                                                                                         4.5 years due to significant findings on the        or the date of issuance of the original French
                                             ■ 2. The FAA amends § 39.13 by adding
                                                                                                         inspected aircraft.                                 or EASA export certificate of airworthiness as
                                             the following new AD:
                                                                                                      Required actions include applying protective           of the effective date of this AD: At the
                                             2009–15–17 Airbus: Amendment 39–15980.                   treatments to the bogie beam and corrective            applicable time specified in paragraph
                                                 Docket No. FAA–2009–0211; Directorate                actions. Corrective actions include repair of          (f)(3)(i), (f)(3)(ii), f)(3)(iii), (f)(3)(iv), or (f)(3)(v)
                                                 Identifier 2008–NM–028–AD.                           any damaged or corroded surfaces or surface            of this AD, do the actions required by
                                             Effective Date                                           treatments, and contacting Messier-Dowty for           paragraph (f)(1) of this AD.
                                                                                                      repair instructions and doing the repair.                 (i) For airplanes on which the bogie beam
                                               (a) This airworthiness directive (AD)
                                                                                                      Actions and Compliance                                 has not been replaced or overhauled since
                                             becomes effective September 2, 2009.
                                                                                                                                                             the date of issuance of the original French
                                             Affected ADs                                                (f) Unless already done, do the following           airworthiness certificate or the date of
                                                                                                      actions.                                               issuance of the original French or EASA
                                               (b) None.                                                 (1) At the applicable compliance time
                                                                                                                                                             export certificate of airworthiness as of the
                                             Applicability                                            specified in paragraph (f)(2) or (f)(3) of this
                                                                                                                                                             effective date of this AD: Within 18 months
                                                                                                      AD: Clean the internal bore and perform a
                                                (c) This AD applies to Airbus Model A330–                                                                    after the effective date of this AD.
                                                                                                      detailed visual inspection of internal surfaces
                                             200, A330–300, A340–200, and A340–300                                                                              (ii) For airplanes on which the bogie beam
                                                                                                      of the MLG bogie beam (right-hand and left-
                                             series airplanes; certificated in any category;                                                                 has been replaced in-service with a new
                                                                                                      hand) for any damage to the protective
                                             all certified models; all serial numbers,                                                                       bogie beam and the new bogie beam has more
                                                                                                      treatments or any corrosion, in accordance
                                             except those on which Airbus modification                                                                       than 54 months time-in-service as of the
                                                                                                      with the Accomplishment Instructions of
                                             54500 has been embodied in production or                                                                        effective date of this AD: Within 18 months
                                                                                                      Airbus Mandatory Service Bulletin A330–32–
                                             Airbus Service Bulletin A330–32–3212 has                                                                        after the effective date of this AD.
                                             been embodied in service.                                3225 or A340–32–4268, both Revision 01,
                                                                                                      both dated October 30, 2008; as applicable.               (iii) For airplanes on which the bogie beam
                                             Subject                                                     (i) If no damage and corrosion is found,            has been replaced in-service with a new
                                               (d) Air Transport Association (ATA) of                 before further flight, apply the protective            bogie beam and the new bogie beam has 54
                                             America Code 32: Landing Gear.                           treatments of the bogie beam, in accordance            months or less time-in-service as of the
                                                                                                      with the Accomplishment Instructions of                effective date of this AD: Not before 54
                                             Reason                                                   Messier-Dowty Service Bulletin A33/34–32–              months since the installation of a new bogie
                                                (e) The mandatory continuing                          272, Revision 1, including Appendixes A, B,            beam in-service before the effective date of
                                             airworthiness information (MCAI) states:                 C, and D, dated September 22, 2008.                    this AD, but no later than 72 months since
                                                The operator of an A330 aircraft (which                  (ii) If any damage or corrosion is found,           the installation of a new bogie beam in-
                                             has a common bogie beam with the A340)                   before further flight, do all applicable               service before the effective date of this AD.
                                             has reported a fracture of the RH (right-hand)           corrective actions and apply the protective               (iv) For airplanes on which the bogie beam
                                             MLG (main landing gear) Bogie Beam whilst                treatments of the bogie beam, in accordance            has been overhauled and the overhauled
                                             turning during low speed taxi maneuvers.                 with the Accomplishment Instructions of                bogie beam has more than 54 months time-
                                             The bogie [beam] fractured aft of the pivot              Messier-Dowty Service Bulletin A33/34–32–              in-service as of the effective date of this AD:
                                             point and remained attached to the sliding               272, Revision 1, including Appendixes A, B,            Within 18 months after the effective date of
                                             tube by the brake torque reaction rods. After            C, and D, dated September 22, 2008.                    this AD, or at the next scheduled bogie beam
                                             this RH bogie [beam] failure, the aircraft                  (2) For airplanes with 54 months or less            overhaul, whichever occurs first.
                                             continued for approximately 40 meters on                 time-in-service since the date of issuance of             (v) For airplanes on which the bogie beam
                                             the forks of the sliding member before                   the original French airworthiness certificate          has been overhauled and the overhauled
                                             coming to rest on the taxiway without any                or the date of issuance of the original French         bogie beam has 54 months or less time-in-
                                             passenger injury.                                        or EASA export certificate of airworthiness as         service as of the effective date of this AD: Not
                                                The preliminary investigations revealed               of the effective date of this AD: At the latest
                                                                                                                                                             before 54 months since the last overhaul of
                                             that this event was due to corrosion pitting             of the applicable times specified in
                                                                                                                                                             a bogie beam before the effective date of this
                                             occurring on the bore of the bogie beam.                 paragraphs (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of
                                                                                                                                                             AD, but no later than 72 months since the
                                             Investigations are ongoing to determine why              this AD, do the actions required by paragraph
                                                                                                                                                             last overhaul of a bogie beam before the
                                             bogie beam internal paint has been degraded,             (f)(1) of this AD.
                                                                                                                                                             effective date of this AD.
                                             leading to a loss of cadmium plating and thus               (i) Not before 54 months since the date of
                                                                                                      issuance of the original French airworthiness             (4) Within 30 days after accomplishment of
                                             allowing development of corrosion pitting.
                                                If not corrected, this situation under higher         certificate or the date of issuance of the             the inspection required by paragraph (f)(1) of
                                             speed could result in the aircraft departing             original French or EASA export certificate of          this AD or within 30 days after the effective
                                             the runway or in the bogie [beam] detaching              airworthiness, but no later than 72 months             date of this AD, whichever occurs later,
                                             from the aircraft or [main landing] gear                 since the date of issuance of the original             report the results, including no findings, to
                                             collapses, which would constitute an unsafe              French airworthiness certificate or the date of        Airbus, 1 Rond Point Maurice Bellonte,
                                             condition.                                               issuance of the original French or EASA                31707 Blagnac Cedex, France; e-mail
                                                To enable early detection and repair of any           export certificate of airworthiness.                   airworthiness.A330-A340@airbus.com.
                                             corrosion of the internal surfaces, EASA                    (ii) Not before 54 months since the                    (5) Actions accomplished in accordance
                                             (European Aviation Safety Agency) AD 2007–               installation of a new bogie beam in-service            with Messier-Dowty Service Bulletin A33/
                                             0314 required a one-time inspection on all               before the effective date of this AD, but no           34–32–271, Revision 1, including
                                             MLG Bogie Beams except Enhanced MLG                      later than 72 months since the installation of         Appendixes A and B, dated November 16,
                                             Bogie Beams and the reporting of the results             a new bogie beam in-service before the                 2007, are considered acceptable for
                                             to AIRBUS.                                               effective date of this AD.                             compliance with the corresponding
                                                The Revision 1 of AD 2007–0314 aimed to                  (iii) Not before 54 months since the last           requirements of this AD.
                                             clarify the compliance time of the inspection            overhaul of a bogie beam before the effective             (6) Actions accomplished before the
                                             and to extend the reporting period.                      date of this AD, but no later than 72 months           effective date of this AD in accordance with
                                                The present AD which supersedes the AD                since the last overhaul of a bogie beam before         the service bulletins specified in Table 1 of
                                             2007–0314R1:                                             the effective date of this AD.                         this AD are considered acceptable for
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                                             —Takes over the AD 2007–0314R1                              (3) For airplanes with more than 54 months          compliance with the corresponding
                                                requirements and                                      time-in-service since the date of issuance of          requirements of this AD.




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                                                                  Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                                      37527

                                                                                                            TABLE 1—CREDIT SERVICE INFORMATION
                                                                                                                  Service Bulletin                                                                                     Date

                                             Airbus Mandatory Service Bulletin A330–32–3225 .................................................................................................................   November 21, 2007.
                                             Airbus Mandatory Service Bulletin A340–32–4268 .................................................................................................................   November 21, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–271, including Appendix A ................................................................................                September 13, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–272, including Appendixes A, B, C, and D .......................................................                          November 16, 2007.



                                             FAA AD Differences                                                 (1) Alternative Methods of Compliance                          a manufacturer or other source, use these
                                                                                                              (AMOCs): The Manager, International                              actions if they are FAA-approved. Corrective
                                               Note 1: This AD differs from the MCAI                          Branch, ANM–116, Transport Airplane                              actions are considered FAA-approved if they
                                             and/or service information as follows: The                       Directorate, FAA, has the authority to                           are approved by the State of Design Authority
                                             MCAI specifies repair and corrective actions                     approve AMOCs for this AD, if requested                          (or their delegated agent). You are required
                                             in accordance with Airbus Mandatory                              using the procedures found in 14 CFR 39.19.                      to assure the product is airworthy before it
                                             Service Bulletin A330–32–3225 or A340–32–                        Send information to ATTN: Vladimir                               is returned to service.
                                             4268, both dated November 21, 2007;                              Ulyanov, Aerospace Engineer, International                          (3) Reporting Requirements: For any
                                             however, these Airbus service bulletins do                       Branch, ANM–116, Transport Airplane                              reporting requirement in this AD, under the
                                             not describe those actions. Paragraphs (f)(1)(i)                 Directorate, FAA, 1601 Lind Avenue, SW.,                         provisions of the Paperwork Reduction Act,
                                             and (f)(1)(ii) of this AD specify repair and                     Renton, Washington 98057–3356; telephone                         the Office of Management and Budget (OMB)
                                             corrective actions in accordance with                            (425) 227–1138; fax (425) 227–1149. Before                       has approved the information collection
                                                                                                              using any approved AMOC on any airplane                          requirements and has assigned OMB Control
                                             Messier-Dowty Service Bulletin A33/34–32–
                                                                                                              to which the AMOC applies, notify your                           Number 2120–0056.
                                             272, Revision 1, including Appendixes A, B,                      principal maintenance inspector (PMI) or
                                             C, and D, dated September 22, 2008.                              principal avionics inspector (PAI), as                           Related Information
                                                                                                              appropriate, or lacking a principal inspector,                     (h) Refer to EASA Airworthiness Directive
                                             Other FAA AD Provisions
                                                                                                              your local Flight Standards District Office.                     2008–0093, dated May 20, 2008, and the
                                               (g) The following provisions also apply to                       (2) Airworthy Product: For any requirement                     service bulletins specified in Table 2 of this
                                             this AD:                                                         in this AD to obtain corrective actions from                     AD, for related information.

                                                                                                                   TABLE 2—SERVICE INFORMATION
                                                                                                       Service Bulletin                                                                      Revision                  Date

                                             Airbus Mandatory Service Bulletin A330–32–3225, including Appendix 1 .................................................                                      01     October 30, 2008.
                                             Airbus Mandatory Service Bulletin A340–32–4268, including Appendix 1 .................................................                                      01     October 30, 2008.
                                             Messier-Dowty Service Bulletin A33/34–32–271, including Appendixes A and B ......................................                                            1     November 16, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–272, including Appendixes A, B, C, and D ...........................                                                1     September 22, 2008.



                                             Material Incorporated by Reference                               actions required by this AD, unless the AD
                                               (i) You must use the service information                       specifies otherwise.
                                             contained in Table 3 of this AD to do the

                                                                                                    TABLE 3—MATERIAL INCORPORATED BY REFERENCE
                                                                                                       Service Bulletin                                                                      Revision                  Date

                                             Airbus Mandatory Service Bulletin A330–32–3225, including Appendix 1 .................................................                                      01     October 30, 2008.
                                             Airbus Mandatory Service Bulletin A340–32–4268, including Appendix 1 .................................................                                      01     October 30, 2008.
                                             Messier-Dowty Service Bulletin A33/34–32–271, including Appendixes A and B ......................................                                            1     November 16, 2007.
                                             Messier-Dowty Service Bulletin A33/34–32–272, including Appendixes A, B, C, and D ...........................                                                1     September 22, 2008.


                                             (Pages identified as ‘‘intentionally blank’’ in                  Customer Support Center, 45360 Severn                            code_of_federal_regulations/
                                             the Messier-Dowty service bulletins                              Way, Sterling, Virginia 20166–8910;                              ibr_locations.html.
                                             identified in Table 3 of this AD are at the                      telephone 703–450–8233; fax 703–404–1621;
                                                                                                                                                                                 Issued in Renton, Washington, on July 2,
                                             revision level and date specified in Table 3                     Internet https://techpubs.services.messier-
                                             for those documents.)                                            dowty.com.                                                       2009.
                                               (1) The Director of the Federal Register                          (3) You may review copies of the service                      Ali Bahrami,
                                             approved the incorporation by reference of                       information at the FAA, Transport Airplane                       Manager, Transport Airplane Directorate,
                                             this service information under 5 U.S.C.                          Directorate, 1601 Lind Avenue, SW., Renton,                      Aircraft Certification Service.
                                             552(a) and 1 CFR part 51.                                        Washington. For information on the                               [FR Doc. E9–17539 Filed 7–28–09; 8:45 am]
                                               (2) For Airbus service information                             availability of this material at the FAA, call
                                                                                                                                                                               BILLING CODE 4910–13–P
                                             identified in this AD, contact Airbus SAS—                       425–227–1221 or 425–227–1152.
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                                             Airworthiness Office—EAL, 1 Rond Point                              (4) You may also review copies of the
                                             Maurice Bellonte, 31707 Blagnac Cedex,                           service information that is incorporated by
                                             France; fax +33 5 61 93 45 80, e-mail                            reference at the National Archives and
                                             airworthiness.A330-A340@airbus.com;                              Records Administration (NARA). For
                                             Internet http://www.airbus.com. For Messier-                     information on the availability of this
                                             Dowty service information identified in this                     material at NARA, call 202–741–6030, or go
                                             AD, contact Messier Services Americas,                           to: http://www.archives.gov/federal_register/



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                                             37528             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             DEPARTMENT OF TRANSPORTATION                             Discussion                                            public interest require adopting the AD
                                                                                                        We issued a notice of proposed                      as proposed.
                                             Federal Aviation Administration                          rulemaking (NPRM) to amend 14 CFR                     Differences Between This AD and the
                                                                                                      part 39 to include an AD that would                   MCAI or Service Information
                                             14 CFR Part 39                                           apply to the specified products. That
                                                                                                      NPRM was published in the Federal                       We have reviewed the MCAI and
                                             [Docket No. FAA–2009–0432; Directorate                                                                         related service information and, in
                                             Identifier 2008–NM–168–AD; Amendment                     Register on May 7, 2009 (74 FR 21281).
                                             39–15982; AD 2009–15–19]                                 That NPRM proposed to correct an                      general, agree with their substance. But
                                                                                                      unsafe condition for the specified                    we might have found it necessary to use
                                             RIN 2120–AA64                                            products. The MCAI states:                            different words from those in the MCAI
                                                                                                                                                            to ensure the AD is clear for U.S.
                                                                                                        BAE Systems (Operations) Ltd has
                                             Airworthiness Directives; BAE                            determined that in order to assure the
                                                                                                                                                            operators and is enforceable. In making
                                             Systems (Operations) Limited Model                       continued structural integrity of the                 these changes, we do not intend to differ
                                             BAe 146–100A and 146–200A Series                         horizontal stabilizer lower skin and joint            substantively from the information
                                             Airplanes                                                plates in the rib 1 area of certain BAe 146           provided in the MCAI and related
                                                                                                      aircraft, a revised inspection programme for          service information.
                                             AGENCY: Federal Aviation                                 this area is considered necessary. The                  We might also have required different
                                             Administration (FAA), Department of                      disbonding of joints can lead to corrosion,
                                                                                                                                                            actions in this AD from those in the
                                             Transportation (DOT).                                    which, if undetected, could result in
                                                                                                      degradation of the structural integrity of the        MCAI in order to follow our FAA
                                             ACTION: Final rule.                                                                                            policies. Any such differences are
                                                                                                      horizontal stabilizer.
                                             SUMMARY: We are adopting a new                             For the reasons described above, this EASA          highlighted in a Note within the AD.
                                                                                                      AD requires the implementation of repetitive
                                             airworthiness directive (AD) for the                                                                           Costs of Compliance
                                                                                                      inspections and corrective actions,
                                             products listed above. This AD results                   depending on findings. It also provides an
                                             from mandatory continuing                                                                                        We estimate that this AD will affect 5
                                                                                                      approved repair as optional terminating               products of U.S. registry. We also
                                             airworthiness information (MCAI)                         action for the repetitive inspections.
                                             originated by an aviation authority of                                                                         estimate that it will take about 9 work-
                                                                                                      The repetitive inspections for damage of              hours per product to comply with the
                                             another country to identify and correct                  the left and right side of the horizontal
                                             an unsafe condition on an aviation                                                                             basic requirements of this AD. The
                                                                                                      stabilizer lower skin and joint plates                average labor rate is $80 per work-hour.
                                             product. The MCAI describes the unsafe                   include a detailed visual inspection for
                                             condition as:                                                                                                  Based on these figures, we estimate the
                                                                                                      damage (including distortion, loose or                cost of this AD to the U.S. operators to
                                               BAE Systems (Operations) Ltd has                       distorted fasteners, and corrosion) of the            be $3,600, or $720 per product.
                                             determined that in order to assure the                   horizontal stabilizer lower skin, a
                                             continued structural integrity of the                    borescopic inspection for damage                      Authority for This Rulemaking
                                             horizontal stabilizer lower skin and joint               (including staining, debris around the
                                             plates in the rib 1 area of certain BAe 146                                                                       Title 49 of the United States Code
                                                                                                      stringer and joint plate edges, cracked or            specifies the FAA’s authority to issue
                                             aircraft, a revised inspection programme for
                                             this area is considered necessary. The                   broken stringers, and distortion or                   rules on aviation safety. Subtitle I,
                                             disbonding of joints can lead to corrosion               corrosion in rivet holes) of the internal             section 106, describes the authority of
                                             which, if undetected, could result in                    structure of the horizontal stabilizer,               the FAA Administrator. ‘‘Subtitle VII:
                                             degradation of the structural integrity of the           and a low frequency eddy current                      Aviation Programs,’’ describes in more
                                             horizontal stabilizer.                                   inspection for damage (including                      detail the scope of the Agency’s
                                                                                                      corrosion) of the horizontal stabilizer               authority.
                                             *     *     *    *     *                                 lower skin. For airplanes on which no
                                             We are issuing this AD to require                                                                                 We are issuing this rulemaking under
                                                                                                      damage is found, the required actions                 the authority described in ‘‘Subtitle VII,
                                             actions to correct the unsafe condition                  include drilling and reaming four holes
                                             on these products.                                                                                             Part A, Subpart III, Section 44701:
                                                                                                      and doing a detailed visual inspection
                                             DATES: This AD becomes effective
                                                                                                                                                            General requirements.’’ Under that
                                                                                                      of the holes for distortion and corrosion.
                                             September 2, 2009.                                                                                             section, Congress charges the FAA with
                                                                                                      Corrective actions include installing
                                               The Director of the Federal Register                                                                         promoting safe flight of civil aircraft in
                                                                                                      rivets, and contacting BAE Systems
                                             approved the incorporation by reference                                                                        air commerce by prescribing regulations
                                                                                                      (Operations) Limited for repair
                                             of certain publications listed in this AD                                                                      for practices, methods, and procedures
                                                                                                      instructions and doing the repair. Doing
                                             as of September 2, 2009.                                                                                       the Administrator finds necessary for
                                                                                                      a repair of the horizontal stabilizer
                                                                                                                                                            safety in air commerce. This regulation
                                             ADDRESSES: You may examine the AD                        (which consists of partially replacing
                                                                                                                                                            is within the scope of that authority
                                             docket on the Internet at http://                        the lower skin from the center line to
                                                                                                      inboard of rib 3) ends the repetitive                 because it addresses an unsafe condition
                                             www.regulations.gov or in person at the                                                                        that is likely to exist or develop on
                                             U.S. Department of Transportation,                       inspections. You may obtain further
                                                                                                      information by examining the MCAI in                  products identified in this rulemaking
                                             Docket Operations, M–30, West                                                                                  action.
                                             Building Ground Floor, Room W12–140,                     the AD docket.
                                             1200 New Jersey Avenue, SE.,                             Comments                                              Regulatory Findings
                                             Washington, DC.                                                                                                  We determined that this AD will not
                                                                                                        We gave the public the opportunity to
                                             FOR FURTHER INFORMATION CONTACT:                                                                               have federalism implications under
                                                                                                      participate in developing this AD. We
                                             Todd Thompson, Aerospace Engineer,                                                                             Executive Order 13132. This AD will
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                                                                                                      received no comments on the NPRM or
                                             International Branch, ANM–116,                           on the determination of the cost to the               not have a substantial direct effect on
                                             Transport Airplane Directorate, FAA,                     public.                                               the States, on the relationship between
                                             1601 Lind Avenue, SW., Renton,                                                                                 the national government and the States,
                                             Washington 98057–3356; telephone                         Conclusion                                            or on the distribution of power and
                                             (425) 227–1175; fax (425) 227–1149.                        We reviewed the available data and                  responsibilities among the various
                                             SUPPLEMENTARY INFORMATION:                               determined that air safety and the                    levels of government.


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                               37529

                                               For the reasons discussed above, I                     Bulletin ISB.55–020, dated December 11,                  (ii) If no distortion and no corrosion is
                                             certify this AD:                                         2007.                                                 found, before further flight, install the four
                                               1. Is not a ‘‘significant regulatory                                                                         rivets in accordance with paragraph 2.C.(4)(c)
                                                                                                      Subject
                                             action’’ under Executive Order 12866;                                                                          of the service bulletin.
                                                                                                        (d) Air Transport Association (ATA) of                 (2) Repeat the inspection for damage of the
                                               2. Is not a ‘‘significant rule’’ under the             America Code 55: Stabilizers.                         horizontal stabilizer lower skin and joint
                                             DOT Regulatory Policies and Procedures
                                                                                                      Reason                                                plates required by paragraph (f)(1) of this AD
                                             (44 FR 11034, February 26, 1979); and                                                                          thereafter at intervals not to exceed 24
                                               3. Will not have a significant                            (e) The mandatory continuing
                                                                                                                                                            months.
                                             economic impact, positive or negative,                   airworthiness information (MCAI) states:
                                                                                                                                                               (3) If damage is found during any
                                             on a substantial number of small entities                   BAE Systems (Operations) Ltd has
                                                                                                                                                            inspection required by paragraph (f)(1) or
                                             under the criteria of the Regulatory                     determined that in order to assure the
                                                                                                      continued structural integrity of the                 (f)(2) of this AD, before further flight, contact
                                             Flexibility Act.                                         horizontal stabilizer lower skin and joint            BAE Systems (Operations) Limited in
                                               We prepared a regulatory evaluation                    plates in the rib 1 area of certain BAe 146           accordance with paragraph 2.C.(5) of the
                                             of the estimated costs to comply with                    aircraft, a revised inspection programme for          service bulletin, and accomplish an approved
                                             this AD and placed it in the AD docket.                  this area is considered necessary. The                repair in accordance with paragraph 2.C.(6)
                                                                                                      disbonding of joints can lead to corrosion,           of the service bulletin.
                                             Examining the AD Docket                                  which, if undetected, could result in                    (4) Doing the repair of the horizontal
                                               You may examine the AD docket on                       degradation of the structural integrity of the        stabilizer in accordance with BAE Systems
                                             the Internet at http://                                  horizontal stabilizer.                                (Operations) Limited Repair Instruction
                                                                                                         For the reasons described above, this EASA         Leaflet (RIL) HC551H9061, Issue 3, dated
                                             www.regulations.gov; or in person at the
                                                                                                      AD requires the implementation of repetitive          January 31, 2008, on the left and right sides
                                             Docket Operations office between 9 a.m.                  inspections and corrective actions,                   of the horizontal stabilizer, terminates the
                                             and 5 p.m., Monday through Friday,                       depending on findings. It also provides an            repetitive inspections required by paragraph
                                             except Federal holidays. The AD docket                   approved repair as optional terminating               (f)(2) of this AD.
                                             contains the NPRM, the regulatory                        action for the repetitive inspections.                   (5) Actions accomplished before the
                                             evaluation, any comments received, and                   The repetitive inspections for damage of the          effective date of this AD according to BAE
                                             other information. The street address for                left and right side of the horizontal stabilizer      Systems (Operations) Limited RIL
                                             the Docket Operations office (telephone                  lower skin and joint plates include a detailed        HC551H9061, Issue 2, dated November 16,
                                             (800) 647–5527) is in the ADDRESSES                      visual inspection for damage (including               2007, are considered acceptable for
                                             section. Comments will be available in                   distortion, loose or distorted fasteners, and         compliance with the corresponding action
                                                                                                      corrosion) of the horizontal stabilizer lower         specified in this AD.
                                             the AD docket shortly after receipt.
                                                                                                      skin, a borescopic inspection for damage
                                                                                                      (including staining, debris around the                FAA AD Differences
                                             List of Subjects in 14 CFR Part 39
                                                                                                      stringer and joint plate edges, cracked or              Note 1: This AD differs from the MCAI
                                               Air transportation, Aircraft, Aviation                 broken stringers, and distortion or corrosion         and/or service information as follows: No
                                             safety, Incorporation by reference,                      in rivet holes) of the internal structure of the      differences.
                                             Safety.                                                  horizontal stabilizer, and a low frequency
                                                                                                      eddy current inspection for damage                    Other FAA AD Provisions
                                             Adoption of the Amendment                                (including corrosion) of the horizontal                  (g) The following provisions also apply to
                                             ■ Accordingly, under the authority                       stabilizer lower skin. For airplanes on which         this AD:
                                             delegated to me by the Administrator,                    no damage is found, the required actions                 (1) Alternative Methods of Compliance
                                                                                                      include drilling and reaming four holes and           (AMOCs): The Manager, International
                                             the FAA amends 14 CFR part 39 as                         doing a detailed visual inspection of the
                                             follows:                                                                                                       Branch, ANM–116, Transport Airplane
                                                                                                      holes for distortion and corrosion. Corrective
                                                                                                                                                            Directorate, FAA, has the authority to
                                                                                                      actions include installing rivets, and
                                             PART 39—AIRWORTHINESS                                                                                          approve AMOCs for this AD, if requested
                                                                                                      contacting BAE Systems (Operations)
                                             DIRECTIVES                                                                                                     using the procedures found in 14 CFR 39.19.
                                                                                                      Limited for repair instructions and doing the
                                                                                                                                                            Send information to ATTN: Todd Thompson,
                                                                                                      repair. Doing a repair of the horizontal
                                             ■ 1. The authority citation for part 39                  stabilizer (which consists of partially               Aerospace Engineer, International Branch,
                                             continues to read as follows:                            replacing the lower skin from the center line         ANM–116, Transport Airplane Directorate,
                                                                                                      to inboard of rib 3) ends the repetitive              FAA, 1601 Lind Avenue, SW., Renton,
                                                 Authority: 49 U.S.C. 106(g), 40113, 44701.
                                                                                                      inspections.                                          Washington 98057–3356; telephone (425)
                                             § 39.13   [Amended]                                                                                            227–1175; fax (425) 227–1149. Before using
                                                                                                      Actions and Compliance                                any approved AMOC on any airplane to
                                             ■ 2. The FAA amends § 39.13 by adding                      (f) Unless already done, do the following           which the AMOC applies, notify your
                                             the following new AD:                                    actions.                                              principal maintenance inspector (PMI) or
                                             2008–15–19 BAE Systems (Operations)                        (1) Within 6 months after the effective date        principal avionics inspector (PAI), as
                                                 Limited (Formerly British Aerospace                  of this AD, inspect for damage of the                 appropriate, or lacking a principal inspector,
                                                 Regional Aircraft): Amendment 39–                    horizontal stabilizer lower skin and joint            your local Flight Standards District Office.
                                                 15982. Docket No. FAA–2009–0432;                     plates, in accordance with paragraphs 2.C.(1)            (2) Airworthy Product: For any requirement
                                                 Directorate Identifier 2008–NM–168–AD.               through 2.C.(3) of BAE Systems (Operations)           in this AD to obtain corrective actions from
                                                                                                      Limited Inspection Service Bulletin ISB.55–           a manufacturer or other source, use these
                                             Effective Date                                           020, dated December 11, 2007 (the ‘‘service           actions if they are FAA-approved. Corrective
                                               (a) This airworthiness directive (AD)                  bulletin’’); and, if no damage is found, drill        actions are considered FAA-approved if they
                                             becomes effective September 2, 2009.                     and ream four holes in accordance with                are approved by the State of Design Authority
                                                                                                      paragraph 2.C.(4)(a) of the service bulletin,         (or their delegated agent). You are required
                                             Affected ADs                                             and do a detailed visual inspection of the            to assure the product is airworthy before it
                                               (b) None.                                              holes for distortion and corrosion, in                is returned to service.
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                                                                                                      accordance with paragraph 2.C.(4)(b) of the              (3) Reporting Requirements: For any
                                             Applicability                                            service bulletin.                                     reporting requirement in this AD, under the
                                               (c) This AD applies to BAE Systems                       (i) If any distortion or corrosion is found         provisions of the Paperwork Reduction Act,
                                             (Operations) Limited Model BAe 146–100A                  in any rivet hole, before further flight, contact     the Office of Management and Budget (OMB)
                                             and 146–200A series airplanes, certificated in           BAE Systems (Operations) Limited for                  has approved the information collection
                                             any category, as identified in BAE Systems               approved repair instructions and do the               requirements and has assigned OMB Control
                                             (Operations) Limited Inspection Service                  repair prior to the fitment of the rivets.            Number 2120–0056.



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                                             37530             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             Related Information                                      DEPARTMENT OF COMMERCE                                requirements contained in this final rule
                                               (h) Refer to MCAI European Aviation                                                                          may be submitted to the mailing address
                                             Safety Agency (EASA) Airworthiness                       National Oceanic and Atmospheric                      listed above and by e-mail to
                                             Directive 2008–0167, dated September 2,                  Administration                                        DavidlRostker@omb.eop.gov or fax to
                                             2008; BAE Systems (Operations) Limited                                                                         (202) 395–7285.
                                             Inspection Service Bulletin ISB.55–020,                  15 CFR Part 902                                       FOR FURTHER INFORMATION CONTACT:
                                             dated December 11, 2007; and BAE Systems                                                                       Peter Burns, Fishery Management
                                             (Operations) Limited Repair Instruction                  50 CFR Part 697                                       Specialist, telephone (978) 281–9144,
                                             Leaflet HC551H9061, Issue 3, dated January               [Docket No. 070717357–91069–03]                       fax (978) 281–9117.
                                             31, 2008; for related information.                                                                             SUPPLEMENTARY INFORMATION: This
                                                                                                      RIN 0648–AV77
                                             Material Incorporated by Reference                                                                             action responds to the recommendations
                                                                                                      Atlantic Coastal Fisheries Cooperative                for Federal action in the Atlantic States
                                                (i) You must use BAE Systems (Operations)
                                                                                                      Management Act Provisions; American                   Marine Fisheries Commission’s
                                             Limited Inspection Service Bulletin ISB.55–
                                             020, dated December 11, 2007, to do the                  Lobster Fishery                                       (Commission) Interstate Fishery
                                             actions required by this AD, unless the AD
                                                                                                                                                            Management Plan for American Lobster
                                                                                                      AGENCY: National Marine Fisheries                     (ISFMP). The mandatory Federal lobster
                                             specifies otherwise. If you do the repair
                                                                                                      Service (NMFS), National Oceanic and                  dealer reporting requirement is
                                             option provided in paragraph (f)(4) of this
                                                                                                      Atmospheric Administration (NOAA),                    consistent with the recommendations
                                             AD, you must use BAE Systems (Operations)
                                                                                                      Commerce.                                             for Federal action by the Commission in
                                             Limited Repair Instruction Leaflet
                                             HC551H9061, Issue 3, dated January 31,                   ACTION: Final rule.                                   Addendum X to Amendment 3 of the
                                             2008, unless the AD specifies otherwise. (The                                                                  ISFMP and allows for a more
                                                                                                      SUMMARY: NMFS announces new                           comprehensive and consistent
                                             issue date, January 31, 2008, of BAE Systems             Federal American lobster (Homarus
                                             (Operations) Limited Repair Instruction                                                                        coastwide accounting of lobster harvest
                                                                                                      americanus) regulations which                         data to facilitate stock assessment and
                                             Leaflet HC551H9061, Issue 3, is specified
                                                                                                      implement a mandatory Federal lobster                 fishery management. Accordingly,
                                             only on the first page of the document.)
                                                                                                      dealer electronic reporting requirement,              effective January 1, 2010, this final rule
                                                (1) The Director of the Federal Register
                                                                                                      changes to the maximum carapace                       requires all Federal lobster dealers to
                                             approved the incorporation by reference of
                                                                                                      length regulations for several lobster                provide trip-level electronic reports on
                                             this service information under 5 U.S.C.
                                                                                                      conservation management areas                         a weekly basis. Under the preferred
                                             552(a) and 1 CFR part 51.
                                                                                                      (LCMAs/Areas), and a modification of                  alternative in the proposed rule for this
                                                (2) For service information identified in
                                             this AD, contact BAE Systems Regional
                                                                                                      the v-notch definition for protection of              action (70 FR 58099), the dealer
                                             Aircraft, 13850 McLearen Road, Herndon,
                                                                                                      egg-bearing female American lobsters in               reporting requirements would have been
                                             Virginia 20171; telephone 703–736–1080; e-
                                                                                                      certain LCMAs.                                        effective thirty days after publication of
                                             mail raebusiness@baesystems.com; Internet                DATES: Effective Date: This final rule is             this final rule. However, in
                                             http://www.baesystems.com/Businesses/                    effective August 28, 2009.                            consideration of the public comments
                                             RegionalAircraft/index.htm.                                 Applicability dates: The revised                   received on the reporting requirements,
                                                (3) You may review copies of the service              broodstock protection measures                        NMFS has deferred the effective date for
                                             information at the FAA, Transport Airplane               (maximum carapace length and v-notch                  electronic reporting for affected lobster
                                             Directorate, 1601 Lind Avenue, SW., Renton,              definition) set forth in this final rule in           dealers until January 1, 2010, to provide
                                             Washington. For information on the                       § 697.20(b)(3) through § 697.20(b)(6) and             dealers with several additional months
                                             availability of this material at the FAA, call           § 697.20(g)(3) and (4) for Areas 2, 3, 4,             to adjust their business practices and
                                             425–227–1221 or 425–227–1152.                            5 and 6 are applicable August 28, 2009.               comply with these new requirements.
                                                (4) You may also review copies of the                 Broodstock protection measures                           In addition to expanded dealer
                                             service information that is incorporated by              relevant to the Outer Cape Area are                   reporting requirements, this action
                                             reference at the National Archives and                   applicable July 1, 2010 as set forth in               revises existing Federal lobster
                                             Records Administration (NARA). For                       § 697.20(b)(7) and (8) and § 697.20(g)(7)             regulations and implements new
                                             information on the availability of this                  and (8). The weekly trip-level Federal                requirements to support the
                                             material at NARA, call 202–741–6030, or go               lobster dealer electronic reporting                   Commission’s ISFMP by adopting v-
                                             to: http://www.archives.gov/federal_register/            requirements are applicable for all                   notching and maximum carapace length
                                             code_of_federal_regulations/ibr_                         Federal lobster dealers beginning                     measures (together referred to as
                                             locations.html.                                          January 1, 2010 as set forth in § 697.6               broodstock protection measures) in
                                               Issued in Renton, Washington, on July 13,              paragraphs (n) through (s).                           Areas 2, 3, 4, 5 and 6 (see 50 CFR
                                             2009.                                                    ADDRESSES: Copies of the American                     § 697.18 for descriptions and locations
                                             Ali Bahrami,                                             Lobster Environmental Assessment/                     of all LCMAs). These measures are, for
                                                                                                      Regulatory Impact Review/Final                        the most part, identical to those already
                                             Manager, Transport Airplane Directorate,
                                             Aircraft Certification Service.
                                                                                                      Regulatory Flexibility Analysis (EA/                  enforced by the states. These Federal
                                                                                                      RIR/FRFA) prepared for this regulatory                broodstock protection measures
                                             [FR Doc. E9–17542 Filed 7–28–09; 8:45 am]
                                                                                                      action are available upon written                     complement the Commission’s ISFMP
                                             BILLING CODE 4910–13–P                                   request to Harold C. Mears, Director,                 objectives and state regulations, thereby
                                                                                                      State, Federal and constituent Programs               reducing confusion and facilitating
                                                                                                      Office, NMFS, 55 Great Republic Drive,                enforcement and resource assessment
                                                                                                      Gloucester, MA 01930, telephone (978)                 within and across lobster stock and
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                                                                                                      281–9327. The documents are also                      management areas.
                                                                                                      available online at http://                              Specifically, for Areas 2, 4, 5 and 6,
                                                                                                      www.nero.noaa.gov.                                    this rule implements a maximum
                                                                                                         Written comments regarding the                     carapace size restriction for both male
                                                                                                      burden-hour estimates or other aspects                and female American lobster at 5 1/4
                                                                                                      of the collection-of-information                      inches (13.34 cm) and a maximum size


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37531

                                             of 6 7/8 inches (17.46 cm) for offshore                  Management Act (Atlantic Coastal Act)                 collection and broodstock protection.
                                             Area 3. These measures take effect thirty                16 U.S.C. 5101 et seq., which states, in              The Commission took action to address
                                             days after the publication of this final                 the absence of an approved and                        these issues through the adoption of
                                             rule. On July 1, 2010, the maximum                       implemented Fishery Management Plan                   Addendum X and Addendum XI to
                                             carapace length regulation in Area 3                     under the Magnuson-Stevens Fishery                    Amendment 3 of the ISFMP. The focus
                                             will decrease to 6 3/4 inches (17.15 cm).                Conservation and Management                           of this rulemaking is on the mandatory
                                             Further, effective thirty days after the                 Reauthorization Act (Magnuson-Stevens                 dealer reporting requirements in
                                             publication of this rule, Areas 2, 3, 4, 5               Act) (16 U.S.C. 1801 et seq.) and, after              Addendum X and the broodstock
                                             and 6 will be held to the Commission’s                   consultation with the appropriate                     protection measures of Addendum XI.
                                             v-notch definition which is a notch or                   Fishery Management Council(s), the                    This action also will facilitate
                                             indentation in the base of the flipper                   Secretary of Commerce may implement                   enforcement and resource assessment by
                                             that is at least as deep as 1/8 inch (0.32               regulations to govern fishing in the EEZ,             aligning measures of different
                                             cm), with or without setal hairs. The                    i.e., from 3 to 200 nautical miles (nm)               management areas that fish on a
                                             Commission’s definition revises the                      offshore. The regulations must be (1)                 common lobster stock.
                                             definition of a standard v-shaped notch                  compatible with the effective                            A new stock assessment was
                                             in § 697.2.                                              implementation of an ISFMP developed                  completed and approved by the
                                                Finally, this action expands the                      by the Commission and (2) consistent                  Commission’s Lobster Management
                                             Commission’s recommended broodstock                      with the national standards set forth in              Board in May 2009 and released to the
                                             protection measures to include the                       section 301 of the Magnuson-Stevens                   Lobster Technical Committee for
                                             Outer Cape Management Area (Outer                        Act.                                                  recommendations on future
                                             Cape Area/Outer Cape) to provide                                                                               management measures to address the
                                             further opportunities to protect lobster                 Purpose and Need for Management                       concerns raised by the assessment. Due
                                             broodstock and provide for a framework                      One purpose of this action is to                   to the timing of this Federal regulatory
                                             of consistent management measures                        improve the availability and utility of               action, the Lobster Technical Committee
                                             across lobster stock areas. The                          fishery-dependent lobster data to meet                recommendations are not available for
                                             broodstock protection measures for the                   the need for a more comprehensive                     incorporation in this document.
                                             Outer Cape Area, under the preferred                     baseline for assessing the status of                  However, a review of the assessment
                                             alternative in the proposed rule, would                  lobster stocks coastwide. It also will                information available when this rule
                                             have taken effect thirty days after the                  provide NMFS with a complete set of                   was prepared suggests that the measures
                                             publication of this final rule, consistent               trip-level harvest data from all Federal              identified in this action will not be
                                             with the broodstock requirements for                     lobster dealers for use in cooperative                contrary to the assessment results.
                                             Areas 2, 3, 4, 5 and 6. However, after                   and internal policy decisions and
                                                                                                      analyses. Additionally, this action will              Background
                                             considering the concerns of the Outer
                                             Cape lobster industry regarding the                      enhance lobster broodstock protection,                   American lobsters are managed
                                             perceived economic impacts of these                      facilitate enforcement of lobster                     within the framework of the
                                             measures, and after reviewing, at the                    measures, and aid in resource                         Commission. The Commission serves to
                                             request of the Outer Cape industry,                      assessment by revising American lobster               develop fishery conservation and
                                             newly-available Outer Cape sea                           maximum carapace size and v-notch                     management strategies for certain
                                             sampling data provided by the                            requirements, consistent with the                     coastal species and coordinates the
                                             Commonwealth of Massachusetts,                           recommendations of the Commission in                  efforts of the states and Federal
                                             NMFS has deferred effective                              the ISFMP. Finally, this rule expands                 Government toward concerted
                                             implementation of the Outer Cape Area                    the curtain of protection on broodstock               sustainable ends. The Commission
                                             broodstock measures until July 1, 2010,                  lobster migrating among lobster                       decides upon a management strategy as
                                             to allow affected fishers in the Outer                   management areas by extending the                     a collective and then forwards that
                                             Cape Area additional time to adjust to                   revised maximum carapace size and v-                  strategy to the states and Federal
                                             these new regulatory requirements.                       notch requirements to the Outer Cape                  Government, along with a
                                             Accordingly, the revised standard v-                     Management Area. As referenced in the                 recommendation that the states and
                                             notch definition (a notch or indentation                 EA for this action, the Outer Cape                    Federal Government take action (e.g.,
                                             in the base of the flipper that is at least              lobster fishery is categorized as fishing             enact regulations) in furtherance of this
                                             as deep as 1/8 inch (0.32 cm), with or                   on a population of transient lobsters                 strategy. The Federal Government is
                                             without setal hairs) and the 6 3/4–inch                  migrating between inshore and offshore                obligated by statute to support the
                                             (17.15 cm) maximum size will take                        areas. Therefore, the expansion of the                Commission’s ISFMP and overall
                                             effect in the Outer Cape Area on July 1,                 broodstock measures in the Outer Cape                 fishery management efforts.
                                             2010. Until July 1, 2010, the Outer Cape                 Area complements those measures in                       In support of the ISFMP, NMFS
                                             Area will not have a maximum carapace                    adjacent areas which may augment long-                revises the Federal American lobster
                                             length restriction and will remain                       term biological benefits on a multi-area              regulations in response to the
                                             governed by the 1/4–inch (0.64–cm) v-                    and multi-stock basis and aid in                      Commission’s recommendations for
                                             notch definition in the Federal lobster                  resource assessment since the Outer                   Federal action in Addenda X and XI.
                                             regulations which is a straight-sided                    Cape Area overlaps all three lobster                  The addenda were themselves a
                                             triangular cut, without setal hairs, at                  stock areas.                                          response, at least in part, to conclusions
                                             least 1/4 inch (0.64 cm) in depth and                       The need for action is rooted in the               contained in the 2005 lobster stock
                                             tapering to a point.                                     2005 peer-reviewed American lobster                   assessment. More specifically, the 2005
                                                                                                      stock assessment and in                               stock assessment and peer review
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                                             Statutory Authority                                      recommendations in a subsequent peer                  process identified the dearth of landings
                                               This final rule modifies the Federal                   review panel report. The findings of the              data in the American lobster fishery as
                                             lobster regulations in the Exclusive                     stock assessment and peer review panel                an inhibitor to the effective evaluation
                                             Economic Zone (EEZ) under the                            prompted the Commission to take action                of the status of the lobster resource, that
                                             authority of section 803(b) of the                       by adopting measures to address the                   available data are woefully inadequate
                                             Atlantic Coastal Fisheries Cooperative                   need for improved fishery data                        to fulfill the management needs of the


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                                             37532             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             resource, and that a mandatory catch                     modified option allowed for a one-year                impacts. In an effort to understand
                                             reporting system is needed. Such                         delay in the implementation of the                    industry concerns with the proposed
                                             conclusions provided the impetus for                     measure. This final rule finds a middle               rule, NMFS attended an Outer Cape
                                             Addendum X’s reporting requirements,                     ground between the two options by                     Lobster Conservation Management
                                             which initiated this action to implement                 requiring all Federal American lobster                Team (LCMT) meeting in Chatham, MA
                                             the mandatory Federal dealer reporting                   dealers to comply with electronic                     on November 10, 2008, which occurred
                                             requirement.                                             reporting requirements beginning                      during the comment period for the
                                                This same 2005 assessment and peer                    several months after publication of this              proposed rule. This industry meeting,
                                             review process concluded that the                        rule, effective January 1, 2010. The                  facilitated by the Massachusetts
                                             Southern New England (SNE) lobster                       decision is based on public comments                  Division of Marine Fisheries (MA DMF),
                                             stock is suffering from depleted stock                   (five in favor of mandatory dealer                    was widely attended by the Outer Cape
                                             abundance and recruitment with high                      reporting and four in opposition, See                 lobster fishing sector as well as
                                             dependence on new recruits. The SNE                      Comments and Responses) in response                   members and proxies of the
                                             stock component is in poor shape with                    to the proposed rule that electronic                  Massachusetts state legislature and local
                                             respect to spawning, recruit and full-                   reporting requirements may be                         media.
                                             recruit abundance indices. The                           expensive for dealers who do not                         NMFS listened to the concerns of the
                                             assessment results also indicated that                   currently own computers. The EA                       industry during the meeting and
                                             the Georges Bank (GBK) lobster stock,                    prepared for this action determined that              encouraged the public to submit written
                                             although in a stable state with respect to               delaying the requirements would reduce                comments by the end of the comment
                                             abundance and recruitment, is also                       short-term costs of acquiring Internet                period. At the suggestion of the industry
                                             dependent on new entrants to the                         service, for those who did not already                during the meeting, NMFS agreed to
                                             fishery a cause for concern that the                     have it, during that interim year.                    review data from an ongoing expanded
                                             fishery is too reliant on newly recruited                Additionally, a delay would provide                   sea sampling program designed to
                                             lobster. These issues prompted the                       more time for affected dealers to obtain              further evaluate the potential impacts of
                                             Commission to adopt Addendum XI,                         the required equipment and otherwise                  the proposed measures on the Outer
                                             which sought to protect SNE broodstock                   adjust their business practices to                    Cape lobster fishing sector. Conducted
                                             lobsters by creating new maximum                         accommodate electronic reporting.                     as a cooperative effort between MA
                                             carapace lengths and implementing a                      Some affected dealers may choose to                   DMF and the Outer Cape industry, the
                                             more restrictive definition of a v-notch                 offset costs by obtaining the file upload             expanded sea sampling program in 2008
                                             in certain Lobster Management Areas.                     software through a NMFS contractor, at                was initiated to more accurately
                                             Accordingly, NMFS published a                            no cost to the impacted dealer. The no-               document the impacts of the broodstock
                                             proposed rule in the Federal Register on                 cost option could mitigate some of the                measures in the Outer Cape
                                             October 6, 2008 (73 FR 58099) which                      financial impact to Federal lobster                   Management Area.
                                             presented the following three                            dealers who now will be subject to                       Accordingly, in 2008, MA DMF
                                             independent regulatory actions for                       mandatory dealer reporting on January                 enhanced its ongoing sea sampling
                                             public comment:                                          1, 2010. Additionally, delaying                       program by doubling the number of
                                                (1) Requiring all Federal lobster                     implementation of the dealer reporting                Outer Cape sea sampling trips for the
                                             dealers to electronically report trip-level              program until January 1, 2010 will allow              2008 sampling year. Normally, MA DMF
                                             lobster landings to NMFS on a weekly                     for a more seamless integration of the                takes 14 sea sampling trips from the
                                             basis;                                                   new dealers into the data collection                  Outer Cape ports of Chatham and
                                                (2) Establishing a maximum carapace                   program since the effective date                      Nauset from May through November of
                                             length restriction for lobster in Area 2,                coincides with the start of the annual                each year (seven trips from each of
                                             Area 3, Area 6, and the Outer Cape                       Federal dealer reporting period which is              Chatham (southern part of the Outer
                                             Management Area and revising the                         January 1. All dealer data are entered                Cape Area) and Nauset (central part of
                                             maximum carapace length requirements                     into the Standard Atlantic Fisheries                  the Outer Cape Area)). However, for this
                                             for Areas 4 and 5; and                                   Information System (SAFIS).                           expanded 2008 program MA DMF
                                                (3) Revising the Federal definition of                   With respect to the broodstock                     completed an additional 14 Outer Cape
                                             a standard v-notched lobster, applicable                 protection measures of this rule: Issue               sea sampling trips during the sampling
                                             to lobster in all areas, with the                        (2)- Maximum Size Restrictions; and                   season. All 14 additional trips were
                                             exception of Area 1.                                     Issue (3) - Revisions to the V-Notch                  conducted aboard vessels operating out
                                                Three alternatives for each of the                    Definition, NMFS analyzed two options                 of the port of Provincetown (northern
                                             three proposed regulatory actions were                   in addition to the no action alternative.             part of the Outer Cape Area), a port not
                                             analyzed in a draft Environmental                        These options included the straight                   previously included in MA DMF’s
                                             Assessment (EA) and included: a status                   Commission recommendations that                       lobster sea sampling program.
                                             quo (no action) alternative; an                          would not extend the broodstock                          NMFS received the completed
                                             alternative to implement the                             measures to the Outer Cape Area and a                 analysis of the expanded sea sampling
                                             Commission’s ISFMP recommendations                       modified alternative that would include               program from MA DMF on February 11,
                                             in Addendum X and XI; and a third                        the Outer Cape Area.                                  2009. Upon review of the MA DMF
                                             modified alternative which varies in                        NMFS received many comments from                   analysis (MA DMF Report) of the
                                             certain aspects from the Commission                      the Outer Cape industry in opposition to              enhanced sea sampling program data,
                                             recommendations, but still would be                      the expansion of the broodstock                       NMFS chose to support the preferred
                                             compatible with the Commission’s                         measures into the Outer Cape (See                     alternative to expand the broodstock
                                             ISFMP. Specifically, with respect to                     Comments and Responses). The general                  measures into the Outer Cape Area, as
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                                             issue (1) - Dealer Reporting - the                       theme of the comments was that the                    the information in the report did not
                                             preferred alternative would have                         proposed broodstock measures would                    contradict the rationale for expanding
                                             implemented weekly, trip-level                           affect a higher percentage of the catch               the broodstock measures to include the
                                             electronic reporting requirements for all                than the NMFS analysis in the draft EA                Outer Cape Area. However, in
                                             Federal lobster dealers within 30 days of                had determined and would,                             consideration of the comments and
                                             publication of the final rule. The                       consequently, have greater economic                   concerns of the Outer Cape industry as


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                         37533

                                             demonstrated through the industry                        expanded survey only sampled trap                     sampling program which considered
                                             meeting and in written comments,                         vessels but the expected impacts to the               Outer Cape v-notch statistics from 2005
                                             NMFS defers the effective date of these                  non-trap component of the Outer Cape                  through 2008. That data segment
                                             measures (the 6 3/4–inch (17.15–cm)                      lobster fishery are not expected to be                estimated that the difference in losses in
                                             maximum carapace length restriction                      significant based on the analysis                     catch between the current 1/4–inch
                                             and 1/8–inch (0.32 cm) v-notch                           conducted in the EA for this action. On               (0.64–cm) v-notch definition and the
                                             definition) only in the Outer Cape Area                  balance, NMFS will defer the                          proposed 1/8–inch (0.32–cm) v-notch
                                             for a full year (until July 1, 2010) to                  implementation of the 6 3/4–inch                      would fall between 3.8 percent to 5
                                             allow the industry time to adjust to the                 (17.15–cm) maximum size in the Outer                  percent for the Nauset and Chatham
                                             new requirements.                                        Cape Area for a full year, until July 1,              areas.
                                                The decision to move ahead with the                   2010, to allow the industry additional                   The data in the MA DMF report on
                                             preferred alternative was                                time to mitigate any adverse impacts                  the 14 Provincetown trips revealed a
                                             straightforward with respect to the                      resulting from the implementation of                  much higher instance of v-notched
                                             maximum size requirements. The NMFS                      these broodstock measures on Outer                    female lobster, estimated at
                                             EA analysis estimates impacts to the                     Cape lobstermen.                                      approximately 14.9 percent of the catch.
                                             Outer Cape industry due to restricting                      NMFS review of the v-notch data from               Therefore, without considering the
                                             the harvest of lobster in excess of 6                    the expanded MA DMF sea sampling                      manner in which the sampling was
                                             3/4 inches (17.15 cm) as not significant                 program found results to be consistent                conducted and other relevant factors,
                                             - about 0.5 percent for the trap sector                  with the NMFS impact analysis in the                  the report indicates that implementation
                                             and about 5.7 percent for the non-trap                   EA regarding the Nauset and Chatham                   of a 1/8–inch (0.32–cm) v-notch
                                             sector. The MA DMF 2008 expanded sea                     trips. The EA considered MA DMF sea                   standard could result in a 10.7 percent
                                             sampling data analysis had similar                       sampling data collected from 1999 to                  loss in harvest when compared to the 1/
                                             findings. In fact, the expanded sea                      2005, which indicated that the                        4–inch (0.64–cm) v-notch standard.
                                             sampling data suggest that the impacts                   percentage of females with a v-notch in               However, this estimate does not
                                             on Outer Cape lobstermen of the 6 3/4–                   the Outer Cape Area varied between 2                  accurately reflect the expected losses in
                                             inch (17.15–cm) maximum size are even                    percent and 4 percent of the lobsters                 catch that would be endured by the
                                             less than estimated in the NMFS                          observed as cited in the EA. This long-               lobster industry if the 1/8–inch (0.32–
                                             analysis. Specifically, during the entire                term data set is among the few available              cm) v-notch standard is applied, in fact,
                                             2008 sea sampling season, which                          for assessing v-notch status for the                  the impacts are expected to be much
                                             included 28 sampling trips aboard                        northwest Atlantic lobster resource and               less. The MA DMF report aptly points
                                             commercial trap fishing vessels in the                   the best available for assessing v-notch              out the reasons for this over-estimation
                                             Outer Cape Area, not one harvestable                     status in the Outer Cape Area. Despite                as noted below and cautions users of the
                                             lobster was observed in excess of the 6                  the longevity and consistency of the                  data from accepting the data on face
                                             3/4–inch (17.15–cm) maximum                              data set, concerns with the precision of              value, stating ‘‘the dramatic difference
                                             carapace length. Although the MA DMF                     the v-notch measurement are notable.                  in v-notch rate detected by location
                                             report affirms NMFS’ rationale in                        Specifically, MA DMF sampling                         mandates caution when applying any
                                             proposing these new regulations, the                     protocol did not include quantitative                 OCC-wide estimates of losses.’’
                                             report is not being relied upon to form                  measurement of notch depth. Since the                    When considering the data from the
                                             the basis of the rationale.                              notches were not measured, it is not                  Provincetown sampling trips, many
                                                Based on the findings of the NMFS                     known what proportion of the                          factors must be considered. Primarily,
                                             analysis with which the expanded MA                      population of v-notched lobsters would                the data reflect only one season’s worth
                                             DMF sampling program data is                             be legal under various v-notching                     of sea sampling, totaling 14 trips
                                             consistent, the impacts of the maximum                   definitions. Regardless of the notch                  between May and November, 2008.
                                             size regulations on the Outer Cape                       depth, if the most conservative                       More than one third of the trips were
                                             lobster industry are not expected to be                  assumption is applied (essentially a                  conducted in November when lobsters
                                             significant. This finding is highlighted                 zero-tolerance definition) and all the v-             are expected to be moving from cooling
                                             in the MA DMF report on the expanded                     notched lobsters are considered illegal               inshore waters to deeper offshore
                                             Outer Cape sea sampling program which                    for harvest, still only about 4 percent of            locations. Therefore, more notched
                                             indicated that ‘‘very few marketable                     the lobster would be illegal due to the               lobsters may be present and observed as
                                             (non-egg bearing, non-v-notched)                         presence of any type of v-notch.                      they move offshore from Massachusetts
                                             lobsters greater than the proposed                       However, the percentage of illegal                    and Cape Cod Bays through the Outer
                                             maximum sizes were observed, as such                     lobster is likely less than 4 percent since           Cape Area. Further, the sampling bias
                                             the potential loss to the fishery...would                some unknown number of notched                        from conducting over 30 percent of the
                                             be negligible.’’ The MA DMF report                       lobsters would still be legal under either            sampling trips for the season in a single
                                             further states that only 14 lobsters out                 the 1/8–inch (0.32–cm) or 1/4–inch                    month limits the manner in which the
                                             of 85,695 lobsters sampled in the Outer                  (0.64–cm) v-notch definitions.                        data can be interpreted and applied.
                                             Cape region since 1981 (0.02 percent)                       Since the 1/8–inch (0.32–cm)                       More importantly, one would expect the
                                             had a carapace length which exceeded                     definition is more restrictive (assuming              incidence of v-notched lobsters in the
                                             the proposed maximum size of 6 3/4                       that all notches are made consistent                  northern portion of the Outer Cape Area
                                             inches (17.15 cm). NMFS stands behind                    with an industry standard of a 1/4–inch               to be higher than other parts of the
                                             its analysis of the impacts of these                     (0.64–cm) notch), it would appear that                Outer Cape Area since it is immediately
                                             measures in the EA and reviewed the                      the impacts of this standard would be                 adjacent to Lobster Management Area 1,
                                             MA DMF report at the industry’s request                  somewhat less than 4 percent, although                which is part of the GOM Stock Area
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                                             as a check on the accuracy of the                        somewhat higher than under a 1/4–inch                 and subject to a mandatory v-notching
                                             analysis. After reviewing the MA DMF                     (0.64–cm) standard. Regardless, these                 requirement (lobstermen must v-notch
                                             report, there is nothing to change the                   losses in catch are expected to be                    and release all egg-bearing lobsters) and
                                             decision to expand the maximum size                      relatively low for the Nauset and                     a more restrictive ‘‘zero-tolerance’’ v-
                                             restrictions to include the Outer Cape. It               Chatham fleets. This estimate was                     notch definition. According to the MA
                                             should be noted that the MA DMF                          supported by MA DMF’s expanded sea                    DMF report, 87 percent of the sampling


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                                             37534             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             trips out of Provincetown occurred west                  from that port over the course of the                 of Area 3 fall within the GBK stock area.
                                             of 70 ° W. Long., the meridian which                     season, the 2008 MA DMF data affirms                  Given the confusion that differential
                                             separates the GOM and GBK stocks,                        the rationale for NMFS to carry forward               management measures would cause
                                             with the former on the west side of the                  with the expansion of the 1/8–inch                    within a single management area, the
                                             meridian (NMFS Statistical Area 514)                     (0.32–cm) v-notch requirement to                      potential for additional economic
                                             and the latter on the east side (NMFS                    include the Outer Cape Area. Under the                impacts due to the implementation of
                                             Statistical Area 521). Additionally, the                 current scenario, fishermen in Area 1                 the zero-tolerance definition, and the
                                             MA DMF report states that ‘‘the highest                  are subject to the most restrictive zero              lack of confidence in a single years’
                                             incidence of v-notched lobster was                       tolerance v-notch definition. These                   worth of data (2008) for making such
                                             observed in the ‘‘overlap area’’ around                  fishermen are discarding lobster with                 assumptions, NMFS intends to
                                             Provincetown where Area 1 lobstermen                     any mark resembling a trace of a notch                implement the 1/8–inch (0.32–cm)
                                             and Outer Cape lobstermen fish side-by-                  or any which are mutilated in a manner                standard to the entire Outer Cape Area.
                                             side....indicating that the majority of the              that could obscure a notch. Fishing                      The MA DMF study shows that the
                                             Provincetown fishery occurred within                     alongside them are Provincetown                       impacts of the 1/8–inch (0.32 cm) v-
                                             the Gulf of Maine Stock Unit.’’ The                      fishermen who, prior to this rulemaking,              notch on Nauset and Chatham
                                             overlap area refers to the Area 1/Outer                  were subject to the least restrictive 1/4–            fishermen are relatively consistent with
                                             Cap Overlap Area. Lobstermen who                         inch (0.64–cm) v-notch definition and                 those estimated by NMFS in the EA
                                             traditionally fish in Area 1 can fish in                 allowed to harvest some percentage of                 (3.8–5 percent loss of catch in the MA
                                             this overlap area under Area 1                           the v-notched lobsters that the                       DMF study versus less than 4 percent in
                                             management regulations, while                            Commission’s ISFMP, as well as Area 1                 the EA based on previous MA DMF sea
                                             lobstermen who fish in the Outer Cape                    lobstermen, are trying to protect from                sampling time series data). At the same
                                             Area can fish in the overlap under the                   harvest. Mitigating the compromising                  time, data collected in 2008 by MA DMF
                                             Outer Cape Area management measures.                     effects of inconsistent management                    indicate additional losses in
                                                Another important fact in assessing                   measures across management areas is                   Provincetown could exceed 10 percent
                                             the extent to which the incidence of v-                  one of the intentions of this rule which              under an unlikely ‘‘worst case scenario’’
                                             notched lobsters in the MA DMF                           has generally focused on alignment of                 due to the manner in which the sea
                                             investigation may be interpreted is that                 the broodstock protection measures of                 sampling data was collected. However,
                                             the sea samplers did not measure the                     the Outer Cape with those of Area 3                   NMFS acknowledges the challenges
                                             depth of the v-notch of the lobsters                     since the majority of the Outer Cape                  referenced in the report which states
                                             encountered during the sea sampling                      fishery targets the GBK stock it shares               that ‘‘the dramatic difference in v-notch
                                             trips. Rather, samplers categorized                      with Area 3. However, the 2008 data                   rate detected by location mandates
                                             notches as either a sharp notch, old                     from the MA DMF expanded sampling                     caution when applying any OCC-wide
                                             notch, or mutilated or missing flipper.                  program suggests that inconsistent                    estimates of losses.’’ Accordingly,
                                             In the MA DMF report, a sharp notch is                   measures may be compromising                          NMFS maintains its intent to expand
                                             a defined as a straight-sided v-shaped                   management of the GOM stock as well,                  the 1/8–inch (0.32–cm) v-notch measure
                                             notch without setal hair. An old notch                   although the short-term nature of this                to the Outer Cape Area. However, the
                                             is defined as a notch that has endured                   data should not be over-interpreted and               effective implementation date for
                                             at least one molt, usually more irregular                is insufficient to make any robust                    Federal Outer Cape Area permit holders
                                             in shape and often with setal hair                       determinations. The expanded MA DMF                   is deferred until July 1, 2010, to mitigate
                                             present. A flipper that is missing or                                                                          the impacts and allow the industry
                                                                                                      sampling data provided a snapshot of
                                             mutilated in a manner that could                                                                               additional time to adjust their business
                                                                                                      conditions existing at the time of
                                             obscure the notch was considered by                                                                            practices to this new requirement.
                                                                                                      observation, and accordingly, the MA
                                             samplers as a v-notch. Therefore, since
                                                                                                      DMF report cautioned against giving it                Description of the Public Process
                                             all such notches were not measured, the
                                                                                                      undue weight. Nevertheless, even if                     The actions set forth in this Final Rule
                                             MA DMF analysis assumes that all old
                                                                                                      accorded little weight, the report was                have undergone extensive and open
                                             notches were deeper than 1/8 inch (0.32
                                                                                                      notable in that it did nothing to                     public notice, debate and discussion
                                             cm) and therefore all such lobster were
                                                                                                      contradict NMFS’ findings.                            both at the Commission and Federal
                                             protected, as cited in the MA DMF
                                             report. However, it is expected that                        Although the MA DMF data indicate                  levels.
                                             many of these old notches, as well as                    that the majority of the Provincetown
                                                                                                      fishery occurs on the GOM stock, they                 1. Commission Public Process
                                             some subset of the mutilated lobster,
                                             would actually be legal for harvest                      still remain part of the Outer Cape                      Typically, this public discussion of a
                                             under the 1/8–inch (0.32 cm) notch                       fishery and their continuance in this                 potential Federal lobster action begins
                                             definition. In other words, the sampling                 category was affirmed by the adoption                 within the Commission process.
                                             design estimated the incidence of v-                     of a common overlap area with Area 1                  Specifically, the Commission’s Lobster
                                             notch based on a zero-tolerance                          in the Commission’s plan, and                         Board often charges its Plan
                                             definition and assumes that all notched                  subsequently by NMFS for the purposes                 Development Team or Plan Review
                                             lobster are illegal. The MA DMF report                   of consistency and cooperation.                       Team sub-committees of the Lobster
                                             points out that this represents ‘‘a worst                Applying the more restrictive zero-                   Board - to investigate whether the
                                             case scenario’’ and that the ‘‘actual                    tolerance v-notch definition to the                   existing ISFMP needs to be revised or
                                             degree of protection and losses to the                   Provincetown sector of the fishery may                amended to address a problem or need,
                                             industry would be less’’ than the                        more directly assist in the conservation              often as identified in a lobster stock
                                                                                                      of the GOM stock, although such an                    assessment. The Plan Review and Plan
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                                             additional 10.7 percent calculated in the
                                             report for the Provincetown area, based                  assumption warrants more extensive                    Development Teams are typically
                                             only on one season’s worth of data                       review and evaluation. The scope of the               comprised of personnel from state and
                                             (2008).                                                  analysis of the broodstock protection                 federal agencies knowledgeable in
                                                Despite the short time series of the                  measures focused on aligning the Outer                scientific data, stock and fishery
                                             Provincetown v-notch data set and the                    Cape with Area 3 since the majority of                condition and fishery management
                                             skewed distribution of sampling trips                    the Outer Cape and a major component                  issues. If a team or teams conclude that


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                         37535

                                             management action is warranted, it will                  comments, new information, and/or                     Federal Register (72 FR 56935). The
                                             so advise the Lobster Board, which                       whatever additional matters are                       dealer reporting requirements and
                                             would then likely charge the LCMTs to                    relevant. After the debate, which may or              broodstock protection measures of the
                                             develop a plan to address the problem                    may not involve multiple Lobster Board                SNE Stock Rebuilding Program are
                                             or need. The LCMTs most often                            meetings, additional public comment                   addressed here in this final rule.
                                             comprised of industry representatives                    and/or requests for further input from
                                                                                                                                                            2. Federal Public Process
                                             will conduct a number of meetings open                   the LCMTs, Technical Committee and
                                             to the public wherein they will develop                  Advisory Panel, the Lobster Board will                   Since the transfer of Federal lobster
                                             a plan or strategy, i.e., remedial                       vote to adopt the draft addendum, and                 management in December 1999 from the
                                             measures, in response to the Lobster                     if applicable, request that the Federal               Magnuson Stevens Act, with its Federal
                                             Board’s request. The LCMTs then vote                     Government implement compatible                       Fishery Management Councils, to the
                                             on the plan and report the results of                    regulations.                                          Atlantic Coastal Act, with the Atlantic
                                             their vote back to the Lobster Board.                       The need for the Federal action is                 States Marine Fisheries Commission,
                                             Minutes of the LCMT public meetings                      rooted in the 2005 peer-reviewed                      Federal lobster action has typically been
                                             can be found at the Commission’s                         American lobster stock assessment and                 undertaken in response to a
                                             website at http://www.asmfc.org under                    in recommendations in a subsequent                    Commission action.
                                             the ‘‘Minutes & Meetings Summary’’                       peer review panel report. The findings                   The development of this current
                                             page in the American Lobster sub-                        of the stock assessment and peer review               rulemaking began in response to the
                                             category of the Interstate Fishery                       panel prompted the Commission to take                 Commission’s approval of Addenda X
                                             Management heading.                                      action by adopting measures to address                and XI February 2007 and May 2007,
                                                After receiving an LCMT proposal, the                 the need for improved fishery data                    respectively, and the Commission’s
                                             Commission’s Lobster Board will often                    collection and broodstock protection.                 request for complementary Federal
                                             attempt to seek specialized comment                      The Commission took action to address                 regulations. Since that time, NMFS has
                                             from both the Lobster Technical                          these issues through the adoption of                  filed an Advance Notice of Proposed
                                             Committee and Lobster Advisory Panel                     Addendum X and Addendum XI to                         Rulemaking (ANPR) in the Federal
                                             before the proposal is formally brought                  Amendment 3 of the ISFMP. The focus                   Register (72 FR 53978, September 21,
                                             before the Board. The Technical                          of this rulemaking is on the mandatory                2007) and a proposed rule (73 FR 58099,
                                             Committee is comprised of specialists,                   dealer reporting requirements in                      October 6, 2008) seeking public
                                             often scientists, whose role is to provide               Addendum X and the broodstock                         comment on the recommendations
                                             the Lobster Board with specific                          protection measures of Addendum XI.                   made by the Commission and the NMFS
                                             technical or scientific information. The                    Addendum X was approved by the                     alternatives based on Addenda X and
                                             Advisory Panel is a committee of                         Board in February 2007 to augment and                 XI. The Commission and the New
                                             individuals with particular knowledge                    enhance fisheries-dependent and                       England and Mid-Atlantic Fishery
                                             and experience in the fishery, whose                     fisheries-independent data collection                 Management Councils were also invited
                                             role is to provide the Lobster Board with                efforts at the state and Federal level and            to comment and consult on the
                                             comment and advice. Minutes of the                       set forth an expanded coastwide                       proposed rule, consistent with past
                                             Technical Committee and Advisory                         mandatory reporting and data collection               actions, in letters dated October 6, 2008.
                                             Panel can be found at the Commission’s                   program. The program set coastwide                    Since the publication of the proposed
                                             website at http://www.asmfc.org under                    standards for the submission of dealer                rule, NMFS met with concerned
                                             the ‘‘Minutes & Meetings Summary’’                       and harvester reports, sea and port                   members of the Outer Cape lobster
                                             page in the American Lobster sub-                        sampling and trawl surveys. The                       industry to hear their comments. At the
                                             category of the Interstate Fishery                       purpose of the addendum was to                        industry’s request and in cooperation
                                             Management heading.                                      address the concerns of inadequate data               with the Commonwealth of
                                                After receiving sub-committee advice,                 for use in fishery assessments as                     Massachusetts, NMFS received
                                             the Lobster Board debates the proposed                   indicated in the 2005 stock assessment                additional information from MA DMF
                                             measures in an open forum whenever                       peer-review process.                                  and considered its findings in
                                             the Board convenes (usually four times                      Addendum XI was released for public                determining the measures for
                                             per year, one time in each of the spring,                comment as a draft document in April                  implementation in this final rule. NMFS
                                             summer, fall and winter seasons).                        2007 and responded to the findings of                 received 49 comments to its proposed
                                             Meeting transcripts of the Lobster Board                 the 2005 peer-reviewed stock                          Federal action, which are summarized
                                             can be found at the Commission’s                         assessment regarding the need for the                 below.
                                             website at http://www.asmfc.org under                    development of management measures
                                                                                                      to address the depleted abundance, low                Comments and Responses
                                             ‘‘Board Proceedings’’ on the ‘‘Minutes &
                                             Meetings Summary’’ page in the                           recruitment and high fishing mortality                  The proposed rule for this action was
                                             American Lobster sub-category of the                     rates in the SNE stock. Several states                published in the Federal Register on
                                             Interstate Fishery Management heading.                   held public hearings on the draft                     October 6, 2008 (73 FR 58099) to
                                             These meetings are typically scheduled                   addendum in April 2007 and the final                  address the Commission’s
                                             months in advance and the public is                      addendum was approved by the                          recommendations for Federal action in
                                             invited to comment at every Board                        Commission’s Lobster Board in May                     Addenda X (dealer reporting) and XI
                                             meeting. In the circumstance of an                       2007. Addendum XI includes a full                     (broodstock protection) to Amendment
                                             addendum, the Board will vote on                         suite of management measures designed                 3 of the Commission’s ISFMP for
                                             potential measures to include in a draft                 as the SNE Stock Rebuilding Program.                  American Lobster. The proposed rule
                                             addendum. Upon approving a draft                         Certain measures in the Addendum XI                   solicited public comments through
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                                             addendum, the Lobster Board will                         SNE Stock Rebuilding Program, such as                 November 20, 2008. A total of 49
                                             conduct further public hearings on that                  the Area 3 minimum gauge size increase                comments were received. Four
                                             draft addendum for any state that so                     and escape vent size increase, and two                comments were received in opposition
                                             requests. After conducting the public                    additional Area 3 trap reductions of 2.5              to the Federal lobster dealer electronic
                                             hearing, the Lobster Board will again                    percent, were implemented by NMFS in                  reporting requirements, while five wrote
                                             convene to discuss the public                            a separate rulemaking published in the                in favor of the dealer electronic


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                                             37536             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             reporting requirements. Similar to those                 the minority of dealers who would have                collected in consistent fashion, such as
                                             received in response to the ANPR for                     to report both electronically and by                  through the use of the SAFIS system,
                                             this action as addressed in the proposed                 paper. More specifically, the majority of             not only for administrative efficiencies
                                             rule, the comments in opposition to the                  Federal lobster permit dealers,                       (NMFS already has a successful and
                                             electronic dealer reporting requirements                 approximately 71 percent, already have                tested electronic reporting system in
                                             were received from two lobster dealers,                  to report electronically. Collection and              place for other species), but for the
                                             the State of Maine Department of                         assembly of the requisite data likely the             statistical integrity of collecting similar
                                             Marine Resources (ME DMR), and a                         most time intensive task is a one-time                data sets for a single species by the same
                                             lobster fishermen’s organization. The                    event that must occur regardless of the               means. Further, NMFS’s experience
                                             general theme of these comments was                      format in which the data is ultimately                suggests that while overall compliance
                                             that mandatory weekly electronic                         reported (and such data is undoubtedly                with Commission plans is excellent,
                                             reporting would add more                                 being collected by the business in some               states do not always interpret, and are
                                             administrative burden to affected lobster                form as part of the dealer’s regular                  not always able to implement, the plans
                                             dealers and would be redundant since                     business practices). Although there                   consistently and uniformly.
                                             many dealers are already providing the                   might be some start-up costs associated               Accordingly, NMFS believes it more
                                             data to their respective state fisheries                 with electronic reporting, computer                   prudent in this instance to mandate a
                                             agency.                                                  reporting is intuitively more efficient               single uniform Federal lobster dealer
                                                Thirty-two comments were received                     and less time intensive than having to                reporting system rather than rely on the
                                             in opposition to the inclusion of the                    write the data out and submit it in paper             eleven states on the Lobster Board to
                                             Outer Cape Area under the expanded                       format. Whether computer reporting                    submit data for certain Federal dealers
                                             broodstock protection measures. Seven                    would ultimately result in new                        according to the individual state’s
                                             comments were received in general                        efficiencies in every case is difficult to            reporting program.
                                             support of the broodstock protection                     gauge and might be dependent on                          Comment 2: One dealer wrote that he
                                             measures, while four individuals wrote                   individuals on a case by case basis.                  purchases lobster from fishermen who
                                             to support the expansion of the                             In adopting the mandatory electronic               drop off their catch on a floating lobster
                                             broodstock measures into the Outer                       Federal lobster dealer reporting, NMFS                car. The lobster are dropped off by
                                             Cape Area. Three commenters opposed                      balances the relatively small additional              fishermen when the dealer is not there,
                                             the broodstock protection measures in                    burden against the utility gained by the              complicating the ability to garner
                                             management areas other than the Outer                    requirement. First, there is great utility            specific data on the statistical area and
                                             Cape Area.                                               for Federal managers having access to,                time the lobster where harvested.
                                                Two comments opposing the                             and thus having their decisions guided                   Response: The Commission’s plan
                                             maximum size requirements were                           by, up-to-date harvest information.                   recommends that the dealer provide the
                                             received by a mid-Atlantic pot gear                      Electronic reporting allows for far more              statistical area where the lobster were
                                             fisherman and a recreational diving                      expedient collection of data than can be              harvested. The Final Rule does not
                                             group. Representatives of the offshore                   accomplished through a paper reporting                implement such a requirement. NMFS
                                             lobster fishing sector wrote in favor of                 system. The submission of paper reports               has considered but rejected this
                                             the dealer reporting, maximum size and                   is cumbersome and the data are not                    recommendation and has not adopted a
                                             v-notching requirements. Two                             consistently loaded by the states into                fishing area data collection requirement
                                             fishermen recommended consistent                         the SAFIS system in a timely manner.                  for dealers. NMFS believes that lobster
                                             measures throughout all lobster                          Some states require trip-level dealer                 harvesting information is best provided
                                             management areas and one fisherman                       reports be submitted on a monthly basis               by the harvester, not the dealer.
                                             commented that more restrictive                          and upon receipt, state employees enter                  Comment 3: Some commenters
                                             broodstock measures are needed                           in the data. Consequently, the data may               commented that dealer reporting for
                                             coastwide.                                               not reach the SAFIS system until several              lobster is not necessary since lobster is
                                                The significant comments and the                      weeks or more after a particular lobster              not a quota-managed species and the
                                             NMFS response to each comment are                        fishing trip which could hamper                       data are not needed on a weekly basis.
                                             provided here.                                           fisheries management and assessment                      Response: Although the lobster
                                                Comment 1: Two lobster dealers from                   efforts and limit the availability and                fishery is not managed by a quota
                                             Maine wrote in opposition to the                         utility of the dataset for internal needs.            system, the benefits of consistent
                                             mandatory electronic dealer reporting                    Conversely, under the proposed                        fishery-dependent data in effectively
                                             requirement, generally stating that this                 electronic reporting process, once                    managing the resource cannot be
                                             measure would unnecessarily add to the                   received, the data is already in the                  overstated. The lobster fishery is the
                                             reporting burden already mandated by                     system, with no data entry or handling                most economically lucrative in the
                                             the state.                                               of paper reports needed. Some states                  Northwest Atlantic, with ex-vessel
                                                Response: NMFS understands that                       may even eliminate their paper-based                  revenues totaling nearly $349 million in
                                             there might be a small amount of                         reporting requirements for those state                2007, sustaining numerous fishing
                                             redundancy for those Federally                           dealers who would be required under a                 communities. Yet, only 61 percent of
                                             permitted dealers who also have a state                  Federal mandatory reporting program to                Federal lobster harvesters and only 71
                                             dealer permit and who are thus already                   report to NMFS on an electronic basis,                percent of Federal lobster dealers
                                             bound to report by virtue of their state                 although such an outcome is                           provide landings data to NMFS. The
                                             permit. Generally, these requirements                    speculative.                                          2005 peer-reviewed lobster stock
                                             mirror those of state agencies as both                      Second, NMFS believes that data                    assessment indicated that improvements
                                             NMFS and the states use the same                         received through different systems can                to the quality and quantity of fishery-
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                                             SAFIS system (see Changes to Existing                    undermine the integrity and usefulness                dependent data, including dealer data,
                                             Regulations). By design, users meet the                  of the data. When similar data elements               are needed to facilitate the assessment
                                             requirements of all relevant regulatory                  are collected in an inconsistent manner,              of the lobster stocks. In the absence of
                                             entities. On balance, NMFS believes that                 the ability to efficiently utilize that               a mandatory Federal harvester reporting
                                             the utility of electronic reporting                      information is compromised. NMFS                      program NMFS has adopted a
                                             outweighs the burden associated with                     finds it advantageous for its data to be              mandatory electronic dealer reporting


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                         37537

                                             program for Federal dealers to                           that currently is not readily available to            business is solely or primarily
                                             complement the Commission’s plan and                     NMFS in a consistent, reliable or easily-             comprised of lobster sales. Under this
                                             the actions of the states in enhancing                   accessible fashion.                                   assumption, the estimated first-year cost
                                             the quality and quantity of lobster                         It is evident, both anecdotally and                of purchasing equipment and Internet
                                             fishery data to assist in the management                 from some of the comments received                    access would represent 0.47 percent of
                                             of this important fishery.                               that some dealers, especially in more                 gross net sales assuming a 40–percent
                                                More and more, landings data are                      remote areas, may not use computers as                markup (based on a NMFS economic
                                             needed by NMFS to address not only                       part of their business operations.                    analysis conducted on lobster fishery
                                             lobster policy issues, but other relevant                However, that number is unknown.                      transactions) and median purchases of
                                             issues such as large whale take                          Since no additional information is                    134,000 pounds (60,909 kg) with net
                                             reduction planning, Endangered Species                   available regarding either the number of              gross sales valued at $245,000 during
                                             Act analyses, and economic analyses,                     individuals without the required                      2007. These estimates are based on
                                             for example. NMFS is consistently                        equipment or more specific details on                 dealer reports for all Federal lobster
                                             challenged with insufficient and                         the costs of acquiring the technology,                permit holders who were subject to
                                             questionable data and sees this as an                    NMFS stands behind its analysis in the                mandatory reporting during 2007. At
                                             opportunity to obtain a consistent data                  EA regarding the impacts of electronic                these values, the annual cost of
                                             set, from its own dealers, to assist in its              reporting on the affected set of Federal              maintaining Internet access would be
                                             decision-making and policy analysis                      dealers. As such, NMFS estimates that                 0.27 percent of net gross sales. The
                                             responsibilities for lobster management                  the initial costs to dealers would be                 expected costs would be lower for any
                                             and other critical needs.                                about $580 for an adequate computer                   dealer who already has Internet access
                                                Although data on lobster landings                     and approximately $652 annually to                    and a computer meeting the minimum
                                             may not be needed on a weekly basis,                     support Internet access for those dealers             specifications. Further, the computer
                                             weekly receipt of trip-level data from all               that currently do not have a computer                 and Internet service, having been
                                             Federal dealers is certainly more timely                 or Internet service. In consideration of              purchased, may provide additional
                                             and hence, more readily available.                       ME DMR’s concern, however, NMFS re-                   benefits to the dealer’s business in ways
                                             Additionally, implementing a weekly                      assessed the potential costs to dealers               not associated with data reporting.
                                             reporting requirement for the affected                   and found that they are likely to be less                Comment 6: ME DMR commented
                                             Federal lobster dealers will mesh with                   than initially estimated (see response to             that NMFS failed to account for the time
                                             the current requirements in place for all                comment 6).                                           and cost burdens to dealers associated
                                             Federal seafood dealers, creating a                         Comment 5: ME DMR and one other                    with completing the weekly electronic
                                             common format across all Federal                         commenter disputed that dealers get a                 reports and underestimated the costs
                                             fisheries. The opportunity to obtain this                40 percent markup on lobsters they sell               associated with purchasing a computer
                                             important information in a consistent                    and, therefore, the NMFS estimates of                 and Internet service.
                                             manner will improve its utility for                      the costs of purchasing the necessary                    Response: NMFS analyzed the costs
                                             internal as well as for cooperative                      equipment as a percentage of gross                    associated with the collection of
                                             management and policy needs.                             income, based on this percentage, are                 information requirements for weekly
                                                Comment 4: ME DMR responded in                        inaccurate.                                           electronic dealer reporting. This
                                             opposition to the dealer reporting                          Response: It is possible that many                 analysis was completed under the
                                             measure, indicating that it would                        affected dealers, especially smaller                  authority of the Paperwork Reduction
                                             impact about 86 small dealers in Maine.                  operations, do not convey a 40–percent                Act (OMB Control Number 0648–0229).
                                             ME DMR is collecting trip-level data                     markup on their product. ME DMR                       NMFS based the burden estimates on
                                             from dealers on a monthly basis and                      made these comments based on                          the data available from the current pool
                                             believes that weekly electronic reporting                responses to an ‘‘informal survey’’ of                of Federal seafood dealers who are
                                             requirements would be too burdensome                     Maine dealers but it is not known how                 already required to submit weekly
                                             on dealers who do not have access to                     many dealers ME DMR canvassed or the                  electronic reports. The analysis
                                             the Internet or to a computer and are                    size of their respective operations. The              estimated the reporting burden for each
                                             now able to provide this data on paper                   NMFS analysis of impacts is based on                  weekly transaction to be about 4
                                             trip tickets to fulfill state requirements.              business transaction information                      minutes to populate and submit the
                                                Response: NMFS understands that                       acquired from Federal dealer data which               electronic data files. The reporting costs
                                             Maine lobster dealers have recently                      is the best information available for                 are based on a respondent wage of
                                             begun reporting trip level transactions                  assessing the impacts of Federal dealers.             $18.88 per hour, with the overall annual
                                             to ME DMR on a monthly basis.                            NMFS understands that this data may                   burden for all 148 affected dealers
                                             Although a Federal electronic dealer                     not be reflective of the entire universe              estimated at 539 hours, costing $10,171.
                                             reporting requirement would only                         of Federal lobster dealers which vary in              NMFS realizes that the time needed to
                                             impact a minority of lobster dealers                     size and sales volume. Consequently, if               complete and upload the reports may be
                                             (estimated to be 29 percent of all                       all Federal dealers report to NMFS in a               higher for some dealers who may not be
                                             Federal lobster dealers), a large portion                consistent fashion, then the assessment               familiar with the electronic programs.
                                             of the 29 percent come from Maine (88                    of future impacts on dealers may more                 However, NMFS staff will work with all
                                             of the 148 non-reporting Federal lobster                 accurately reflect the overall range of               dealers to assist them in meeting their
                                             dealers are based in Maine, based on                     affected businesses.                                  reporting requirements, consistent with
                                             NMFS permit data). At the same time,                        The potential impact that the cost of              past practices.
                                             36 dealers in Maine are successfully                     acquiring a computer and maintaining                     Although 148 Federal lobster dealers
                                             reporting on an electronic basis.                        Internet access would have on affected                will be affected by the electronic dealer
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                                             However, as the largest lobster                          Federal dealer business income is                     reporting requirement, NMFS believes
                                             harvesting state by far, Maine harvest                   uncertain. However, potential impacts                 that only a small, albeit unknown,
                                             data is critical to ensure the responsible               to lobster dealers with no other Federal              number will need to purchase both a
                                             management of the fishery and                            permits could be assumed to be similar                computer and acquire Internet service to
                                             comprises a major component of the                       to Federal dealers who are currently                  comply with the new reporting
                                             overall universe of Federal harvest data                 subject to mandatory reporting whose                  standards. Further, only one dealer


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                                             37538             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             commented that the costs associated                      of acquiring the computer and Internet                electronic dealer reporting requirements
                                             with purchasing the necessary                            service should not be overlooked and                  to all Federal lobster dealers will
                                             equipment would be too expensive.                        may, in fact, reflect a more current and              provide a consistent framework for
                                             However, to further address concerns                     realistic estimate of the costs associated            Federal dealer data submission to assist
                                             with costs to Federal dealers associated                 with this action. Generally, in                       NMFS in fisheries policy decisions and
                                             with acquiring the necessary technology                  consideration of the more recent cost                 will facilitate error checking and
                                             to comply with electronic reporting,                     query, if one considers the cost of a                 reporting compliance checks. On
                                             NMFS reassessed its cost estimates by                    computer to be about $400 and the                     balance, NMFS anticipates that the
                                             investigating computer pricing in May                    annual cost of Internet service to be                 longer term benefits will outweigh the
                                             2009. The investigation revealed that                    $240 (assuming the $20 per month                      shorter term impacts. Further, the
                                             the costs for a computer as presented in                 charge and not the lowest possible                    transition to an electronic reporting
                                             the initial NMFS analysis are probably                   charge) then the annual cost could be                 format is expected to ease the cost and
                                             overestimated and, more than likely,                     about 50 percent less than NMFS has                   time burdens to dealers, states and the
                                             represent a high-end, worst-case                         estimated in the initial estimation. More             Federal Government as users become
                                             scenario of potential cost to affected                   specifically, the cost to pay in full for a           more adept at electronic reporting and
                                             Federal lobster dealers. Based on the                    brand new computer and the annual                     if states decide to accept Federal dealer
                                             information obtained through the new                     Internet service charge would be                      reports in satisfaction of state
                                             cost investigation, a new desk-top                       approximately $640 or about $53 per                   requirements for Federal dealers with
                                             personal computer system can be                          month, compared to the initial estimate               state dealer permits.
                                             purchased for as little as $272. This is                 of $1,232 or about $103 per month.                       Comment 8: A representative of a
                                             a price for a system with specifications                    Comment 7: ME DMR commented                        federally permitted wholesale lobster
                                             that reflect the most current technology                 that some affected dealers from Maine                 dealer who purchases lobster
                                             with electronic capabilities (speed and                  may not have the appropriate software                 exclusively from other dealers requested
                                             memory) which far exceed what is                         or other capabilities to upload the                   that NMFS clarify whether the trip level
                                             needed for the purposes of electronic                    information to SAFIS.                                 reporting requirements would apply to
                                             dealer reporting. The pricing query                         Response: NMFS acknowledges that                   dealer-to-dealer transactions.
                                             revealed the availability of 17 models of                some unknown, but likely small,                          Response: The trip-level electronic
                                             desktop computer systems that range in                   number of affected dealers may not have               dealer reporting requirements apply to
                                             price from $272 to $403 with sufficient                  the appropriate electronic capabilities at            first-point-of-sale transactions between
                                             technology such as 1.60 GHz, 1 GB                        the current time to facilitate the                    federally permitted lobster vessels and
                                             RAM, 160 GB hard drive                                   submission of electronic reports.                     federal lobster dealers. The trip level
                                             (www.pricescan.com). Further, it is                      However, on balance, NMFS believes                    information is reflected in the dealer
                                             expected that the cost of purchasing a                   that acquiring the data in an electronic              reports which would document the
                                             used computer would likely be even                       format will provide long-term benefits                dealer’s purchase from each vessel.
                                             less, especially since old computers                     for the management of the resource and                Lobster sold by those dealers to other
                                             usually require a disposal fee,                          improve the usefulness of the data,                   dealers or to other establishments would
                                             prompting many who have upgraded                         consistent with the recommendations                   not need to be reported by either the
                                             their systems to attempt to sell their                   for improved coastwide fishery                        dealer or the recipient of the lobsters
                                             used computer equipment rather than                      dependent data in the 2005 stock                      since the purchases would already be
                                             pay for disposal. These figures reveal                   assessment peer review. Understanding                 accounted for.
                                             the potential for substantially lower                    that a subset of affected dealers may not                Comment 9: Two dealers from Maine
                                             costs than the initial NMFS estimates of                 have the necessary technological means,               responded that the data NMFS collects
                                             about $580.                                              NMFS has postponed the electronic                     from a mandatory dealer reporting
                                                NMFS also re-assessed the costs                       reporting requirement for the 148                     program will be flawed because the data
                                             associated with Internet service,                        Federal lobster dealers who previously                set will not include the several hundred
                                             particularly in Maine where the                          have not been required to report to                   dealers that have state dealer licenses
                                             majority of the affected Federal lobster                 NMFS. The delay until January 1, 2010,                but no Federal dealer permit. Similarly,
                                             dealers do business. The inquiry                         of the weekly electronic reporting                    ME DMR quoted the NMFS proposed
                                             revealed that Internet service could be                  requirements, will allow these dealers                rule for this action wherein it states that
                                             attained throughout Maine at a cost of                   some additional time to adjust their                  NMFS is proposing that all Federal
                                             about $20 per month. Even more                           business practices to mitigate the                    dealers report because such a
                                             remote, down-east locations such as                      impacts of electronic reporting. During               requirement would ‘‘...assist in
                                             Machias have access to Internet service                  that time, NMFS will inform the                       providing a more comprehensive and
                                             providers offering dial-up Internet                      affected dealers of the specifics of the              consistent coastwide accounting of
                                             service for as low as $14.95 per month.                  reporting systems. Additionally, due to               lobster harvest data...’’. ME DMR and
                                             This equates to annual Internet service                  this specific situation, affected dealers             the dealers who commented point out
                                             costs of between $180 and $240,                          will have the opportunity to acquire the              that, in spite of mandatory reporting for
                                             compared to the more conservative                        necessary software packages from a                    Federal permit holders, NMFS will not
                                             initial NMFS estimates of about $652 or                  NMFS contractor at no charge to the                   obtain a comprehensive data set of
                                             approximately $54 per month.                             dealer.                                               lobster landings because the
                                                NMFS stands by its initial estimates                     NMFS is aware that the costs                       requirements fail to include lobster
                                             of costs to Federal lobster dealers                      associated with the electronic reporting              dealers with only a state and not a
                                             associated with the electronic reporting                 requirements will vary for some affected
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                                                                                                                                                            federal dealer permit and thus not be
                                             requirements which, on balance, are not                  dealers, and those costs may be higher                required to report.
                                             perceived to be overly intrusive to the                  for some businesses than the NMFS                        Response: To clarify, NMFS intends
                                             majority of dealers since most are likely                estimates, although it is difficult to                to obtain a ‘‘comprehensive and
                                             to have a computer and Internet service                  envision it being significantly so based              consistent’’ set of electronic data from
                                             already. However, these more recent                      upon the best available present                       all Federal dealers, not all dealers coast
                                             investigations of the economic impacts                   information. Expanding the weekly                     wide. The intent of this Federal data


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37539

                                             collection program is to obtain data on                  data through the SAFIS system, but only               in place. Specifically, the maximum size
                                             lobster purchased by Federal dealers, a                  after it is sent to ME DMR by the dealers             in Area 4 will decrease from 5 1/2
                                             statistic that is not currently available to             on a monthly basis, keypunched into an                inches (13.97 cm) to 5 1/4 inches (13.34
                                             NMFS in a simple, common, or real-                       electronic system by ME DMR staff and                 cm) and will now include both male
                                             time capacity. NMFS is not using the                     then, at some later date, uploaded onto               and female lobster. Finally, one
                                             data to estimate the overall coastwide                   SAFIS. The time lag and inconsistency                 lobsterman recommended that a 6–inch
                                             catch, although a consistent and                         in reporting delays the availability of               (15.24–cm) maximum size be
                                             commonly reported Federal dealer                         the data and decreases its utility in                 implemented coastwide.
                                             dataset will certainly assist in stock                   management and policy decisions.                         Response: NMFS understands the
                                             assessments and other resource-wide                         Comment 10: One lobster industry                   view points on all sides of this issue as
                                             needs. The states will continue to                       association wrote in favor of the                     expressed by these commenters. One
                                             provide the data from state-only dealers                 broodstock protection measures,                       commenter believes even more stringent
                                             into the SAFIS system which is                           including the expansion of these                      regulations are necessary, another feels
                                             designed to hold the data for all lobster                measures to the Outer Cape                            that the fishery is already too restricted,
                                             landed coastwide and used for the stock                  Management Area. The association,                     and a third states the need for a
                                             assessments and other cooperative                        representing a large portion of both the              consistent maximum size coastwide.
                                             interjurisdictional management                           offshore and coastal lobster industry                    Lobster management is complicated
                                             purposes. Overall, a consistent Federal                  approves of these measures because of                 by several factors. First, it requires the
                                             lobster dealer reporting system will                     the benefits of protecting large                      management of three distinct stock
                                             improve the data available to NMFS and                   broodstock lobsters, and because                      units, each with its own stock
                                             will enhance its utility for internal and                including the Outer Cape will provide                 rebuilding needs. Second, these stock
                                             shared management and policy                             additional benefits by protecting                     areas include either all, or portions, of
                                             purposes.                                                lobsters that migrate in and out of the               multiple management areas. There are
                                                NMFS is implementing the electronic                   Outer Cape Area.                                      multiple jurisdictions - both state and
                                             dealer reporting requirement because,                       Response: NMFS agrees and believes                 Federal - which must implement and
                                             under the current scenario, NMFS does                    that the broodstock measures set forth in             enforce the differential area-specific
                                             not have comprehensive, real-time data                   this final rule provide a balanced                    management measures in place in the
                                             on lobster catch from either the full                    approach for protecting lobster                       Commission’s plan. Additionally, there
                                             complement of Federal harvesters or                      broodstock across and within                          are several different sectors of the
                                             Federal dealers readily available in a                   management and stock areas. Further,                  fishery - a nearshore fishery, offshore
                                             consistent format. Since the Federal                     the measures will complement the                      fishery, a directed trap fishery, and
                                             reporting requirements are currently                     Commission’s plan and address efforts                 multiple non-trap sectors that rely on
                                             determined by the type of permits a                      to improve broodstock protection as                   lobster as a bycatch. All of these
                                             vessel or dealer holds, and not                          recommended in the 2005 stock                         important factors influence and
                                             mandated by a random stratified or                       assessment peer review.                               complicate the management of the
                                             other statistically sound means,                            Comment 11: Several Area 3                         lobster resource.
                                             extrapolating the data from a portion of                 lobstermen and a lobster industry                        Overall, NMFS embraces the concept
                                             the industry to derive total coast-wide                  association representing offshore                     of cooperative management and the
                                             Federal landings, landings by area or                    lobstermen wrote in favor of mandatory                area-based management of the lobster
                                             other useful statistics is difficult to                  dealer reporting, the modified v-notch                fishery. This concept allows
                                             accomplish with certainty.                               definition and the Area 3 maximum size                stakeholders to have input in how their
                                                Mandating dealer reports from all                     requirements.                                         segment of the fishery is managed.
                                             Federal lobster dealers will address a                      Response: NMFS agrees and believes                 However, a balance must be achieved
                                             gap in the current Federal catch data                    that the maximum size and broodstock                  that allows for the responsible
                                             resulting from a lack of mandatory                       protection measures provide a measure                 management of the resource in
                                             vessel and dealer reporting. About 61                    of protection to GBK and SNE lobster                  consideration of the impacts on the
                                             percent of all Federal lobster vessels                   broodstock with minimal impact to the                 industry. On balance, given the multi-
                                             report their landings on a trip-by-trip                  industry. These measures will also                    faceted nature of the industry, NMFS
                                             basis to NMFS through the Federal                        facilitate enforcement and resource                   believes that the broodstock measures in
                                             Vessel Trip Report (VTR) system and                      evaluation efforts by aligning                        this final rule will best complement
                                             about 71 percent of Federal dealers                      management measures on a stock-wide                   Addendum XI of the Commission’s plan
                                             report electronically to NMFS. However,                  basis. Electronic trip-level reporting for            which is intended to protect lobster and
                                             at any given time, NMFS does not have                    Federal dealers will assist NMFS in its               enhance the SNE stock. With this rule,
                                             an internal data set that fully accounts                 role in managing the fishery and will                 affected management areas will have a
                                             for current lobster purchases by dealers                 improve the quality of Federal lobster                maximum size that corresponds to the
                                             from Federal vessels. Specifically, 77                   data for internal and cooperative                     needs of the resource and the industry
                                             percent (about 1,000 lobster vessels) of                 management purposes.                                  working in those areas, consistent with
                                             the Federal lobster vessels which are not                   Comment 12: One Area 1 lobsterman                  limits already in place and enforced at
                                             required to report landings to NMFS                      agreed with the broodstock protection                 the state level. Although broodstock
                                             because they hold only a Federal lobster                 measures established in this final rule               measures are expanded to the Outer
                                             permit and no other federal permits,                     but recommended even more restrictive                 Cape Area beyond the scope of the
                                             hail from Maine ports. Moreover, more                    measures such as a 5–inch (12.7–cm)                   Commission’s plan, NMFS believes that
                                             than half of the Federal lobster dealers                 maximum size and a zero-tolerance v-                  these measures complement the plan,
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                                             who are not reporting are from Maine.                    notch requirement coast-wide. A mid-                  will benefit the resource and will
                                             Therefore, this represents a component                   Atlantic lobsterman who fishes in Area                facilitate management and enforcement
                                             of both the harvester and dealer sectors                 4 is opposed to the implementation of                 efforts within and across stock and
                                             from the most prolific lobster-producing                 a more restrictive maximum size                       management areas since both the Outer
                                             state that is not reporting landings to                  requirement for that area because it will             Cape and Area 3 overlap into all three
                                             NMFS. NMFS eventually can access this                    add to the numerous restrictions already              stock areas.


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                                             37540             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                Comment 13: Thirty-two commenters                     sufficient to justify less restrictive v-             DMF sea sampling data before making a
                                             wrote in opposition to the expansion of                  notch measures due to the potential for               final decision on the management
                                             the broodstock protection measures into                  higher rates of v-notched lobster and                 measures associated with this
                                             the Outer Cape lobster management                        decreased landings. Maintaining the                   rulemaking. NMFS does not take lightly
                                             area. Among the reasons for the                          initial intent to implement the 1/8–inch              the advice of the LCMTs and other
                                             opposition, the commenters stated that                   (0.32–cm) v-notch will allow for                      industry advisors as demonstrated in
                                             the estimates for impacts in catch by                    consistency within the Outer Cape Area                the consideration of the expanded Outer
                                             NMFS were underestimated. Some                           itself as well as across the GBK stock                Cape data in the evaluation of this Final
                                             commenters suggested that the since the                  area. It will also provide some                       Rule.
                                             broodstock measures were not part of                     additional level of protection to lobster                Comment 14: A Massachusetts
                                             those approved in the Commission’s                       in the GOM sector of the Outer Cape                   Congressman commented that NMFS
                                             plan for the Outer Cape Area, their                      fishery beyond the status quo, albeit not             should postpone the broodstock rule
                                             inclusion in this final rule undermines                  as extensive as those imparted upon                   changes for six months and form a
                                             the utility and integrity of the LCMT                    Area 1 fishermen.                                     working group consisting of NMFS,
                                             process.                                                    NMFS acknowledges that expansion                   state and industry representatives to
                                                Response: NMFS used the best                          of the broodstock measures to the Outer               further assess the impacts of these
                                             available data to determine the                          Cape Area was not part of the                         measures on the Outer Cape lobster
                                             biological, social and economic impacts                  Commission’s plan and not                             industry. Similarly, commenters
                                             associated with this action. The impact                  recommended for implementation by                     representing the Outer Cape lobster
                                             estimates were largely based on v-                                                                             industry requested that NMFS review
                                                                                                      the Outer Cape LCMT, but that does not
                                             notching and sea sampling data                                                                                 2008 sea sampling data collected by the
                                                                                                      mean that NMFS must implement only
                                             collected consistently in the Outer Cape                                                                       MA DMF to better assess the economic
                                                                                                      Commission-sanctioned management
                                             Area since 1981 by the MA DMF with                                                                             impacts resulting from this final rule.
                                                                                                      measures. Section 803(b) of the Atlantic                 Response: NMFS agrees and
                                             industry cooperation. As necessary,
                                                                                                      Coastal Act states that the Secretary of              postponed the rulemaking to allow for
                                             NMFS observer data and other relevant
                                                                                                      Commerce may implement regulations                    the review of additional sea sampling
                                             research was referenced to estimate the
                                                                                                      to govern fishing in federal waters that              data, which was not made available by
                                             impacts of the broodstock measures. At
                                                                                                      are both compatible with the effective                MA DMF until February 2009. In
                                             the industry’s request, more recent and
                                                                                                      implementation of a coastal fishery                   consideration of that data and public
                                             expanded sea sampling data from the
                                             Outer Cape was also considered in this                   management plan (in this case, the                    comments, NMFS has postponed action
                                             final rule.                                              Commission’s ISFMP) and consistent                    in the Outer Cape for a full year to allow
                                                Upon review of the additional data                    with the national standards set forth in              the industry to adjust to the new
                                             MA DMF sea sampling data, there was                      the Magnuson-Stevens Act. As such,                    requirements.
                                             no information to significantly alter the                NMFS is obligated to support the                         As explained in detail in the
                                             basis for selection of the preferred                     effective implementation of the                       Background section of this final rule,
                                             alternatives or the expansion of the                     Commission’s lobster plan but retains                 NMFS staff attended a meeting
                                             broodstock measures to the Outer Cape                    the authority to enact compatible                     consisting of Outer Cape lobstermen, a
                                             Area. The maximum size data from the                     regulations in Federal waters as long as              representative of the MA DMF, and
                                             MA DMF report indicated that no                          those regulations are consistent with the             representatives of the state legislature
                                             lobsters over the intended 6 3/4–inch                    MSA National Standards. Therefore,                    and local media in Chatham, MA on
                                             (17.15–cm) maximum size were                             even though the broodstock measures                   November 10, 2008. NMFS listened to
                                             encountered during any of the 2008 sea                   were not part of the Outer Cape                       the concerns of the industry and
                                             sampling trips.                                          component of the Commission’s plan,                   explained the rationale for the proposed
                                                Certainly, the information regarding                  NMFS believes, based on the analysis of               broodstock protection measures. Many
                                             the estimates of the v-notch in the                      the best available and most recent data,              in attendance stated that the NMFS
                                             Provincetown fleet due to the location                   that the expansion of the broodstock                  estimates of lost catch resulting from the
                                             of the fishing grounds largely within                    measures to the Outer Cape Area will                  expansion of the broodstock measures
                                             Area 1 was notable, suggesting a higher                  support the Commission’s intent to                    into the Outer Cape area were
                                             proportion of v-notched lobster than in                  protect lobster broodstock in the SNE                 understated and warranted further
                                             the more southerly parts of the Outer                    stock areas as intended in Addendum XI                investigation. The industry commented
                                             Cape Area. In fact, this component of                    and will extend that barrier of                       that more recent sea sampling in the
                                             the data underscored the relevance of                    protection to include the GBK stock                   Outer Cape area was underway to more
                                             consistent protections for broodstock                    area. NMFS further acknowledges that                  specifically address the impacts of these
                                             lobster across management areas sharing                  the LCMTs serve a valuable role in                    measures on the Outer Cape lobster fleet
                                             a common stock; in this case the GOM                     recommended measures which reflect                    and requested that NMFS consider this
                                             stock (see response to Comment 14).                      the fishing practices and nuances of                  new data when determining the course
                                             The limitations of the Provincetown                      their respective fishing communities                  of the final rule.
                                             data such as its short time series, lack                 and the associated lobster resource.                     Upon review of the expanded sea
                                             of measured v-notches, and the strong                    However, this is an advisory role and                 sampling data, NMFS found nothing to
                                             words of caution in the MA DMF report                    NMFS maintains the discretion to enact                suggest that a 6 3/4–inch (17.15–cm)
                                             relevant to its application across the                   regulations to support the Commission’s               maximum size would substantially
                                             entire Outer Cape Area limit its utility                 plan. See Description of the Public                   impact landings in the Outer Cape
                                             in forming any significant conclusions.                  Process under SUPPLEMENTARY                           lobster fishery. In fact, review of the MA
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                                             Thus the additional MA DMF sea                           INFORMATION for more details on the role              DMF expanded sea sampling data
                                             sampling data on the Provincetown fleet                  of the LCMTs, NMFS and the                            revealed that the impacts could be even
                                             is not sufficient to cause NMFS to                       Commission. Furthermore, NMFS                         less than initially determined in the
                                             implement either more restrictive v-                     listened to the industry, specifically the            NMFS EA for this action. Similarly, the
                                             notch measures commensurate with                         Outer Cape LCMT, waiting to review                    findings of the expanded MA DMF sea
                                             those in the GOM stock area. Nor is it                   and consider the expanded 2008 MA                     sampling data collection program were


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37541

                                             consistent with the NMFS estimates for                   standard for the Outer Cape until July 1,             three stock areas. Area 3 is subject to
                                             catch reductions associated with the                     2010.                                                 these management measures as part of
                                             implementation of a 1/8–inch (0.32–cm)                      Comment 15: Two state legislators                  the Commission’s SNE stock rebuilding
                                             v-notch standard for the Nauset and                      and some industry commenters wrote in                 initiatives and including the Outer Cape
                                             Chatham regions of the Outer Cape.                       opposition to the expansion of the                    Area will ensure that stock protection
                                                The data collected during the 14 sea                  broodstock measures into the Outer                    measures occurring in Area 3 and other
                                             sampling trips out of Provincetown                       Cape Area, stating that the measures                  areas will not be undermined due to a
                                             provided an interesting perspective on                   could result in a 30–percent loss in                  lack of consistent measures in the Outer
                                             the nature of the lobster fishery in the                 catch for the Outer Cape fleet.                       Cape Area which shares all three stocks
                                             northern portion of the Outer Cape                          Response: Initial estimates from the               with Area 3.
                                             Area. Specifically, the MA DMF                           EA, based on NMFS observer data,                         Based on observer data, nearly 17
                                             expanded study indicates that the                        indicate that less than 5.7 percent of the            percent of the lobsters encountered in
                                             Provincetown fleet is essentially fishing                lobster harvested by non-trap vessels in              GBK traps were between 5 inches (12.7
                                             on the GOM lobster stock and the                         the GBK stock area is larger than the                 cm) and 6 3/4 inches (17.15–cm)
                                             majority of the sea sampling trips (87                   proposed maximum carapace length of                   carapace length, and this was true for
                                             percent) occurred in the Outer Cape/                     6 3/4 inches (17.15 cm), while only                   about 41 percent of the non-trap
                                             Area 1 overlap area, where fishermen                     about 0.5 percent of the trap fishery                 observances of lobster in GBK. NMFS
                                             from these two adjacent management                       catch is expected to be impacted in the               considered this and concluded that a 5–
                                             areas fish side by side but are subject to               GBK portion of the Outer Cape. Review                 inch (12.7–cm) maximum size would be
                                             different maximum size and v-notch                       of the 2008 expanded sea sampling data                too restrictive on the Outer Cape fishery
                                             standards. Under the current regulatory                  provided by the MA DMF revealed                       and inconsistent with the management
                                                                                                      similar results. In fact, in 28 sea                   measures set forth for the GBK stock,
                                             framework, Area 1 lobstermen are
                                                                                                      sampling trips - during the entire 2008               which accounts for the largest
                                             subjected to more restrictive maximum
                                                                                                      sea sampling season - not one lobster                 component of the Outer Cape Area.
                                             carapace length and v-notching
                                                                                                      was observed with a carapace length in                   Comment 16: MA DMF stated that
                                             requirements than those in the Outer
                                                                                                      excess of 6 3/4 inches (17.15 cm).                    they do not dispute the reasons for the
                                             Cape Area. This phenomenon highlights                       NMFS agrees that Outer Cape                        expansion of the broodstock measures
                                             one of the intentions of this rulemaking                 lobstermen are relying heavily on                     into the Outer Cape fishery because
                                             which aims to provide a more consistent                  ‘‘large’’ lobsters as the Outer Cape is               doing so improves regulatory
                                             and enforceable set of broodstock                        comprised of individual lobster that are              consistency and compliance and would
                                             measures within and across                               larger, on average, than the minimum                  provide protection to GBK lobster which
                                             management areas, especially among                       legal size. This trend has been                       is the dominant stock in the Outer Cape
                                             those areas which fish on a common                       documented by MA DMF researchers as                   Area; a stock protected by similar
                                             lobster stock. Although it appears that a                cited in the EA. As such, the Outer Cape              measures in Area 3. MA DMF cautioned
                                             large proportion of Provincetown’s                       Area is known for generally landing a                 that this action could immediately
                                             lobster fishery may involve the GOM                      ‘‘larger-sized’’ lobster. However,                    impact Outer Cape lobstermen,
                                             stock, NMFS did not fully analyze the                    lobstermen, in the general course of                  especially those in the non-trap sector,
                                             impacts of applying Area 1 broodstock                    their fishing operations, are likely only             and recommended that NMFS postpone
                                             measures to that segment of the Outer                    measuring lobsters against the legal                  any final action until the expanded
                                             Cape fishery. Limitations in the MA                      lobster minimum size gauge and are not                Outer Cape sea sampling data is
                                             DMF sampling design as illustrated in                    measuring the actual carapace length of               considered.
                                             the MA DMF report caution the use of                     the lobsters. Until now, lobstermen in                   Response: NMFS agrees. Review of
                                             this data for making assumptions on the                  the Outer Cape Area have not had a                    the expanded sea sampling data
                                             entire Outer Cape Area. It is expected                   maximum size requirement and have                     provided perspective on the evaluation
                                             that this part of the Outer Cape Area                    needed only to assure that the lobsters               of the impacts of these new measures to
                                             would have a higher instance of v-                       they harvest are larger than the                      the trap sector of the fishery but the MA
                                             notched lobster due to its overlap with                  minimum size. Therefore, many of the                  DMF investigations did not include any
                                             the Gulf of Maine Area 1 fishery                         lobsters they encounter at sea and                    additional data on the non-trap fishery.
                                             wherein Area 1 lobstermen are required                   believe to be over 6 3/4 inches (17.15                As previously stated, NMFS expects the
                                             to v-notch all egg-bearing lobsters and                  cm) may not be that large and may                     resulting losses in catch to be higher for
                                             are subject to a more restrictive zero-                  remain legal for harvest under the new                the non-trap fishery, consistent with the
                                             tolerance v-notch definition.                            maximum size requirements. Notably,                   estimations in the NMFS EA for this
                                                Provincetown fishermen are likely to                  any lobster with a carapace measuring                 action.
                                             endure more impacts due to the 1/8–                      more than 5 inches (12.7 cm) may be                      Comment 17: The two state legislators
                                             inch (0.32–cm) v-notch requirements                      considered a ‘‘large’’ lobster and                    indicate that the measures have no basis
                                             than are fellow lobstermen in more                       without actually measuring a lobster, it              in science, citing Section 4.2.3.5 of the
                                             southerly portions of the Outer Cape                     is difficult to estimate its actual                   EA which states, in part, ‘‘...there are no
                                             Area. In contrast, the impacts of this                   carapace length. This could lead to                   expected impacts or benefits to
                                             rule are likely to be far less than if the               misconceptions among the fleet of the                 protected resources directly attributable
                                             northern portion of the Outer Cape were                  actual impacts in terms of lost catch                 to the maximum lobster size
                                             subject to the Area 1 broodstock                         resulting from a 6 3/4–inch (17.15–cm)                requirements...’’, and Section 4.3.3.1
                                             measures. On balance, and given the                      maximum carapace length regulation.                   which states, ‘‘Limited data are
                                             uncertainties associated with one year’s                    When analyzing the potential impacts               available regarding the number or
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                                             worth of sampling data, but also                         of a maximum size restriction for lobster             percentage of lobster that may be
                                             considering the potentially higher losses                harvested in the Outer Cape, NMFS                     conserved if the more restrictive v-notch
                                             in catches for the northern portion of                   chose the standard equal to that                      were to expand into the Outer Cape
                                             the Outer Cape Area, NMFS has                            implemented for Area 3, since both                    Area...broodstock measures have an
                                             deferred the effective implementation of                 areas are largely within the GBK stock                inherent uncertainty since so many
                                             the 1/8–inch (0.32–cm) v-notch                           area, although both areas overlap all                 environmental factors affect larval


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                                             37542             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             survival...and recruitment....these                      measures will assure consistent                       be realized. Further, this action could
                                             factors...make it difficult to assure Outer              application on a stock-wide basis.                    reduce the potential for more directed
                                             Cape Area participants a stake in the                       Comment 18: Some Outer Cape                        fishing effort into the Outer Cape Area
                                             economic benefits that would accrue                      industry members expressed concerns                   that could occur if that area remained
                                             due to the proposed broodstock                           that the vessels sampled by MA DMF in                 the only management area not governed
                                             measures.’’                                              the expanded sea sampling program are                 by a maximum size requirement and
                                                Response: As a preliminary matter,                    biased against the harvest of larger                  bound to a less restrictive definition of
                                             given the low observance rate of                         lobster since these vessels fish traps                a legal v-notch.
                                             oversized lobsters present in Outer Cape                 with smaller entrance heads than are                     Comment 20: An Outer Cape lobster
                                             traps over the years as highlighted by                   routinely deployed by Outer Cape                      fisherman wrote in favor of expansion of
                                             the recently enhanced MA DMF sea                         fishermen.                                            the maximum size requirements into the
                                             sampling program data, some may                             Response: MA DMF staff did not                     Outer Cape Area, specifying that the
                                             question the biological need for this                    measure the entrance heads on the traps               maximum carapace lengths consistent
                                             management measure. However, the                         fished during the sea sampling trips so               with those established for the offshore
                                             inclusion of the measure is consistent                   there is no way of verifying this statistic,          fishery, are appropriate. The commenter
                                             with that for the offshore fishery and                   and thus no means of considering it in                added that the maximum size will
                                             could protect some lobster that migrate                  the analysis of management alternatives.              protect large lobster and accordingly,
                                             inshore from Area 3. Aligning the Outer                  MA DMF researchers have determined,                   foster recruitment, and may help to
                                             Cape broodstock measures with those in                   based on 27 years of sea sampling data                increase the lobster price by lowering
                                             Area 3 is reasonable given the fact that                 that, unlike surrounding management                   the supply of large lobsters on the
                                             both areas overlap all three stock areas                 areas, more than 90 percent of the total              market.
                                             and rely mostly on the GBK stock.                        catch in the Outer Cape Area is                          Response: NMFS agrees that applying
                                             Additionally, the inclusion of the                       comprised of individuals that are larger              the maximum sizes to the Outer Cape,
                                             maximum size limit to the Outer Cape                     on average than the minimum legal size.               consistent with those for Area 3, is
                                                                                                      Accordingly, the Outer Cape Area is                   appropriate given that Area 3 and a
                                             Area would reduce confusion and
                                                                                                      known for generally landing a ‘‘larger-               large component of the Outer Cape Area
                                             facilitate enforcement. Equating a
                                                                                                      sized’’ lobster. Because of this areal                fall within the GBK stock area.
                                             maximum size in the Outer Cape to that                                                                            Expanding the Area 3 maximum size
                                                                                                      trend, there is no reason to expect that
                                             of Area 1 (5 inches (12.7 cm)) would be                                                                        requirements to the Outer Cape Area
                                                                                                      Outer Cape lobstermen would fish with
                                             much more restrictive to the industry as                                                                       will support efforts to protect
                                                                                                      traps that do not select for larger
                                             NMFS observer data indicate that over                                                                          broodstock on a stock-wide basis, as the
                                                                                                      lobsters. This does not mean that larger
                                             16 percent of the trap harvest and about                                                                       Outer Cape Area is known as a corridor
                                                                                                      lobster are not present in the Outer Cape
                                             41 percent of the non-trap lobster                                                                             for lobster moving between inshore and
                                                                                                      Area, although MA DMF sea sampling
                                             harvested in the GBK stock area fall                                                                           offshore areas and between stock and
                                                                                                      data since 1981 indicates that a
                                             between 5 inches (12.7 cm) and 6 3/4                     relatively low percentage of lobsters                 management areas. As such, this action
                                             inches (17.15 cm) carapace length.                       over 6 3/4 inches (17.15 cm) are caught               will limit the potential to undermine the
                                                To clarify with respect to Section                    in traps. Consequently, as indicated by               maximum size broodstock protection
                                             4.2.3.5, ‘‘protected resources’’ is a term               a review of the NMFS observer data for                benefits of these proposed measures if
                                             of art that relates to animals protected                 GBK, the non-trap fishery is expected to              lobster are protected in one area (i.e.,
                                             under either or both of the Marine                       suffer more losses due to the maximum                 caught, but released back to the sea),
                                             Mammal Protection Act and Endangered                     size regulations than the trap fishery                only to have that lobster caught and
                                             Species Act. Therefore, this excerpt                     since non-trap gears are not as size                  kept after transiting into another area. In
                                             from the EA indicates, quite simply, that                selective and this sector of the industry             addition, at-sea enforcement would be
                                             the imposition of a maximum size                         may high-grade the catch over the                     significantly enhanced if the proposed
                                             requirement in the Outer Cape Area is                    course of a fishing trip, selectively                 broodstock measures are implemented
                                             not expected to impact whales or other                   retaining the largest lobsters caught.                in the relevant lobster management
                                             marine mammals, sea turtles or any                          Comment 19: A commercial lobster                   areas.
                                             species granted special statutory                        fishing industry association commented                   Comment 21: A representative of a
                                             protection.                                              in favor of the proposed maximum size                 recreational diving club wrote to
                                                Regarding Section 4.3.3.1, NMFS                       and v-notching requirements as                        express concerns over the passage of
                                             agrees that there is little information on               described in the proposed rule,                       Addendum XI wherein the Commission
                                             the percentage of lobster that may be                    including the expansion of those                      adopted the revised maximum sizes to
                                             conserved if the more restrictive v-notch                measures into the Outer Cape Area.                    include both male and female lobster.
                                             definition is applied to the Outer Cape.                    Response: NMFS agrees and believes                 This group submitted a proposal before
                                             The broodstock measures are intended                     that the implementation of the proposed               the Commission’s Lobster Management
                                             to protect lobster broodstock which are                  measures would be compatible with the                 Board after adoption of Addendum XI to
                                             known to travel in and out of the Outer                  Commission’s recommendations for                      request the recreational take of one
                                             Cape Area. Therefore, as the referenced                  Federal action and would reduce                       oversized lobster per trip by divers.
                                             passage suggests, the broodstock                         confusion on the part of the participants             Although discussed at several Board
                                             measures may benefit the lobster on a                    and regulatory agencies, and facilitate               meetings, both prior to and after
                                             stock-wide or regional level but there is                enforcement by aligning state and                     approval of Addendum XI, the proposal
                                             no way to guarantee or equate any such                   Federal lobster management measures.                  was not approved by the Board.
                                             benefits directly to the Outer Cape Area.                Additionally, by expanding the scope of                  Response: NMFS acknowledged the
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                                             The same is true for Area 3, since                       this action to include the Outer Cape                 recreational dive industry’s concerns
                                             lobsters in that area may move in and                    Area under the maximum size and v-                    about the impacts of maximum size
                                             out of the Outer Cape Area and                           notching requirements as proposed,                    regulations in Areas 4 and 5 beginning
                                             elsewhere. Therefore, given the                          some, albeit difficult to quantify, level             with a prior Federal rulemaking in
                                             propensity of lobsters to migrate across                 of protection to transient lobster moving             response to the Commission’s
                                             management and stock areas, these                        among different management areas may                  recommendations in Addenda II and III.


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37543

                                             Those addenda required the states to                     application of the standard to both male              liberal standards consistent with the
                                             implement a maximum carapace size for                    and female lobsters would make the                    Area 3 offshore fishery since the Outer
                                             the first time in Area 4 and Area 5 of                   regulation more consistent,                           Cape is known to fish on a larger-sized
                                             5 1/4 inches (13.34 cm) and 5 1/2 inches                 understandable, and enforceable.                      lobster and the majority of the Outer
                                             (13.97 cm) respectively, pertaining only                 Additionally, the maximum size                        Cape Area resides within the GBK stock
                                             to female lobster. In evaluating the                     restriction of 5 1/4 inches (13.34 cm)                area shared by both the Outer Cape and
                                             impacts of these measures, NMFS                          would still allow for the capture of large            Area 3.
                                             responded to the concerns of the mid-                    lobsters and NMFS has received no                        The commenters also state that the
                                             Atlantic recreational dive fishery which                 information to suggest that divers                    measures could result in undue
                                             tends to target large ‘‘trophy lobsters’’                currently diving for oversized lobster                financial hardship. NMFS expects that
                                             on wreck sites aboard charter and party                  would not dive for lobsters in excess of              the Outer Cape lobster industry will be
                                             vessels. It was determined by                            5 inches (12.7 cm) which would still                  impacted by this measure but, on
                                             canvassing state agencies that an                        remain legal under this final rule.                   balance, believes that the stock-wide
                                             extremely low number of lobster in                       Regardless of Federal action,                         broodstock protection, enforcement and
                                             excess of these new maximum sizes                        recreational divers are already bound by              resource assessment benefits outweigh
                                             would be taken by the recreational dive                  the proposed maximum size revisions                   the financial impacts. The impacts as
                                             sector, considering that most oversized                  by virtue of the states having approved               estimated in the EA were supported
                                             lobsters are likely taken in the deeper                  the restrictions of the Commission’s                  after review of the MA DMF expanded
                                             offshore areas along the continental                     Addendum XI.                                          2008 sea sampling data. The economic
                                             shelf in excess of 150 feet (46 meters)                     Comment 22: Some commenters say                    impacts are discussed in more detail in
                                             which is beyond the depth range of the                   that the Outer Cape Area is meeting its               the SUPPLEMENTARY INFORMATION section
                                             divers. Consequently, in consideration                   conservation goals and this final rule                and under Economic Impacts of the
                                             of the dive industry’s concerns and                      will cause unnecessary financial                      Selected Actions in the Classification
                                             given the small chance that a substantial                hardship for Outer Cape fishermen.                    section. NMFS has deferred the
                                             number of oversized lobsters would be                    Further, some dissenters state that the               implementation of these measures until
                                             taken in these management areas by the                   Outer Cape industry did not know about                July 1, 2010 to offset any economic
                                             dive sector, the NMFS final rule on this                 this issue prior to the publication of the            impacts and allow the industry more
                                             issue (71 FR 13027) allowed recreational                 proposed rule.                                        time to adjust to the new regulations.
                                             divers to possess one female lobster per                    Response: Outer Cape lobstermen fish                  NMFS heard the concerns of the
                                             trip in excess of the maximum carapace                   primarily on the GOM and GBK lobster                  Outer Cape industry at the November
                                             length in Area 4 and Area 5. Since then,                 stocks. These two stocks tend to be                   10, 2008, LCMT meeting in Chatham,
                                             the Commission adopted the more                          stable, but the 2005 stock assessment                 MA. NMFS staff addressed this concern
                                             stringent maximum sizes of Addendum                      raised concerns about high fishing effort             and stated that the general scope of
                                             XI which revised the maximum                             and high dependence on newly-                         measures was initially announced in the
                                             carapace measures for Area 4 and 5 to                    recruited lobster which could have                    ANPR for this action wherein NMFS
                                             be consistent at 5 1/4 inches (13.34 cm)                 impacts on the future stability of these              notified the public that broodstock
                                             and pertain both male and female                         stocks despite relatively high landings.              measures related to the
                                             lobster. Once these regulations became                   The Outer Cape Area does have an                      recommendations of the Commission in
                                             effective at the state level, the more                   approved effort management plan based                 Addendum XI were being considered.
                                             restrictive state regulations negated the                on state-level historical participation               The ANPR and proposed rule for this
                                             standing Federal allowance for                           under the Commission’s ISFMP.                         action were posted on the NMFS
                                             recreational divers.                                     However, the MA DMF expanded sea                      website along with a notice of
                                                Although NMFS had acknowledged                        sampling data from 2008 brings to light               availability informing the public of this
                                             the relatively minimal impacts on the                    the possibility that a component of the               action and how to comment and obtain
                                             lobster resource associated with                         Outer Cape fishery is occurring                       copies of the relevant documents. Some
                                             allowing the harvest of a single trophy                  predominantly in statistical area 514,                in attendance stated that they are
                                             lobster per recreational dive trip, NMFS                 which is part of the GOM stock.                       normally notified by mail of such
                                             believes that revising the maximum                       Therefore, it is unknown whether the                  actions. NMFS does not contact permit
                                             sizes in Areas 4 and 5 is the best                       Outer Cape effort control measures are                holders by mail regarding proposed
                                             alternative. Given the strong                            sufficient in addressing the effort issue             rules or ANPR publications. However,
                                             recommendations for broodstock                           in the GOM stock area. Statistical area               NMFS does have an email and fax
                                             protection in SNE in the 2005 stock                      514 was identified in the 2005 stock                  contact list for such actions. NMFS
                                             assessment peer review, and the                          assessment as an area of concern due to               received the contact information of
                                             continued poor condition of the SNE                      extremely high lobster trap fishing                   those in attendance expressing interest
                                             stock, NMFS will implement measures                      effort. Further, from a broodstock                    for electronic notification and NMFS
                                             that remain consistent with those                        perspective, the Outer Cape is the only               has included these individuals on the
                                             required under the Commission’s plan.                    management area that does not have any                list. Further, it should be stated that the
                                                Although NMFS acknowledges that                       broodstock protection measures in                     Fishery Management Councils, the
                                             the proposed regulation might have                       place. Given that the Outer Cape Area                 Commission, state agencies, and a wide
                                             some impact on recreational divers                       straddles all three lobster stocks and is             range of fishermen’s organizations and
                                             seeking so-called ‘‘trophy-sized’’ lobster,              a known migratory pathway for lobster                 media contacts were notified of prior
                                             NMFS believes that, on balance,                          from other management areas with                      publications relevant to this action.
                                             applying maximum sizes consistently to                   broodstock protection, it is reasonable to               Comment 23: One individual
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                                             male and female lobster is prudent. As                   apply some consistent standard to the                 commented that the v-notch
                                             a preliminary matter, maximum size                       Outer Cape Area. Failing to do so could               requirements make the lobster industry
                                             restrictions are known to protect larger                 undermine the ongoing broodstock                      more inefficient by increasing the
                                             lobsters which, according to the best                    protection measures in place in adjacent              discard rate and requiring harvesters to
                                             available scientific information, are                    management areas, affecting multiple                  spend more money on bait, fuel, labor
                                             more prolific breeders. Further,                         stocks. NMFS has applied the more                     and capital. The commenter suggests


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                                             37544             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             that more effective alternatives such as                 that is at least as deep as 1/8 inch (0.32            Mandatory Federal Lobster Dealer
                                             catch quotas or effort limitations be                    cm), with or without setal hairs.’’ This              Electronic Reporting
                                             implemented to control fishing effort at                 change in wording is considered minor,                   The Commission’s Expanded
                                             the desired fishing mortality rate.                      is within the scope of this rulemaking,               Coastwide Data Collection Program set
                                                Response: The commenter here                          and reflects the true intent of this action           forth in Addendum X is intended to
                                             suggests a paradigm shift in overall                     to support the Commission’s plan and                  increase the quality and quantity of
                                             management theory wherein                                effectuate interjurisdictional                        fishery-dependent and fishery-
                                             management would focus on input                          management of the lobster resource                    independent data collected at the state
                                             controls (e.g., trap numbers, limited                    through compatible broodstock                         and Federal level and sets guidelines for
                                             entry) rather than output controls (gauge                regulations.                                          data collection associated with dealer
                                             size, escape vent size requirements).
                                                                                                      Edit 2                                                and harvester reporting, sea sampling,
                                             The relative merit to such a theory is the
                                                                                                                                                            port sampling and fishery-independent
                                             subject of ongoing discussion within
                                                                                                         The final rule defers the effective                data collection programs. Consistent
                                             industry, academic and management
                                                                                                      implementation of the revised v-notch                 with the Commission’s
                                             circles. However, the Commission’s
                                                                                                      measure in the Outer Cape Area until                  recommendations in Addendum X,
                                             plan does consider effort as part of the
                                                                                                      July 1, 2010, whereas in the proposed                 NMFS, by way of this final rule, extends
                                             coast-wide lobster fishery management
                                                                                                      rule, the Outer Cape Area would have                  weekly, trip-level electronic reporting
                                             program. The Outer Cape industry has
                                                                                                      been subject to this measure thirty days              coverage to all Federal lobster dealers.
                                             already instituted such a plan as
                                             facilitated by the MA DMF which has                      after the publication of the final rule.              Formerly, if a seafood dealer held a
                                             allocated vessel specific trap allocations               Until July 1, 2010, the Outer Cape Area               Federal lobster dealer permit and no
                                             to qualified Outer Cape lobstermen.                      remains held to the 1/4–inch (0.64–cm)                other Federal seafood dealer permits,
                                             Similar programs are in place at the                     v-notch definition which served as the                that dealer was not required to report
                                             state level concerning the SNE stock and                 definition for a standard v-shaped notch              lobster or other seafood purchases to the
                                             NMFS is in rulemaking now to address                     prior to this rulemaking. Since the                   Federal Government. Based on the
                                             limited entry and trap transferability in                definition of a standard v-shaped notch               analysis completed for this action, 148
                                             multiple management areas, including                     now relates to a 1/8–inch (0.32–cm)                   Federal lobster dealers (29 percent of all
                                             the Outer Cape, as recommended by the                    notch effective with this final rule, a               Federal lobster dealers) fell in this
                                             Commission. Effort control is an                         new definition for the 1/4–inch (0.64                 category and, therefore, were not
                                             important component to assuring both                     cm) notch has been established in the                 previously subjected to Federal
                                             economic and biological sustainability                   regulations to cover the Outer Cape Area              reporting requirements. The other 71
                                             with respect to the lobster industry and                 through June 30, 2010. This measure is                percent of Federal lobster dealers have
                                             the resource. Output controls are also                   now referred to as a ‘‘One-quarter-inch               another Federal seafood dealer permit
                                             important and the two work hand-in-                      (1/4–inch) v-shaped notch,’’ and                      that requires routine reporting. Such
                                             hand by controlling both inputs and                      defined as ‘‘... a straight-sided triangular          dealers have been and will continue to
                                             outputs in the fishery. However, with                    cut, without setal hairs, at least 1/4 inch           be mandated to report all species
                                             respect to this action, the commenter’s                  (0.64 cm) in depth and tapering to a                  purchased, including lobster. The
                                             approach may fall beyond the scope of                    point.’’                                              reporting requirements for these dealers
                                             the present action, although NMFS                                                                              who were required to report prior to this
                                                                                                      Edit 3                                                rulemaking will not change as a result
                                             welcomes such comments and will
                                             continue to monitor, and as appropriate,                    Revisions were made to § 697.7                     of this action. Accordingly, this action
                                             participate in discussions on ways to                    Prohibitions to reflect the changes to the            affects only those Federal lobster dealers
                                             improve management of the lobster                        maximum size and v-notching                           not previously required to report lobster
                                             resource.                                                requirements to indicate that those                   sales based on reporting requirements
                                                                                                      requirements would be effective in the                mandated by other federally-managed
                                             Changes From the Proposed Rule                                                                                 fisheries.
                                                                                                      Outer Cape Area beginning July 1, 2010,
                                                The following minor changes were                      and effective in Areas 2, 3, 4, 5, and 6                 Under this final rule, all Federal
                                             made to the regulatory text since the                    thirty days after the publication of the              lobster dealers must complete trip-level
                                             publication of the proposed rule to                      final rule.                                           reports and submit them electronically
                                             reflect the timing adjustments made to                                                                         each week, consistent with current
                                             the implementation dates of the various                  Edit 4                                                Federal dealer reporting requirements.
                                             regulations based on industry concerns                                                                         This measure differs from the
                                                                                                         The text, ‘‘Effective January 1, 2010,’’           Commission’s recommendations
                                             and to clarify the revised definition of
                                                                                                      was added to § 697.6(n)(1) to indicate                because it requires the electronic
                                             a standard v-shaped notch.
                                                                                                      that the reporting requirements for                   submission of the reports and would
                                             Edit 1                                                   affected lobster dealers would not begin              collect the data in a timelier manner
                                                This final rule modifies the wording                  until that date. In the proposed rule, the            (weekly vs. monthly). To address
                                             in the definition of a standard v-shaped                 preferred alternative would have                      concerns from some dealers, the State of
                                             notch from that provided in the                          implemented those requirements 30                     Maine, and industry groups which
                                             regulatory text of the proposed rule. The                days after the publication of this rule.              wrote in opposition to this requirement,
                                             definition in the proposed rule read, ‘‘a                Changes to Existing Regulations                       NMFS has deferred the effective date of
                                             straight-sided triangular cut, with or                                                                         this action to January 1, 2010, to allow
                                             without setal hairs, at least 1/8 inch                     NMFS herein amends the Federal
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                                                                                                                                                            those affected by this rule some
                                             (0.32 cm) in depth and tapering to a                     lobster regulations by expanding                      additional time to adjust their business
                                             point.’’ The wording was modified in                     reporting requirements to all Federal                 practices to comply with the new
                                             the final rule to match the Commission’s                 lobster dealers and revising the                      requirements.
                                             recommended wording in Addendum                          maximum carapace length regulations                      This action does not alter harvester
                                             XI and now reads, ‘‘a notch or                           and v-notch definition for several                    reporting, sea sampling, port sampling
                                             indentation in the base of the flipper                   LCMAs.                                                or fishery-independent data collection


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                         37545

                                             programs. Federal fishery-dependent                      requirements already in place for                     Federal lobster regulations for Area 4
                                             data collection programs, such as sea                    Federal seafood dealers who are already               and Area 5 allowed recreational
                                             sampling and port sampling activities,                   subject to electronic reporting                       fishermen to retain one female lobster
                                             are longstanding and underway,                           requirements for fisheries managed                    exceeding the maximum size
                                             contributing substantially to the pool of                under the authority of the Magnuson-                  requirement as long as such lobster is
                                             information used for lobster stock                       Stevens Act, including those of whom                  not intended for commercial sale. This
                                             assessments, as are the trawl surveys                    also hold Federal lobster permits. The                so-called ‘‘trophy’’ lobster allowance in
                                             conducted by the Northeast Fisheries                     electronic dealer reporting requirements              Area 4 and Area 5 is now eliminated. In
                                             Science Center. NMFS believes that                       for fisheries managed under the                       Area 6, this action establishes a
                                             these Federal fishery-dependent and                      authority of the Magnuson-Stevens Act                 maximum size of 5 1/4 inches (13.34
                                             fishery-independent data collection                      are set forth in 50 CFR 648.6 and 50 CFR              cm) for all lobster harvested by Federal
                                             activities exceed those identified in                    648.7 of the Federal fisheries regulations            vessels in this area. Consequently, with
                                             Addendum X and, therefore, do not                        and specify the data elements and                     this final rule, the maximum size
                                             warrant further action at this time.                     technological requirements needed for                 restrictions are identical for Areas 2, 4,
                                             Further, with respect to harvester                       electronic reporting.                                 5 and 6 and consistent with the
                                             reporting, Addendum X mandates                             Federal lobster dealers affected by this            maximum size measures already
                                             participating states, and recommends                     action, similar to Federal dealers                    enforced by the states adjacent to these
                                             that NMFS, require at least 10 percent                   already required to report, may choose                management areas.
                                             of all lobster harvesters to report their                one of three methods for submitting                      In addition to the changes in the
                                             catch. Currently, approximately 61                       their electronic reports: direct real-time,
                                                                                                                                                            maximum sizes in the near shore lobster
                                             percent of all Federal lobster vessels                   online data entry into SAFIS; off-line
                                                                                                                                                            management areas, this regulatory
                                             report their catch through the NMFS                      data entry using software provided by
                                                                                                                                                            action establishes a maximum carapace
                                             VTR program, thus exceeding the                          NMFS, followed by file upload to
                                                                                                                                                            size requirement in offshore Area 3. The
                                             reporting threshold under the ISFMP.                     SAFIS; or proprietary record-keeping
                                                                                                                                                            Commission’s plan requires the states to
                                             Therefore, with respect to the reporting                 software followed by file upload to
                                                                                                                                                            implement a lobster maximum carapace
                                             requirements in Addendum X of the                        SAFIS. Those entering the data directly
                                                                                                                                                            length of 7 inches (17.78 cm) by July 1,
                                             Commission’s ISFMP, this final rule                      into the SAFIS system could do so with
                                                                                                                                                            2008, reduced by 1/8 inches (0.32)
                                             changes only the dealer reporting                        a personal computer and Internet
                                                                                                                                                            during each of two successive
                                             requirements and no other data                           access. Those who choose to enter the
                                                                                                      data using a file upload system would                 subsequent years until a terminal
                                             collection or reporting programs.
                                                Both NMFS and the states acquire                      also need a computer and Internet                     maximum size of 6 3/4 inches (17.15
                                             dealer and harvester data, although the                  access. However, these respondents                    cm) is in place in July 2010. Therefore,
                                             frequency and reporting requirements                     would be eligible to obtain the file                  to be consistent with the Commission
                                             vary across state and Federal                            upload software through a NMFS                        and States’ recommended time frame for
                                             jurisdictions. In an effort to achieve a                 contractor, at no cost to the impacted                implementation and fully complement
                                             common forum for collecting and                          dealer. The no-cost option would                      state regulations, this action establishes
                                             assessing coastwide fishery data, NMFS                   mitigate some of the financial impact to              the maximum size recommended by the
                                             and its Atlantic states partners                         Federal lobster dealers who would be                  Commission for the second year of the
                                             developed the Atlantic Coastal                           subject to mandatory dealer reporting.                three-year implementation schedule,
                                             Cooperative Statistics Program (ACCSP).                  All impacted lobster dealers would be                 which equates to a 6 7/8–inch (17.46–
                                             ACCSP is a state and Federal fisheries                   required to maintain or have access to                cm) maximum size effective thirty days
                                             statistical data collection program. The                 a personal computer and Internet                      after the publication of the final rule.
                                             data are compiled into a common                          connection.                                           Consistent with the ISFMP, the terminal
                                             management system to facilitate fishery                                                                        maximum size for Area 3 of 6 3/4 inches
                                                                                                      Maximum Carapace Length                               (17.15 cm) will take effect on July 1,
                                             management and meet the needs of
                                                                                                      Requirements                                          2010. The aforementioned measures are
                                             fishery managers, scientists and the
                                             fishing industry. To more specifically                      In support of the Commission’s                     consistent with the Commission’s plan.
                                             address the need for real-time landings                  measures in Addendum XI to address                    The Commission’s plan does not
                                             data to assist in fisheries management,                  the recommendations provided in the                   include a maximum size requirement
                                             the ACCSP established the Standard                       stock assessment and peer review                      for the Outer Cape Area, the only Area
                                             Atlantic Fisheries Information System                    process, this final rule establishes a                without a maximum size requirement
                                             (SAFIS). Since 2003, SAFIS has evolved                   maximum size of 5 1/4 inches (13.34                   under the Commission’s ISFMP. As part
                                             to handle the fisheries data from state-                 cm) on all (male and female) lobsters in              of this final rule, NMFS establishes a
                                             permitted dealers from participating                     Area 2 wherein there was formerly no                  maximum carapace length requirement
                                             states along the Atlantic coast. Since                   maximum size requirement in the                       for the Federal waters of the Outer Cape
                                             May 2004, SAFIS has incorporated                         Federal regulations. Formerly, in Area 4,             Area, consistent with the terminal
                                             Federal seafood dealer data.                             the Federal maximum carapace length                   maximum size for Area 3. The rationale
                                                Although SAFIS was intended to be                     regulation restricted the harvest of                  for the expansion of this measure is that
                                             the overall entry point and warehouse                    female lobster in excess of 5 1/4 inches              the Outer Cape lobster resource, like
                                             for state and Federal dealer data, NMFS                  (13.34 cm). This final rule broadens the              that of offshore Area 3, is largely
                                             relies on its Commercial Fisheries                       scope of the maximum size to include                  composed of animals from the Georges
                                             Database System (CFDBS), managed by                      all lobsters (male and female) in Area 4.             Bank lobster stock. Given the propensity
                                             the Northeast Fisheries Science Center,                  In Area 5, the former Federal maximum                 of lobster to move inshore and offshore
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                                             as the official warehouse for Federal                    carapace regulation restricted harvest of             and between Area 3, the Outer Cape
                                             dealer data even though all Federal and                  female lobster in excess of 5 1/2 inches              Area and other areas, consistent
                                             state data are, ultimately, available on                 (13.97 cm). This action reduces the                   broodstock protection measures are a
                                             the SAFIS database. The new Federal                      maximum size in Area 5 to 5 1/4 inches                reasonable and prudent means of
                                             dealer reporting requirements are                        (13.34 cm) and applies to both male and               assuring protection of broodstock
                                             consistent with the reporting                            female lobster. Prior to this rule, the               throughout the stock area. The


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                                             37546             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             expansion of these broodstock measures                   v-notch in the Outer Cape until July 1,               including through the use of automated
                                             into the Outer Cape would support the                    2010, consistent with the effective date              collection techniques or other forms of
                                             efforts of lobstermen in Area 3 and Area                 for the maximum size regulations in this              information technology. Some
                                             1 whom are releasing lobster broodstock                  area. In the meantime, and consistent                 comments were received in response to
                                             which would otherwise be harvested as                    with the Commission’s ISFMP, the                      the proposed rule regarding the
                                             these lobsters move into the Outer Cape                  Outer Cape v-notch restriction will                   collection of information requirements.
                                             Area. The concerns of the Outer Cape                     prohibit possession of any lobster                    Those comments disagreed with the
                                             industry in response to the proposed                     bearing a notch at least 1/4 inch (0.64               estimates for operating and start-up
                                             rule were seriously considered by                        cm) in depth, without setal hair, now                 costs associated with the electronic
                                             NMFS. In consideration of comments in                    defined in the Federal lobster                        dealer reporting requirements and asked
                                             opposition by the Outer Cape lobster                     regulations as a ‘‘1/4–inch (0.64–cm) v-              why the proposed rule did not estimate
                                             industry in response to the proposed                     notch lobster.’’ Effective July 1, 2010, all          the costs associated with the
                                             broodstock measures and timeline for                     lobster management areas, with the                    compilation and submission of the
                                             implementation which under the                           exception of Area 1- essentially all of               electronic reports. NMFS used existing
                                             preferred alternative would have                         the SNE and GBK stock areas - will be                 data based on Federal dealers who
                                             established a 6 7/8–inch (17.46–cm)                      bound by a consistent v-notch size                    already report as the basis for the
                                             maximum carapace limit effective thirty                  which will be the standard v-shaped                   burden estimates. Further, NMFS did
                                             days after the publication of this final                 notch (at least as deep as 1/8 inches                 provide information in the proposed
                                             rule, NMFS has adjusted these                            (0.32 cm), with or without setal hairs).              rule concerning the estimates of
                                             requirements in this final rule to                                                                             compiling and submitting the data.
                                                                                                      Classification
                                             alleviate the economic burden on the                                                                           Since the proposed rule, NMFS
                                             industry while providing a plan for                         This final rule has been determined to             reassessed the costs associated with
                                             conserving lobster broodstock                            be not significant for the purposes of                complying with the reporting
                                             throughout the stock area. Accordingly,                  Executive Order (E.O.) 12866.                         requirements and found that the initial
                                             the maximum size requirement for the                        This final rule does not contain
                                                                                                                                                            estimates likely overstated the potential
                                             Outer Cape Area will be deferred until                   policies with Federalism implications as
                                                                                                                                                            costs of these requirements to affected
                                             July 1, 2010. At that time, the maximum                  defined in E.O. 13132. The measures set
                                                                                                                                                            dealers. This additional information was
                                             size will be 6 3/4 inches (17.15 cm),                    forth in this final rule are based upon
                                                                                                                                                            assessed in the EA for this action. More
                                             consistent with the terminal maximum                     the lobster ISFMP that was created and
                                                                                                                                                            detailed responses to these and other
                                             size for Area 3 at that time.                            is overseen by the states. The measures
                                                                                                                                                            comments are provided in the
                                                                                                      are the result of addenda that were
                                             Modified Definition of V-Notch                                                                                 Comments and Responses section under
                                                                                                      unanimously approved by the states,
                                                                                                                                                            SUPPLEMENTARY INFORMATION.
                                                As approved by the Commission in                      have been recommended by the states
                                             Addendum XI, NMFS revises the v-                         through the Commission, for Federal                      Notwithstanding any other provision
                                             notch definition in Areas 2, 3, 4, 5 and                 adoption, and are in place at the state               of the law, no person is required to
                                             6 to apply to any female lobster that                    level. Consequently, NMFS has                         respond to, and no person shall be
                                             bears a notch or indentation in the base                 consulted with the states in the creation             subject to penalty for failure to comply
                                             of the flipper that is at least as deep as               of the ISFMP which makes                              with, a collection of information subject
                                             1/8 inches (0.32 cm), with or without                    recommendations for Federal action.                   to the requirements of the PRA, unless
                                             setal hairs. The Commission’s definition                 Additionally, these regulations do not                that collection of information displays a
                                             also pertains to any female which is                     pre-empt state law and do nothing to                  currently valid OMB control number.
                                             mutilated in a manner which could                        directly regulate the states.                            NMFS prepared a Final Regulatory
                                             hide, obscure, or obliterate such a mark;                   This final rule contains a collection of           Flexibility Analysis (FRFA) as required
                                             a clause which is previously existed and                 information requirement subject to the                by section 603 of the Regulatory
                                             remains part of the definition of a v-                   Paperwork Reduction Act (PRA) which                   Flexibility Act (RFA). The FRFA
                                             notched American lobster in § 697.2. As                  has been approved by the Office of                    describes the economic impact this rule,
                                             with the Commission’s ISFMP, the zero                    Management and Budget (OMB) under                     if adopted, will have on small entities.
                                             tolerance v-notch definition for Area 1                  control number 0648–0229. Public                      A description of the action, the reason
                                             remains unchanged. The Commission’s                      reporting burden for the Mandatory                    for consideration, and the legal basis are
                                             ISFMP allows the Outer Cape Area to                      Federal Lobster Dealer Electronic                     contained in the SUPPLEMENTARY
                                             maintain the former definition of a                      Reporting requirement is estimated to                 INFORMATION section of this final rule.
                                             standard v-notch (at least 1/4 inch (0.64                average four minutes per response,                       The FRFA incorporates the initial
                                             cm) in depth, without setal hair).                       including the time for reviewing                      regulatory flexibility analysis (IRFA), a
                                             However, to provide a consistent set of                  instructions, searching existing data                 summary of the significant issues raised
                                             regulations to protect broodstock across                 sources, gathering and maintaining the                by the public comments in response to
                                             stock and management areas while                         data needed, and completing and                       the IRFA, the NMFS responses to those
                                             balancing economic impacts to the                        reviewing the collection information.                 comments, and a summary of the
                                             Outer Cape lobster industry, this final                     Public comment was sought during                   analyses completed to support the
                                             rule extends the modified definition of                  the proposed rule stage regarding:                    action. The IRFA was summarized in
                                             a standard v-notch (at least as deep as                  whether this proposed collection of                   the proposed rule (73 FR 58099, October
                                             1/8 inches (0.32 cm), with or without                    information is necessary for the proper               6, 2008) and is thus not repeated here.
                                             setal hairs) to include the Outer Cape                   performance of the functions of the                   Copies of the FRFA, RIR, and the EA
                                                                                                      agency, including whether the                         prepared for this action are available
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                                             Area.
                                                The concerns of the Outer Cape                        information shall have practical utility;             from the Northeast Regional Office (see
                                             industry were not overlooked in                          the accuracy of the burden estimate;                  ADDRESSES). A description of the action,
                                             selecting the manner in which the v-                     ways to enhance the quality, utility and              its reasons for consideration, and the
                                             notch regulation is implemented.                         clarity of the information to be                      legal basis for this action are contained
                                             Specifically, NMFS has deferred the                      collected; and ways to minimize the                   in the SUMMARY and SUPPLEMENTARY
                                             effective date of the 1/8–inch (0.32–cm)                 burden of the collection of information,              INFORMATION sections of this final rule.



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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37547

                                             Summary of the Significant Issues                        Description and Estimate of the Number                Patterns it is estimated that all regulated
                                             Raised by the Public Comments                            of Small Entities to Which the Final                  entities that specialize in lobster
                                                A total of 49 comments were received.                 Rule Applies                                          wholesale trade, as well as those entities
                                             Four comments were received in                              The final rule will impact                         that may not specialize in the lobster
                                             opposition to the Federal lobster dealer                 approximately 148 Federal lobster                     trade yet would be required to comply
                                             electronic reporting requirements, while                 dealers who were not formerly required                with the proposed action, are presumed
                                             five wrote in favor of the dealer                        to report lobster purchases to NMFS.                  to be small entities for purposes of the
                                             electronic reporting requirements.                       With this action, these Federal lobster               Regulatory Flexibility Act (RFA).
                                                                                                      dealers will be required to submit                       This action requires all federally-
                                             Similar to those received in response to
                                                                                                      weekly electronic reports of trip-level               permitted lobster dealers to report all
                                             the ANPR for this action as addressed in
                                                                                                      lobster purchases from lobster vessels.               seafood purchases, including lobster,
                                             the proposed rule, the comments in
                                                                                                      These requirements are consistent with                through an electronic reporting system.
                                             opposition to the electronic dealer                                                                            This action affects regulated lobster
                                             reporting requirements were received                     the reporting requirements in place for
                                                                                                      all other Federal seafood dealers who                 dealers who are not already required to
                                             from two lobster dealers, the State of                                                                         report by virtue of holding at least one
                                             Maine Department of Marine Resources                     are subject to reporting requirements.
                                                                                                         Promulgation of Federal regulations to             other Federal dealer permit requiring
                                             (ME DMR), and a lobster fishermen’s                                                                            reporting. During 2007 there were 511
                                             organization. The general theme of these                 implement the broodstock management
                                                                                                      measures in Areas 2, 3, 4, 5 and 6 are                lobster dealers issued a Federal permit
                                             comments was that mandatory weekly                                                                             to purchase lobster. Of these dealers the
                                             electronic reporting would add more                      not expected to impact any vessels as
                                                                                                      these measures are part of the                        majority (71 percent) were already
                                             administrative burden to affected lobster                                                                      required to report to NMFS leaving 148
                                             dealers and would be redundant since                     Commission’s plan. Consequently, the
                                                                                                      measures are currently enforced by the                regulated small entities required to
                                             many dealers are already providing the                                                                         comply with this action.
                                             data to their respective state fisheries                 states and Federal vessels are subject to
                                                                                                      these more restrictive requirements in                   To comply with the electronic
                                             agency.                                                                                                        reporting requirements, dealers need a
                                                Thirty-two comments were received                     the absence of complementary Federal
                                                                                                      regulations. In the Outer Cape Area, the              personal computer and Internet service.
                                             in opposition to the inclusion of the                                                                          The required specifications for the
                                             Outer Cape Area under the expanded                       broodstock measures are not part of the
                                                                                                      Commission’s plan and Federal                         personal computer are such that any
                                             broodstock protection measures. Of                                                                             recently purchased computer, and most
                                             those comments, 14 stated that the                       implementation of the broodstock
                                                                                                      measures in the Outer Cape Area are                   older computers would meet the
                                             expansion of the broodstock                                                                                    minimum specifications. For this
                                             requirements into the Outer Cape Area                    expected to impact a maximum of 184
                                                                                                      to 203 trap and non-trap vessels.                     reason, any dealer who currently owns
                                             would cause some level of financial                                                                            a computer would not likely be required
                                             hardship for Outer Cape lobster trap                     However, the actual number of
                                                                                                      impacted vessels is expected to be much               to purchase new equipment. The
                                             fishermen. Seven of the 32 individuals                                                                         number of regulated lobster dealers who
                                             disagreed with the NMFS estimates of                     less. The broadness of this estimate is
                                                                                                      evident because Federal lobster vessels               do not now own a computer is uncertain
                                             catch reductions in the Outer Cape                                                                             but is expected to be low. Those who
                                             lobster trap sector associated with the                  fishing with non-trap gear are not
                                                                                                      required to indicate a lobster trap                   already have Internet access and a
                                             new requirements, stating that the losses                                                                      computer would not have any specific
                                             in catch would be higher than the                        fishing area on their permit. If such
                                                                                                                                                            costs associated with this new reporting
                                             NMFS estimates.                                          vessels provide VTRs then a statistical
                                                                                                                                                            requirement. It is estimated that the
                                                Seven comments were received in                       area is provided to reflect fishing areas
                                                                                                                                                            average start-up costs for those lobster
                                             general support of the broodstock                        but the statistical areas do not always
                                                                                                                                                            dealers who do not have a computer
                                             protection measures, and four                            fall exclusively within a single
                                                                                                                                                            would be about $580 to purchase a
                                             individuals wrote expressly to support                   management area, complicating the
                                                                                                                                                            personal computer and monitor that
                                             the expansion of the broodstock                          ability to narrow down the specific
                                                                                                                                                            would meet or exceed the specifications
                                             measures into the Outer Cape Area.                       areas fished. Further, trap vessels may
                                                                                                                                                            needed to participate in the electronic
                                             Three commenters opposed the                             select the Outer Cape Area on their
                                                                                                                                                            dealer reporting program. Preliminary
                                             broodstock protection measures in                        permit but may not fish in that area. For
                                                                                                                                                            estimates of additional costs of about $
                                             management areas other than the Outer                    these reasons, the exact number of                    652 per year for Internet access would
                                             Cape Area.                                               vessels is unknown but is likely less                 bring the total start-up costs to
                                                Two comments opposing the                             than the upper end estimates                          approximately $ 1,232, with costs for
                                             maximum size requirements were                           determined from the EA.                               Internet access continuing annually.
                                             received, one by a mid-Atlantic pot gear                 Economic Impacts of the Selected                      The unknown number of dealers
                                             fisherman and one by a recreational                      Action                                                impacted by the proposed dealer
                                             diving group. Representatives of the                                                                           reporting program, whom already own a
                                             offshore lobster fishing sector wrote in                 Mandatory Federal Lobster Dealer                      computer but are not connected to the
                                             favor of the dealer reporting, maximum                   Electronic Reporting                                  Internet, would assume the estimated
                                             size and v-notching requirements. Two                      Federal lobster dealers are the entity              annual fees for this service at about $
                                             fishermen recommended consistent                         most affected by this requirement.                    652 annually. Based on data from
                                             measures throughout all lobster                          According to the Small Business                       dealers who are currently required to
                                             management areas and one fisherman                       Administration (SBA), lobster dealers                 report, these costs were estimated to be
                                             commented that more restrictive                          are considered small entities when they               0.47 percent of gross net sales (i.e. sales
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                                             broodstock measures are needed                           employ less than 100 people. NMFS                     less the cost of purchasing lobster) in
                                             coastwide.                                               does not collect employment data from                 the first year for the one-time cost of
                                                Detailed responses to all the                         Federally-permitted lobster dealers in                purchasing a computer and the first year
                                             comments are provided in the                             the Northeast region. However, based on               of Internet service. Ongoing costs were
                                             Comments and Responses section of                        review of data reported in the U.S.                   estimated to represent 0.27 percent of
                                             SUPPLEMENTARY INFORMATION.                               Census Bureau’s County Business                       gross net sales. Since the publication of


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                                             37548             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             the proposed rule and in response to                     fishery tend to be small in size and do               lobsters in Areas 4 and 5, these areas
                                             comments regarding the accuracy of the                   not carry a large number of passengers                represent the southern terminus of the
                                             economic impact estimates, NMFS                          on any given trip. For these reasons it               lobster resource. Therefore, eliminating
                                             reassessed the costs associated with                     is expected that all regulated party/                 the exemption for a trophy lobster
                                             acquiring the necessary computer and                     charter operators holding a Federal                   would have little impact on the
                                             Internet requirements. Although NMFS                     lobster permit would be classified as a               recreational fishery since the encounter
                                             stands by its initial estimates, the                     small entity for purposes of the RFA. All             rate with lobsters of that size is expected
                                             reassessment suggests that the costs for                 Federal lobster party/charter permit                  to be very low.
                                             a computer and Internet service as                       holders are already required to abide by                 Federal Commercial Lobster Vessels.
                                             presented in the initial NMFS analysis                   all state regulations under the most                  The SBA size standard for commercial
                                             are probably overestimated and, more                     restrictive rule of the ISFMP. This                   fishing businesses is $ 4 million in gross
                                             than likely, represent a high-end, worst-                means that this action would only affect              sales. According to dealer records, no
                                             case scenario of potential cost to                       party/charter operators that take                     single lobster vessel would exceed $ 4
                                             affected Federal lobster dealers. Based                  passengers for hire in the Outer Cape                 million in gross sales. Therefore, all
                                             on the information obtained through the                  Area since this is the only area in the               operating units in the commercial
                                             new cost investigation, a new desk-top                   proposed Federal action not included                  lobster fishery are considered small
                                             personal computer system can be                          for a maximum size or a more restrictive              entities for purposes of analysis. The
                                             purchased for as little as $272 and                      v-notch in the ISFMP and therefore, not               economic impacts of the change in
                                             Internet service can be acquired in most                 under such restrictions by any state.                 maximum size in the Outer Cape Area
                                             areas for about $20 per month. In                           During 2007 there were a total of 31               are uncertain since all vessels are not
                                             consideration of the more recent cost                    Federal permit holders with a party/                  required to report their landings to
                                             query, if one considers the cost of a                    charter lobster permit. Of these vessels              NMFS. Survey data collected during
                                             computer to be about $400 and the                        all but one held at least one other                   2005 by researchers at the Gulf of Maine
                                             annual cost of Internet service to be                    Federal party/charter permit (for                     Research Institute and made available to
                                             $240 (assuming the $20 per month                         another species), while the majority (24)             NMFS included information on lobster
                                             charge and not the lowest possible                       held four or more other Federal party/                business profitability for vessels
                                             charge) then the annual cost could be                    charter permits in addition to the lobster            operating in Areas 1, 2, and 3. Operators
                                             about 50 percent less than NMFS has                      permit. These data indicate nearly all                in the Outer Cape Area were not
                                             estimated in the initial analysis. More                  lobster party/charter permit holders                  specifically sampled. However, it is
                                             specifically, the cost to pay in full for a              have at least one other Federal permit                likely that these entities are of similar
                                             brand new computer and the annual                        requiring mandatory reporting.                        scale to operators that were sampled
                                             Internet service charge would be                         Available logbook (VTR) data show that                and fish on a lobster stock that bear
                                             approximately $640 or about $53 per                      only 3 of the 31 lobster party/charter                some similarities to operators in Area 1
                                             month, compared to the initial estimate                  permit holders reported taking                        although the size composition of catch
                                             of $1,232 or about $103 per month.                       passengers for hire during trips when                 tends to be larger than would be the
                                                                                                      lobster were kept during the 2007                     case in Area 1. Subject to these caveats,
                                             Changes to Maximum Carapace Length                       fishing year. Of the trips that did report            it was assumed that the cost and
                                             Requirements and Revision to V-Notch                     landing lobsters none took place within               earnings profile for Area 1 survey
                                             Definition                                               NMFS statistical area 521, used as a                  participants would be a suitable proxy
                                               Since the states have already                          proxy for the Outer Cape Area. In fact,               for financial performance of Outer Cape
                                             implemented the maximum size and v-                      all for-hire recreational trips took place            Area trap participants.
                                             notch requirements for the affected                      in statistical areas in the Mid-Atlantic                 The survey data indicate that the
                                             areas, with the exception of the Outer                   region. Although the number of                        majority of Area 1 lobster businesses
                                             Cape Area as reflected in this                           participating for-hire vessels was larger             were able to cover operating costs with
                                             rulemaking action, the small entities                    in Fishing Year (FY) 2005 (6 vessels)                 gross sales. However, net earnings for
                                             impacted by the maximum size and v-                      and FY 2006 (7 vessels), these vessels                the majority of businesses were below
                                             notch provisions proposed herein                         also took recreational lobster fishing                median personal income for the New
                                             would be limited to the Federal                          trips only within the Mid-Atlantic area.              England region and only about 20
                                             commercial lobster fishing vessels and                   None took a for-hire trip in the Outer                percent of lobster businesses earned a
                                             party/charter dive vessels that fish, or                 Cape Area.                                            positive return to invested capital. Since
                                             are permitted to fish, in the Outer Cape                    These data suggest that participating              2005, fuel costs have more than doubled
                                             Area. The Outer Cape Area has been                       for-hire lobster permit holders would                 cutting average net return by about 30
                                             characterized as fishing on a population                 not be affected by the proposed action                percent; this is before taking into
                                             of transient lobsters migrating between                  in the Outer Cape Area although these                 account the opportunity cost of the
                                             inshore and offshore areas.                              permit holders may have been affected                 owner’s labor or capital. Thus, profit
                                               Party/Charter Vessels. Party/Charter                   by action already taken by individual                 margins have shrunk significantly since
                                             operators are classified with businesses                 states. While the magnitude of any                    2005 and even small changes in revenue
                                             that offer sightseeing and excursion                     impact associated with state action is                streams could place lobster businesses
                                             services where the vessel departs and                    uncertain, it is likely to have been                  in financial risk. However, as the
                                             returns to the same location within the                  relatively small. In the areas where                  following analysis describes, few vessels
                                             same day. Relevant to this proposed                      recreational lobster fishing was reported             rely exclusively on the Outer Cape Area
                                             action, these businesses include party/                  (corresponding to Area 4 and/or 5) a                  for lobster fishing revenue. Further, only
                                             charter recreational fishing vessels                     maximum size for female lobsters has
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                                                                                                                                                            a small percentage of the catch in the
                                             which offer SCUBA divers recreational                    already been in place for several years.              trap sector is expected to be impacted
                                             opportunities to harvest lobsters for                    Despite the state action and this Federal             by the proposed measures.
                                             personal use. The SBA size standard for                  action to reduce the maximum size from                   Trap Gear Vessels. This Federal
                                             this sector is $ 7 million in gross sales.               5 1/2 inches (13.97 cm) to 5 1/4 inches               action would directly affect only those
                                             Although sales data are not available,                   (13.34 cm) in Area 5 and expand it to                 Federal lobster vessels that selected the
                                             party/charter operators in the lobster                   provide additional protection for male                Outer Cape Area. For the 2007 fishing


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                    37549

                                             year, 184 Federal lobster trap vessels                   Commonwealth of Massachusetts                               CFR part or section      Current OMB control
                                             selected the Outer Cape as one of the                    indicate that between 2 percent and 4                      where the information     number the informa-
                                             potential trap fishing areas. Federal                    percent of females encountered in the                      collection requirement     tion (All numbers
                                                                                                                                                                        is located          begin with 0648–)
                                             Fisheries Observer data suggest, in                      Outer Cape Area were v-notched. A
                                             consideration of the terminal maximum                    substantial portion of the Outer Cape                      *          *         *        *         *
                                             size proposed in the preferred                           Area legal harvest is comprised of
                                             alternative of 6 3/4 inches (17.15 cm),                  females (64 percent), an unknown
                                             trap vessels operating in this area would                proportion of which would be illegal                       50 CFR
                                             expect a reduction in catch of                           under the preferred alternative.                           *      *             *        *         *
                                             approximately 0.5 percent. Note,                            Section 212 of the Small Business
                                             however, that a price premium is paid                                                                               697.7                     –0202
                                                                                                      Regulatory Enforcement Fairness Act of                     *          *         *        *         *
                                             for larger lobsters such that the realized               1996 states that, for each rule or group
                                             economic impact on lobster fishing                       of related rules for which and agency is
                                             businesses is likely to be proportionally                required to prepare a FRFA, the agency
                                             larger than the expected change in                       shall publish one or more guides to                        PART 697—ATLANTIC COASTAL
                                             catch.                                                   assist small entities in complying with                    FISHERIES COOPERATIVE
                                                Non-Trap Gear Vessels. Based on a                     the rule, and shall designate such                         MANAGEMENT
                                             three-year average (2005–2007) overall                   publications as ‘‘small entity
                                             dependence on lobster for non-trap                       compliance guides.’’ The agency shall                      ■ 3. The authority citation for part 697
                                             vessels ranged from 0.03 percent to 30.6                 explain the actions a small entity is                      continues to read as follows:
                                             percent in terms of annual value and                     required to take to comply with a rule
                                             from 0.01 percent to 10.6 percent in                                                                                    Authority: 16 U.S.C. 5101 et seq.
                                                                                                      or group of rules.
                                             volume. Few vessels relied exclusively                                                                              ■ 4. In § 697.2(a), the definition for
                                                                                                         As part of this rulemaking process, a                   ‘‘One-quarter-inch (1/4–inch) v-shaped
                                             on the Outer Cape Area for lobster
                                                                                                      letter to permit holders that also serves                  notch’’ is added and the and the
                                             fishing revenue. Using statistical area
                                                                                                      as a small entity compliance guide (the                    definition for ‘‘Standard v-shaped
                                             521 as a proxy for the Outer Cape during
                                                                                                      guide) was prepared. The small entity                      notch’’ is revised to read as follows:
                                             the 2005–2007 period, dependence on
                                                                                                      compliance guide will be sent to all
                                             lobster in value ranged from 0.01
                                                                                                      holders of Federal American lobster                        § 697.2    Definitions.
                                             percent to 19.4 percent, averaging 1.4
                                             percent of overall value. In volume,                     vessel and dealer permits as part of the                      (a) * * *
                                             lobster harvested from area 521 ranged                   permit holder letter. Copies of this final                    One-quarter-inch (1/4–inch) v-shaped
                                             from 0.002 percent to 5.7 percent,                       rule and the small entity compliance                       notch means a straight-sided triangular
                                             averaging 0.4 percent of overall volume.                 guide are available upon request from                      cut, without setal hairs, at least 1/4 inch
                                             The maximum expected annual                              the Northeast Regional Office (see                         (0.64 cm) in depth and tapering to a
                                                                                                      ADDRESSES).                                                point.
                                             economic impact of the 6 3/4–inch
                                             (17.15–cm) maximum size in the Outer                     List of Subjects                                           *      *     *     *     *
                                             Cape Area on non-trap vessels is                                                                                       Standard V-shaped notch means a
                                             estimated to be about $ 1,000, while the                 15 CFR Part 902
                                                                                                                                                                 notch or indentation in the base of the
                                             median annual impact was estimated to                      Reporting and recordkeeping                              flipper that is at least as deep as 1/8
                                             be $ 117 per vessel. These values are                    requirements.                                              inch (0.32 cm), with or without setal
                                             reflective of the relatively low                                                                                    hairs.
                                             dependence on the Outer Cape Area for                    50 CFR Part 697
                                                                                                                                                                 *      *     *     *     *
                                             lobster fishing revenue and the low                        Fisheries, Fishing, Reporting and
                                             encounter rate suggested by observer                                                                                ■ 5. In § 697.6, paragraphs (n) through
                                                                                                      recordkeeping requirements.
                                             data of lobsters above the 6 3/4–inch                                                                               (s) are added to read as follows:
                                                                                                        Dated: July 22, 2009.
                                             (17.15–cm) maximum size. In terms of                                                                                § 697.6    Dealer permits.
                                             total fishing revenue these estimated                    John Oliver,
                                             revenue impacts represent between 0.01                   Deputy Assistant Administrator for                         *     *     *     *     *
                                             percent and 1.2 percent of total fishing                 Operations, National Marine Fisheries                        (n) Lobster dealer recordkeeping and
                                                                                                      Service.                                                   reporting requirements. (1) Detailed
                                             revenue for participating regulated non-
                                             trap gear small entities.                                ■ For the reasons set out in the                           report. Effective January 1, 2010, all
                                                The added economic impact of the                      preamble, 15 CFR part 902 and 50 CFR                       Federally-permitted lobster dealers, and
                                             change in v-notch definition across all                  part 697 are amended as follows:                           any person acting in the capacity of a
                                             areas is highly uncertain. Although this                                                                            dealer, must submit to the Regional
                                             change would result in an unknown                        PART 902—NOAA INFORMATION                                  Administrator or to the official designee
                                             level of reduced opportunities to retain                 COLLECTION REQUIREMENTS UNDER                              a detailed report of all fish purchased or
                                             legal lobsters it seems likely that this                 THE PAPERWORK REDUCTION ACT:                               received for a commercial purpose,
                                             additional impact would have less                        OMB CONTROL NUMBERS                                        other than solely for transport on land,
                                             impact on non-trap than trap vessels                                                                                within the time periods specified in
                                             since non-trap vessels earn only a                       ■ 1. The authority citation for part 902                   paragraph (q) of this section, or as
                                             portion of total fishing revenue from                    continues to read as follows:                              specified in § 648.7(a)(1)(f) of this
                                             lobsters. The added effect on trap                            Authority: 44 U.S.C. 3501 et seq.                     chapter, whichever is most restrictive,
                                             vessels is difficult to assess, but would                                                                           by one of the available electronic
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                                                                                                      ■ 2. In § 902.1, the table in paragraph (b)
                                             reduce potential revenue in addition to                  under ‘‘50 CFR’’ is amended by adding                      reporting mechanisms approved by
                                             that which may be associated with                        a new entry for 697.7 to read as follows:                  NMFS, unless otherwise directed by the
                                             either changes in existing maximum                                                                                  Regional Administrator. The following
                                             size or implementation of new                            § 902.1 OMB control numbers assigned                       information, and any other information
                                             maximum size regulations. Available                      pursuant to the Paperwork Reduction Act.                   required by the Regional Administrator,
                                             sea sampling data from the                               *        *        *       *       *                        must be provided in each report:


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                                             37550             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                (i) Required information. All dealers                 identified according to the following                 and reports at their principal place of
                                             issued a Federal lobster dealer permit                   categories: winter skate, little skate,               business.
                                             under this part must provide the                         little/winter skate, barndoor skate,                     (q) Submitting dealer reports. (1)
                                             following information, as well as any                    smooth skate, thorny skate, clearnose                 Detailed dealer reports required by
                                             additional information as applicable                     skate, rosette skate, and unclassified                paragraph (n)(1)(i) of this section must
                                             under § 648.7(a)(1)(i) of this chapter:                  skate. NMFS will provide dealers with                 be received by midnight of the first
                                             Dealer name; dealer permit number;                       a skate species identification guide.                 Tuesday following the end of the
                                             name and permit number or name and                          (2) System requirements. All persons               reporting week. If no fish are purchased
                                             hull number (USCG documentation                          required to submit reports under                      or received during a reporting week, the
                                             number or state registration number,                     paragraph (n)(1) of this section are                  report so stating required under
                                             whichever is applicable) of vessel(s)                    required to have the capability to                    paragraph (n)(1)(i) of this section must
                                             from which fish are transferred,                         transmit data via the Internet. To ensure             be received by midnight of the first
                                             purchased or received for a commercial                   compatibility with the reporting system               Tuesday following the end of the
                                             purpose; trip identifier for each trip                   and database, dealers are required to                 reporting week.
                                             from which fish are purchased or                         utilize a personal computer, in working                  (2) Dealers who want to make
                                             received from a commercial fishing                       condition, that meets the minimum                     corrections to their trip-level reports via
                                             vessel permitted under part 648 of this                  specifications identified by NMFS. The                the electronic editing features may do so
                                             chapter with a mandatory vessel trip                     affected public will be notified of the               for up to 3 business days following
                                             reporting requirement; date(s) of                        minimum specifications via a letter to                submission of the initial report. If a
                                             purchases and receipts; units of measure                 all Federal lobster dealer permit                     correction is needed more than 3
                                             and amount by species (by market                         holders. Failure to comply with the                   business days following the submission
                                             category, if applicable); price per unit by              minimum specifications identified in                  of the initial trip-level report, the dealer
                                             species (by market category, if                          the permit holder letter are prohibited.              must contact NMFS directly to request
                                             applicable) or total value by species (by                   (3) Annual report. All persons issued              an extension of time to make the
                                             market category, if applicable); port                    a permit under this part are required to              correction.
                                             landed; cage tag numbers for surfclams                   submit the following information on an                   (3) The trip identifier required under
                                             and ocean quahogs, if applicable;                        annual basis, on forms supplied by the                paragraph (n)(1) of this section for each
                                             disposition of the seafood product; and                  Regional Administrator:                               trip from which fish are purchased or
                                             any other information deemed necessary                      (i) All dealers and processors issued
                                                                                                                                                            received from a commercial fishing
                                             by the Regional Administrator. If no fish                a permit under this part must complete
                                                                                                                                                            vessel permitted under part 648 of this
                                             are purchased or received during a                       all sections of the Annual Processed
                                                                                                                                                            chapter with a mandatory vessel trip
                                             reporting week, a report so stating must                 Products Report for all species that were
                                                                                                                                                            reporting requirement must be
                                             be submitted.                                            processed during the previous year.
                                                                                                                                                            submitted with the detailed report, as
                                                (ii) Exceptions. The following                        Reports must be submitted to the
                                                                                                                                                            required under paragraph (q)(1) of this
                                             exceptions apply to reporting                            address supplied by the Regional
                                                                                                                                                            section. Price and disposition
                                             requirements for dealers permitted                       Administrator.
                                                                                                         (ii) Surfclam and ocean quahog                     information may be submitted after the
                                             under this part:
                                                (A) Inshore Exempted Species, as                      processors and dealers whose plant                    initial detailed report, but must be
                                             defined in § 648.2 of this chapter, are                  processing capacities change more than                received within 16 days of the end of
                                             not required to be reported under this                   10 percent during any year shall notify               the reporting week.
                                             part;                                                    the Regional Administrator in writing                    (4) Annual reports for a calendar year
                                                (B) When purchasing or receiving fish                 within 10 days after the change.                      must be postmarked or received by
                                             from a vessel landing in a port located                     (iii) Atlantic herring processors,                 February 10 of the following year.
                                             outside of the Northeast Region (Maine,                  including processing vessels, must                    Contact the Regional Administrator (see
                                             New Hampshire, Massachusetts,                            complete and submit all sections of the               Table 1 to § 600.502) for the address of
                                             Connecticut, Rhode Island, New York,                     Annual Processed Products Report.                     NMFS Statistics.
                                             New Jersey, Pennsylvania, Maryland,                         (iv) Atlantic hagfish processors must                 (5) At-sea purchasers and processors.
                                             Delaware, Virginia and North Carolina),                  complete and submit all sections of the               With the exception of the owner or
                                             only purchases or receipts of species                    Annual Processed Products Report.                     operator of an Atlantic herring carrier
                                             managed by the Northeast Region under                       (o) Inspection. Upon the request of an             vessel, the owner or operator of an at-
                                             this part (American lobster), and part                   authorized officer or an employee of                  sea purchaser or processor that
                                             648 of this chapter, must be reported.                   NMFS designated by the Regional                       purchases or processes any Atlantic
                                             Other reporting requirements may apply                   Administrator to make such inspections,               herring, Atlantic mackerel, squid,
                                             to those species not managed by the                      all persons required to submit reports                butterfish, scup, or black sea bass at sea
                                             Northeast Region, which are not affected                 under this part must make immediately                 must submit information identical to
                                             by the provision; and                                    available for inspection copies of                    that required by paragraph (n)(1) of this
                                                (C) Dealers issued a permit for                       reports, and all records upon which                   section and provide those reports to the
                                             Atlantic bluefin tuna under part 635 of                  those reports are or will be based, that              Regional Administrator or designee by
                                             this chapter are not required to report                  are required to be submitted or kept                  the same mechanism and on the same
                                             their purchases or receipts of Atlantic                  under this part.                                      frequency basis.
                                             bluefin tuna under this part. Other                         (p) Record retention. Any record as                   (r) Additional data and sampling.
                                             reporting requirements, as specified in                  defined at § 648.2, related to fish                   Federally permitted dealers must allow
                                                                                                      possessed, received, or purchased by a                access to their premises and make
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                                             § 635.5 of this chapter, apply to the
                                             receipt of Atlantic bluefin tuna.                        dealer that is required to be reported,               available to an official designee of the
                                                (iii) Dealer reporting requirements for               must be retained and be available for                 Regional Administrator any fish
                                             skates. In addition to the requirements                  immediate review for a total of 3 years               purchased from vessels for the
                                             under paragraph (n)(1)(i) of this section,               after the date the fish were first                    collection of biological data. Such data
                                             dealers shall report the species of skates               possessed, received, or purchased.                    include, but are not limited to, length
                                             received. Species of skates shall be                     Dealers must retain the required records              measurements of fish and the collection


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37551

                                             of age structures such as otoliths or                    or possessed by vessels issued a Federal              limited access American lobster permit
                                             scales.                                                  limited access American lobster permit                fishing in or electing to fish in the EEZ
                                               (s) Additional dealer reporting                        fishing in or electing to fish in one or              Outer Cape Lobster Management Area
                                             requirements. All persons issued a                       more of EEZ Nearshore Management                      may land, harvest or possess any female
                                             lobster dealer permit under this part are                Areas 2, 4, 5, and 6 is 5 1/4 inches                  lobster possessing a standard v-shaped
                                             subject to the reporting requirements set                (13.34 cm).                                           notch.
                                             forth in paragraph (n) of this section, as                  (5) The maximum carapace length for                *     *     *     *     *
                                             well as §§ 648.6 and 648.7 of this                       all American lobster harvested in or                  [FR Doc. E9–17941 Filed 7–28–09; 8:45 am]
                                             chapter, whichever is most restrictive.                  from EEZ Offshore Management Area 3
                                                                                                                                                            BILLING CODE 3510–22–S
                                             ■ 6. In § 697.7, paragraph (c)(1)(v) is                  is 6 7/8 inches (17.46 cm).
                                             revised, paragraph (c)(2)(xxi) is added,                    (6) The maximum carapace length for
                                             and paragraph (c)(3)(iii) is revised to                  all American lobster landed, harvested,
                                             read as follows:                                         or possessed by vessels issued a Federal              DEPARTMENT OF THE TREASURY
                                                                                                      limited access American lobster permit
                                             § 697.7   Prohibitions.                                  fishing in or electing to fish in EEZ                 Alcohol and Tobacco Tax and Trade
                                             *       *    *     *    *                                Offshore Management Area 3 is 6 7/8                   Bureau
                                                (c) * * *                                             inches (17.46 cm).
                                                (1) * * *                                                (7) Effective July 1, 2010, the                    27 CFR Parts 40, 41, and 45
                                                (v) Retain on board, land, or possess                 maximum carapace length for all                       [Docket No. TTB–2009–0002; T.D. TTB–80;
                                             any female lobster that do not meet the                  American lobster harvested in or from                 Re: T.D. TTB–78 and Notice No. 95]
                                             area-specific v-notch requirements set                   EEZ Offshore Management Area 3 or the
                                             forth in § 697.20(g).                                    Outer Cape Lobster Management Area is                 RIN 1513–AB72
                                             *       *    *     *    *                                6 3/4 inches (17.15 cm).                              Implementation of Statutory
                                                (2) * * *                                                (8) Effective July 1, 2010, the
                                                (xxi) Fail to comply with dealer                                                                            Amendments Requiring the
                                                                                                      maximum carapace length for all
                                             record keeping and reporting                                                                                   Qualification of Manufacturers and
                                                                                                      American lobster landed, harvested, or
                                             requirements as specified in § 697.6.                                                                          Importers of Processed Tobacco and
                                                                                                      possessed by vessels issued a Federal
                                                                                                                                                            Other Amendments Related to Permit
                                             *       *    *     *    *                                limited access American lobster permit
                                                                                                                                                            Requirements, and the Expanded
                                                (3) * * *                                             fishing in or electing to fish in EEZ
                                                (iii) The possession of egg-bearing                                                                         Definition of Roll-Your-Own Tobacco;
                                                                                                      Offshore Management Area 3 or the
                                             female American lobsters, v-notched                                                                            Correction
                                                                                                      Outer Cape Lobster Management Area is
                                             female American lobsters in violation of                 6 3/4 inches (17.15 cm).                              AGENCY: Alcohol and Tobacco Tax and
                                             the v-notch requirements set forth in                    *      *     *     *     *                            Trade Bureau, Treasury.
                                             § 697.20(g), American lobsters that are                     (g) * * *                                          ACTION: Temporary rule; Treasury
                                             smaller than the minimum size set forth                     (3) No person may possess any female               decision; correction.
                                             in § 697.20(a), American lobsters that                   lobster possessing a standard v-shaped
                                             are larger than the maximum carapace                     notch harvested in or from the EEZ                    SUMMARY: On June 22, 2009, the Alcohol
                                             sizes set forth in § 697.20(b), or lobster               Nearshore Management Area 2, 4, 5, 6,                 and Tobacco Tax and Trade Bureau
                                             parts, possessed at or prior to the time                 or the EEZ Offshore Management Area                   published a temporary rule in the
                                             when the aforementioned lobsters or                      3.                                                    Federal Register to implement certain
                                             parts are received by a dealer, will be                     (4) No vessel, owner or operator                   changes made to the Internal Revenue
                                             prima facie evidence that such                           issued a Federal limited access                       Code of 1986 by the Children’s Health
                                             American lobsters or parts were taken or                 American lobster permit fishing in or                 Insurance Program Reauthorization Act
                                             imported in violation of these                           electing to fish in the EEZ Nearshore                 of 2009. The principal changes involve
                                             regulations. A preponderance of all                      Management Area 2, 4, 5, 6 or the EEZ                 permit and related requirements for
                                             submitted evidence that such American                    Offshore Management Area 3 may land,                  manufacturers and importers of
                                             lobsters were harvested by a vessel not                  harvest or possess any female lobster                 processed tobacco and an expansion of
                                             holding a permit under this part and                     possessing a standard v-shaped notch.                 the definition of roll-your-own tobacco.
                                             fishing exclusively within state or                         (5) Through June 30, 2010, no person               That temporary rule contained several
                                             foreign waters will be sufficient to rebut               may possess any female lobster                        minor inadvertent errors; this document
                                             the presumption.                                         possessing a 1/4–inch (0.64–cm) v-                    corrects those errors.
                                             *       *    *     *    *                                shaped notch harvested in or from the                 DATES: Effective Date: These
                                             ■ 7. In § 697.20, paragraphs (b)(3)                      EEZ Outer Cape Lobster Management                     amendments are effective July 29, 2009
                                             through (b)(7) are revised and paragraph                 Area.                                                 through June 22, 2012.
                                             (b)(8) is added; paragraphs (g)(3) and                      (6) Through June 30, 2010, no vessel,
                                                                                                      owner or operator issued a Federal                    FOR FURTHER INFORMATION CONTACT:
                                             (g)(4) are revised, and paragraphs (g)(5)                                                                      Amy R. Greenberg, Regulations and
                                             through (g)(8) are added as follows:                     limited access American lobster permit
                                                                                                      fishing in or electing to fish in the EEZ             Rulings Division, Alcohol and Tobacco
                                             § 697.20 Size, harvesting and landing                    Outer Cape Lobster Management Area                    Tax and Trade Bureau (202–453–2099).
                                             requirements.                                            may land, harvest or possess any female               SUPPLEMENTARY INFORMATION: On June
                                             *      *     *   *      *                                lobster possessing a 1/4–inch (0.64–cm)               22, 2009, the Alcohol and Tobacco Tax
                                                (b) * * *                                             v-shaped notch.                                       and Trade Bureau (TTB) published a
                                                                                                                                                            temporary rule in the Federal Register
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                                                (3) The maximum carapace length for                      (7) Effective July 1, 2010, no person
                                             all American lobster harvested in or                     may possess any female lobster                        to implement certain changes made to
                                             from the EEZ Nearshore Management                        possessing a standard v-shaped notch                  the Internal Revenue Code of 1986 by
                                             Areas 2, 4, 5, and 6 is 5 1/4 inches                     harvested in or from the EEZ Outer Cape               the Children’s Health Insurance
                                             (13.34 cm).                                              Lobster Management Area.                              Program Reauthorization Act of 2009
                                                (4) The maximum carapace length for                      (8) Effective July 1, 2010, no vessel,             (see T.D. TTB–78, 74 FR 29401). The
                                             all American lobster landed, harvested,                  owner or operator issued a Federal                    temporary rule was effective on the date


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                                             37552             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             of publication, June 22, 2009, and,                      proposed rulemaking, and we are not                   § 40.496    [Amended]
                                             unless otherwise finalized, will expire                  extending its comment period, which                   ■  5. In the first sentence of § 40.496,
                                             on June 22, 2012. The principal changes                  closes on August 21, 2009.                            after the words ‘‘manufacturer of
                                             to our regulations made by T.D. TTB–78                                                                         processed tobacco’’, add the words
                                                                                                      List of Subjects
                                             involve permit and related requirements
                                                                                                                                                            ‘‘operating under a trade name’’.
                                             for manufacturers and importers of                       27 CFR Part 40
                                             processed tobacco and an expansion of                                                                          § 40.513    [Amended]
                                             the definition of roll-your-own tobacco.                   Cigars and cigarettes, Claims,
                                                After its publication, we found that                  Electronic funds transfers, Excise taxes,             ■ 6. In the first sentence of § 40.513,
                                             T.D. TTB–78 contained several minor                      Imports, Labeling, Packaging and                      after the phrase ‘‘make application on
                                             inadvertent errors. This document                        containers, Reporting and recordkeeping               TTB F 5200.16 for’’ add the phrase ‘‘,
                                             corrects these errors.                                   requirements, Surety bonds, Tobacco.                  and obtain,’’.
                                                Three errors involved improperly                      27 CFR Part 41                                        § 40.522    [Amended]
                                             cited cross-references. In § 40.216c(b),
                                             the citation for § 40.216(b) should have                    Cigars and cigarettes, Claims, Customs             ■ 7. In last sentence of paragraph (b) in
                                             read § 40.216b; in § 41.72c, the citation                duties and inspection, Electronic funds               § 40.522, revise the date ‘‘August 15,
                                             for § 41.72(b) should have read § 41.72b;                transfers, Excise taxes, Imports,                     2009’’ to read ‘‘August 20, 2009’’.
                                             and in § 45.45c, the citation for                        Labeling, Packaging and containers,
                                             § 40.216(b) should have read § 45.45b.                                                                         § 40.528    [Amended]
                                                                                                      Puerto Rico, Reporting and
                                             Two errors involved improper dates. In                   recordkeeping requirements, Surety                    ■ 8. In the first sentence of § 40.528,
                                             § 40.522(b), the date August 15, 2009,                   bonds, Tobacco, Virgin Islands,                       remove the phrase ‘‘manufacturer of
                                             cited in the example, should have read                   Warehouses.                                           tobacco products’’ and add in its place
                                             August 20, 2009, and in § 45.45c(a), the                                                                       the phrase ‘‘manufacturer of processed
                                             use up date for packages labeled with                    27 CFR Part 45
                                                                                                                                                            tobacco’’.
                                             ‘‘Tax Class L’’ (to designate pipe                         Administrative practice and
                                             tobacco) or ‘‘Tax Class J’’ (to designate                procedure, Authority delegations                      PART 41—IMPORTATION OF
                                             roll-your-own tobacco) should have read                  (Government agencies), Cigars and                     TOBACCO PRODUCTS AND
                                             August 1, 2009, rather than July 1, 2009.                cigarettes, Excise taxes, Labeling,                   CIGARETTE PAPERS AND TUBES,
                                                In addition, we are correcting five                                                                         AND PROCESSED TOBACCO
                                                                                                      Packaging and containers, Reporting
                                             passages to clarify a date or numerical
                                                                                                      and recordkeeping requirements,
                                             limit, to clarify a regulation’s intent, or                                                                    ■ 9. The authority citation for part 41
                                             to clarify to whom the regulation                        Tobacco.
                                                                                                                                                            continues to read as follows:
                                             applies. In § 40.256, we clarify the last                Amendments to the Regulations
                                             sentence so that the quantity of tobacco                                                                         Authority: 26 U.S.C. 5701–5705, 5708,
                                             products manufactured may be equal to                    ■ For the reasons set forth in the                    5712, 5713, 5721–5723, 5741, 5754, 5761–
                                                                                                                                                            5763, 6301, 6302, 6313, 6402, 6404, 7101,
                                             or exceed the quantity transferred or                    preamble, title 27, chapter I, of the Code
                                                                                                                                                            7212, 7342, 7606, 7651, 7652, 7805; 31 U.S.C.
                                             received in bond rather than only                        of Federal Regulations is amended as                  9301, 9303, 9304, 9306.
                                             exceed that quantity. In § 40.493(a)(2),                 follows:
                                             we clarify that a manufacturer of                                                                              § 41.72c    [Amended]
                                             processed tobacco may continue in                        PART 40—MANUFACTURE OF
                                             business if an application for a permit                  TOBACCO PRODUCTS AND                                  ■  10. In paragraph (b) of § 41.72c, revise
                                             is submitted on or before June 30, 2009,                 CIGARETTE PAPERS AND TUBES,                           the cross-reference ‘‘§ 41.72(b)’’ to read
                                             rather than only before that date. In                    AND PROCESSED TOBACCO                                 ‘‘§ 41.71b’’.
                                             § 40.496, we clarify that the regulation
                                             applies only to manufacturers of                         ■ 1. The authority citation for part 40               PART 45—REMOVAL OF TOBACCO
                                             processed tobacco operating under a                      continues to read as follows:                         PRODUCTS AND CIGARETTE PAPERS
                                             trade name rather than to all                              Authority: 26 U.S.C. 5142, 5143, 5146,              AND TUBES, WITHOUT PAYMENT OF
                                             manufacturers of processed tobacco. In                   5701–5705, 5711–5713, 5721–5723, 5731,                TAX, FOR USE OF THE UNITED
                                             § 40.513, we clarify that a manufacturer                 5741, 5751, 5753, 5761–5763, 6061, 6065,              STATES
                                             of processed tobacco who changes the                     6109, 6151, 6301, 6302, 6311, 6313, 6402,
                                             factory’s location must apply for and                    6404, 6423, 6676, 6806, 7011, 7212, 7325,             ■ 11. The authority citation for part 45
                                             obtain an amended permit before                          7342, 7502, 7503, 7606, 7805; 31 U.S.C. 9301,         continues to read as follows:
                                                                                                      9303, 9304, 9306.
                                             beginning operations at the new                                                                                  Authority: 26 U.S.C. 5702–5705, 5723,
                                             location rather than merely apply for an                 § 40.216c    [Amended]                                5741, 5751, 5762, 5763, 6313, 7212, 7342,
                                             amended permit. In § 40.528, we clarify                                                                        7606, 7805; 44 U.S.C. 3504(h).
                                             that the regulation applies to                           ■  2. In paragraph (b) of § 40.216c, revise
                                             manufacturers of processed tobacco                       the cross-reference ‘‘§ 40.216(b)’’ to read           § 45.45c    [Amended]
                                             rather than to manufacturers of tobacco                  ‘‘§ 40.216b’’.                                        ■  12. Amend § 45.45c in paragraph (a)
                                             products.                                                § 40.256    [Amended]                                 by removing the date ‘‘July 1, 2009’’ and
                                                We also solicited public comments on                                                                        adding in its place the date ‘‘August 1,
                                             the amendments contained in the                          ■  3. In the last sentence of § 40.256,               2009’’ and in paragraph (b) by revising
                                             temporary rule through a concurrent                      remove the word ‘‘exceed’’ and add in                 the cross-reference ‘‘§ 40.216(b)’’ to read
                                             notice of proposed rulemaking (see                       its place the words ‘‘be equivalent to, or
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                                                                                                                                                            ‘‘§ 45.45b’’.
                                             Notice No. 95, June 22, 2009, 74 FR                      exceed,’’.
                                                                                                                                                              Dated: July 15, 2009.
                                             29433). Given that the corrections in
                                                                                                      § 40.493    [Amended]                                 John J. Manfreda,
                                             this document do not make substantial
                                             changes to the amendments contained                      ■  4. In paragraph (a)(2) of § 40.493,                Administrator.
                                             in the temporary rule, we are not issuing                remove the word ‘‘Before’’ and add in                 [FR Doc. E9–17920 Filed 7–28–09; 8:45 am]
                                             a formal correction to the notice of                     its place the words ‘‘On or before’’.                 BILLING CODE 4810–31–P




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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                     37553

                                             POSTAL REGULATORY COMMISSION                             Mail Contract 12 product is a                            Chairman’s Information Request on June
                                                                                                      competitive product ‘‘not of general                     26, 2009.11
                                             39 CFR Part 3020                                         applicability’’ within the meaning of 39
                                                                                                                                                               II. Comments
                                             [Docket Nos. MC2009–28 and CP2009–38;                    U.S.C. 3632(b)(3). This Request has been
                                                                                                      assigned Docket No. MC2009–28.                              Comments were filed by the Public
                                             Order No. 232]
                                                                                                         In support of its Notice and Request,                 Representative.12 No comments were
                                             Priority Mail Contract                                   the Postal Service filed the following                   submitted by other interested parties.
                                                                                                      materials: (1) A redacted version of the                 The Public Representative states that the
                                             AGENCY:    Postal Regulatory Commission.                                                                          Postal Service’s filing complies with
                                                                                                      contract which, among other things,
                                             ACTION:   Final rule.                                    provides that the contract will expire 3                 applicable Commission rules of practice
                                                                                                      years from the effective date, which is                  and procedure, and concludes that the
                                             SUMMARY: The Commission is adding a                                                                               Priority Mail Contract 12 agreement
                                             new postal product to the Competitive                    proposed to be the day that the
                                                                                                                                                               comports with the requirements of title
                                             Product List. This action is consistent                  Commission issues all regulatory
                                                                                                                                                               39 and is appropriately classified as
                                             with changes in a recent law governing                   approvals; 4 (2) requested changes in the
                                                                                                                                                               competitive. Id. at 3.
                                             postal operations. Republication of the                  Mail Classification Schedule product                        The Public Representative believes
                                             lists of market dominant and                             list; 5 (3) a Statement of Supporting                    that the Postal Service has provided
                                             competitive products is also consistent                  Justification as required by 39 CFR                      adequate justification for maintaining
                                             with new requirements in the law.                        3020.32; 6 and (4) certification of                      confidentiality in this case. Id. at 2–3.
                                             DATES: Effective July 29, 2009 and is
                                                                                                      compliance with 39 U.S.C. 3633(a).7                      He indicates that the contractual
                                             applicable beginning July 1, 2009.                          In the Statement of Supporting                        provisions are mutually beneficial to the
                                             FOR FURTHER INFORMATION CONTACT:                         Justification, Mary Prince Anderson,                     parties and general public. Id. at 4.
                                             Stephen L. Sharfman, General Counsel,                    Acting Manager, Sales and
                                                                                                      Communications, Expedited Shipping,                      III. Commission Analysis
                                             202–7890–6824 or stephen.sharfman@
                                             prc.gov.                                                 asserts that the service to be provided                     The Commission has reviewed the
                                                                                                      under the contract will cover its                        Notice, the Request, the contract, the
                                             SUPPLEMENTARY HISTORY:   Regulatory                      attributable costs, make a positive                      financial analysis provided under seal
                                             History, 74 FR 30333 (June 25, 2009).                    contribution to coverage of institutional                that accompanies it, the Postal Service’s
                                             I. Background                                            costs, and will increase contribution                    responses to Chairman’s Information
                                             II. Comments                                             toward the requisite 5.5 percent of the                  Request No. 1, the Postal Service’s
                                             III. Commission Analysis                                 Postal Service’s total institutional costs.              response to the Commission’s request
                                             IV. Ordering Paragraphs                                  Request, Attachment B, at 1. W. Ashley                   for supplemental information, and the
                                             I. Background                                            Lyons, Manager, Corporate Financial                      comments filed by the Public
                                                                                                      Planning, Finance Department, certifies                  Representative.
                                                The Postal Service seeks to add a new                 that the contract complies with 39                          Statutory requirements. The
                                             product identified as Priority Mail                      U.S.C. 3633(a). Notice, Attachment B.                    Commission’s statutory responsibilities
                                             Contract 12 to the Competitive Product                                                                            in this instance entail assigning Priority
                                             List. For the reasons discussed below,                      The Postal Service filed much of the
                                                                                                      supporting materials, including the                      Mail Contract 12 to either the Market
                                             the Commission approves the Request.                                                                              Dominant Product List or to the
                                                On June 11, 2009, the Postal Service                  unredacted contract, under seal. In its
                                                                                                      Notice, the Postal Service maintains that                Competitive Product List. 39 U.S.C.
                                             filed a notice, pursuant to 39 U.S.C.                                                                             3642. As part of this responsibility, the
                                             3632(b)(3) and 39 CFR 3015.5,                            the contract and related financial
                                                                                                      information, including the customer’s                    Commission also reviews the proposal
                                             announcing that it has entered into an                                                                            for compliance with the Postal
                                             additional contract (Priority Mail                       name and the accompanying analyses
                                                                                                      that provide prices, terms, conditions,                  Accountability and Enhancement Act
                                             Contract 12), which it attempts to                                                                                (PAEA) requirements. This includes, for
                                             classify within the previously proposed                  and financial projections, should remain
                                                                                                                                                               proposed competitive products, a
                                             Priority Mail Contract Group product.1                   confidential. Notice at 2–3.
                                                                                                                                                               review of the provisions applicable to
                                             In support, the Postal Service filed the                    In Order No. 223, the Commission                      rates for competitive products. 39 U.S.C.
                                             proposed contract and referenced                         gave notice of the two dockets,                          3633.
                                             Governors’ Decision 09–6 filed in                        requested supplemental information,                         Product list assignment. In
                                             Docket No. MC2009–25. Id. at 1. The                      appointed a public representative, and                   determining whether to assign Priority
                                             Notice has been assigned Docket No.                      provided the public with an opportunity                  Mail Contract 12 as a product to the
                                             CP2009–38.                                               to comment.8 On June 22, 2009,                           Market Dominant Product List or the
                                                In response to Order No. 223,2 and in                 Chairman’s Information Request No. 1                     Competitive Product List, the
                                             accordance with 39 U.S.C. 3642 and 39                    was filed.9 On June 23, 2009, the Postal                 Commission must consider whether
                                             CFR 3020 subpart B, the Postal Service                   Service filed the supplemental
                                                                                                                                                               the Postal Service exercises sufficient market
                                             filed a formal request to add Priority                   information requested.10 The Postal
                                                                                                                                                               power that it can effectively set the price of
                                             Mail Contract 12 to the Competitive                      Service filed its response to the                        such product substantially above costs, raise
                                             Product List as a separate product.3 The                                                                          prices significantly, decrease quality, or
                                             Postal Service asserts that the Priority                      4 Attachment
                                                                                                                      A to the Notice.                         decrease output, without risk of losing a
                                                                                                           5 Attachment
                                                                                                                      A to the Request.                        significant level of business to other firms
                                               1 Notice of Establishment of Rates and Class Not         6 Attachment B to the Request.                         offering similar products.
                                                                                                        7 Attachment B to the Notice.
                                             of General Applicability (Priority Mail Contract 12),
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                                             June 11, 2009 (Notice).                                    8 Order No. 223 at 1–4.                                  11 Response to Chairman’s Information Request
                                               2 PRC Order No. 223, Notice and Order                    9 Chairman’s Information Request No. 1 and             No. 1, Question 2 and Notice of Filing Responses
                                             Concerning Filing of Priority Mail Contract 12           Notice of Filing of Question Under Seal, June 22,        to Questions 1 and 3 Under Seal, June 26, 2009.
                                             Negotiated Service Agreement, June 17, 2009 (Order       2009. A portion of the Chairman’s Information              12 Public Representative Comments in Response
                                             No. 223).                                                Request was filed under seal.                            to United States Postal Service Notice of
                                               3 Request of the United States Postal Service to         10 Response of the United States Postal Service to     Establishment of Rates and Class Not of General
                                             Add Priority Mail Contract 12 to Competitive             Commission’s Request for Supplemental                    Applicability (Priority Mail Contract 12), June 26,
                                             Product List, June 23, 2009 (Request).                   Information in Order No. 223, June 23, 2009.             2009 (Public Representative Comments).



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                                             37554             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                             39 U.S.C. 3642(b)(1). If so, the product                 employed this analysis to determine                      3. The Secretary shall arrange for the
                                             will be categorized as market dominant.                  whether changed cost inputs would                      publication of this order in the Federal
                                             The competitive category of products                     materially affect the contract’s financial             Register.
                                             shall consist of all other products.                     analysis.13 The Commission concludes
                                                The Commission is further required to                                                                        List of Subjects in 39 CFR Part 3020
                                                                                                      that the changed inputs do not have a
                                             consider the availability and nature of                  material effect on the underlying                        Administrative practice and
                                             enterprises in the private sector engaged                financial analysis of the contract.                    procedure; Postal Service.
                                             in the delivery of the product, the views                   Based on the data submitted and the                   Issued: July 1, 2009.
                                             of those who use the product, and the                    Commission’s alternative analysis, the                   By the Commission.
                                             likely impact on small business                          Commission finds that Priority Mail                    Judith M. Grady,
                                             concerns. 39 U.S.C. 3642(b)(3).                          Contract 12 should cover its attributable              Acting Secretary.
                                                The Postal Service asserts that its                   costs (39 U.S.C. 3633(a)(2)), should not
                                             bargaining position is constrained by                                                                           ■ For the reasons stated in the preamble,
                                                                                                      lead to the subsidization of competitive
                                             the existence of other shippers who can                                                                         under the authority at 39 U.S.C. 503, the
                                                                                                      products by market dominant products
                                             provide similar services, thus                                                                                  Postal Regulatory Commission amends
                                                                                                      (39 U.S.C. 3633(a)(1)), and should have
                                             precluding it from taking unilateral                                                                            39 CFR part 3020 as follows:
                                                                                                      a positive effect on competitive
                                             action to increase prices without the                    products’ contribution to institutional
                                             risk of losing volume to private                                                                                PART 3020—PRODUCT LISTS
                                                                                                      costs (39 U.S.C. 3633(a)(3)). Thus, an
                                             companies. Request, Attachment B,                        initial review of proposed Priority Mail               ■ 1. The authority citation for part 3020
                                             para. (d). The Postal Service also                       Contract 12 indicates that it comports                 continues to read as follows:
                                             contends that it may not decrease                        with the provisions applicable to rates                  Authority: 39 U.S.C. 503; 3622; 3631; 3642;
                                             quality or output without risking the                    for competitive products.                              3682.
                                             loss of business to competitors that offer                  The electronic files submitted in
                                             similar expedited delivery services. Id.                                                                        ■ 2. Revise Appendix A to Subpart A of
                                                                                                      support of the Notice did not include all
                                             It further states that the contract partner                                                                     Part 3020—Mail Classification Schedule
                                                                                                      supporting data. As noted in Order No.
                                             supports the addition of the contract to                                                                        to read as follows:
                                                                                                      231, Docket Nos. MC2009–27 and
                                             the Competitive Product List to                          CP2009–37, issued concurrently today,                  Appendix A to Subpart A of Part
                                             effectuate the negotiated contractual                    future requests must provide all                       3020—Mail Classification Schedule
                                             terms. Id. at para. (g). Finally, the Postal             electronic files showing calculations in
                                             Service states that the market for                                                                              Part A—Market Dominant Products
                                                                                                      support of the financial models                        1000 Market Dominant Product List
                                             expedited delivery services is highly                    associated with the request. A failure to              First-Class Mail
                                             competitive and requires a substantial                   provide such information may delay                       Single-Piece Letters/Postcards
                                             infrastructure to support a national                                                                              Bulk Letters/Postcards
                                                                                                      resolution of requests in the future.
                                             network. It indicates that large carriers                                                                         Flats
                                                                                                         Other considerations. The Postal
                                             serve this market. Accordingly, the                                                                               Parcels
                                                                                                      Service shall promptly notify the
                                             Postal Service states that it is unaware                                                                          Outbound Single-Piece First-Class Mail
                                                                                                      Commission of the scheduled                                 International
                                             of any small business concerns that
                                                                                                      termination date of the agreement. If the                Inbound Single-Piece First-Class Mail
                                             could offer comparable service for this
                                                                                                      agreement terminates earlier than                           International
                                             customer. Id. at para. (h).
                                                No commenter opposes the proposed                     anticipated, the Postal Service shall                  Standard Mail (Regular and Nonprofit)
                                             classification of Priority Mail Contract                 inform the Commission prior to the new                   High Density and Saturation Letters
                                                                                                      termination date. The Commission will                    High Density and Saturation Flats/Parcels
                                             12 as competitive. Having considered                                                                              Carrier Route
                                             the statutory requirements and the                       then remove the product from the Mail
                                                                                                                                                               Letters
                                             support offered by the Postal Service,                   Classification Schedule at the earliest
                                                                                                                                                               Flats
                                             the Commission finds that Priority Mail                  possible opportunity.                                    Not Flat-Machinables (NFMs)/Parcels
                                             Contract 12 is appropriately classified as                  In conclusion, the Commission                       Periodicals
                                             a competitive product and should be                      approves Priority Mail Contract 12 as a                  Within County Periodicals
                                             added to the Competitive Product List.                   new product. The revision to the                         Outside County Periodicals
                                                                                                      Competitive Product List is shown                      Package Services
                                                Cost considerations. The Postal
                                                                                                      below the signature of this Order and is                 Single-Piece Parcel Post
                                             Service presents a financial analysis                                                                             Inbound Surface Parcel Post (at UPU rates)
                                             showing that Priority Mail Contract 12                   effective upon issuance of this order.
                                                                                                                                                               Bound Printed Matter Flats
                                             results in cost savings while ensuring                   IV. Ordering Paragraphs                                  Bound Printed Matter Parcels
                                             that the contract covers its attributable                                                                         Media Mail/Library Mail
                                             costs, does not result in subsidization of                 It is ordered:                                       Special Services
                                             competitive products by market                             1. Priority Mail Contract 12 (MC2009–                  Ancillary Services
                                             dominant products, and increases                         28 and CP2009–38) is added to the                        International Ancillary Services
                                                                                                      Competitive Product List as a new                        Address List Services
                                             contribution from competitive products.                                                                           Caller Service
                                             Order No. 223 and Chairman’s                             product under Negotiated Service
                                                                                                      Agreements, Domestic.                                    Change-of-Address Credit Card
                                             Information Request No. 1 sought                                                                                     Authentication
                                             additional support and justification for                   2. The Postal Service shall notify the                 Confirm
                                             particular cost saving elements. The                     Commission of the scheduled                              International Reply Coupon Service
                                             Postal Service’s responses did not                       termination date and update the                          International Business Reply Mail Service
                                                                                                      Commission if the termination date                       Money Orders
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                                             persuade the Commission that certain
                                             cost savings elements were appropriate                   occurs prior to that date, as discussed in               Post Office Box Service
                                                                                                      this order.                                            Negotiated Service Agreements
                                             here.                                                                                                             HSBC North America Holdings Inc.
                                                Accordingly, the Commission’s                            13 The Commission’s analysis is set forth in             Negotiated Service Agreement
                                             analysis of the proposed contract is                     Library Reference PRC–CP2009–38–NP–LR–1,                 Bookspan Negotiated Service Agreement
                                             based on alternative cost estimates of                   which, because it contains confidential information,     Bank of America corporation Negotiated
                                             certain mail functions. The Commission                   is being filed under seal.                                  Service Agreement



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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                          37555

                                               The Bradford Group Negotiated Service                    [Reserved for Product Description]                    Priority Mail
                                                  Agreement                                             Merchandise Return Service                            Outbound Priority Mail International
                                               Inbound International                                    [Reserved for Product Description]                    Inbound Air Parcel Post
                                               Canada Post—United States Postal Service                 Parcel Airlift (PAL)                                  Royal Mail Group Inbound Air Parcel Post
                                                  Contractual Bilateral Agreement for                   [Reserved for Product Description]                       Agreement
                                                  Inbound Market Dominant Services                      Registered Mail                                     Parcel Select
                                             Market Dominant Product Descriptions                       [Reserved for Product Description]                  Parcel Return Service
                                             First-Class Mail                                           Return Receipt                                      International
                                             [Reserved for Class Description]                           [Reserved for Product Description]                    International Priority Airlift (IPA)
                                               Single-Piece Letters/Postcards                           Return Receipt for Merchandise                        International Surface Airlift (ISAL)
                                               [Reserved for Product Description]                       [Reserved for Product Description]                    International Direct Sacks—M-Bags
                                               Bulk Letters/Postcards                                   Restricted Delivery                                   Global Customized Shipping Services
                                               [Reserved for Product Description]                       [Reserved for Product Description]                    Inbound Surface Parcel Post (at non-UPU
                                               Flats                                                    Shipper-Paid Forwarding                                  rates)
                                               [Reserved for Product Description]                       [Reserved for Product Description]                    Canada Post—United States Postal Service
                                               Parcels                                                  Signature Confirmation                                   Contractual Bilateral Agreement for
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       Inbound Competitive Services (MC2009–
                                               Outbound Single-Piece First-Class Mail                   Special Handling                                         8 and CP2009–9)
                                                  International                                         [Reserved for Product Description]                    International Money Transfer Service
                                               [Reserved for Product Description]                       Stamped Envelopes                                     International Ancillary Services
                                               Inbound Single-Piece First-Class Mail                    [Reserved for Product Description]                  Special Services
                                                  International                                         Stamped Cards                                         Premium Forwarding Service
                                               [Reserved for Product Description]                       [Reserved for Product Description]                  Negotiated Service Agreements
                                             Standard Mail (Regular and Nonprofit)                      Premium Stamped Stationery                            Domestic
                                             [Reserved for Class Description]                           [Reserved for Product Description]                    Express Mail Contract 1 (MC2008–5)
                                               High Density and Saturation Letters                      Premium Stamped Cards                                 Express Mail Contract 2 (MC2009–3 and
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       CP2009–4)
                                               High Density and Saturation Flats/Parcels                International Ancillary Services                      Express Mail Contract 3 (MC2009–15 and
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       CP2009–21)
                                               Carrier Route                                            International Certificate of Mailing                  Express Mail & Priority Mail Contract 1
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       (MC2009–6 and CP2009–7)
                                               Letters                                                  International Registered Mail                         Express Mail & Priority Mail Contract 2
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       (MC2009–12 and CP2009–14)
                                               Flats                                                    International Return Receipt                          Express Mail & Priority Mail Contract 3
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       (MC2009–13 and CP2009–17)
                                               Not Flat-Machinables (NFMs)/Parcels                      International Restricted Delivery                     Express Mail & Priority Mail Contract 4
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       (MC2009–17 and CP2009–24)
                                             Periodicals                                                Address List Services                                 Express Mail & Priority Mail Contract 5
                                             [Reserved for Class Description]                           [Reserved for Product Description]                       (MC2009–18 and CP2009–25)
                                               Within County Periodicals                                Caller Service                                        Parcel Return Service Contract 1 (MC2009–
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       1 and CP2009–2)
                                               Outside County Periodicals                               Change-of-Address Credit Card                         Priority Mail Contract 1 (MC2008–8 and
                                               [Reserved for Product Description]                          Authentication                                        CP2008–26)
                                             Package Services                                           [Reserved for Product Description]                    Priority Mail Contract 2 (MC2009–2 and
                                             [Reserved for Class Description]                           Confirm                                                  CP2009–3)
                                               Single-Piece Parcel Post                                 [Reserved for Product Description]                    Priority Mail Contract 3 (MC2009–4 and
                                               [Reserved for Product Description]                       International Reply Coupon Service                       CP2009–5)
                                               Inbound Surface Parcel Post (at UPU rates)               [Reserved for Product Description]                    Priority Mail Contract 4 (MC2009–5 and
                                               [Reserved for Product Description]                       International Business Reply Mail Service                CP2009–6)
                                               Bound Printed Matter Flats                               [Reserved for Product Description]                    Priority Mail Contract 5 (MC2009–21 and
                                               [Reserved for Product Description]                       Money Orders                                             CP2009–26)
                                               Bound Printed Matter Parcels                             [Reserved for Product Description]                    Priority Mail Contract 6 (MC2009–25 and
                                               [Reserved for Product Description]                       Post Office Box Service                                  CP2009–30)
                                               Media Mail/Library Mail                                  [Reserved for Product Description]                    Priority Mail Contract 7 (MC2009–25 and
                                               [Reserved for Product Description]                     Negotiated Service Agreements                              CP2009–31)
                                             Special Services                                         [Reserved for Class Description]                        Priority Mail Contract 8 (MC2009–25 and
                                             [Reserved for Class Description]                           HSBC North America Holdings Inc.                         CP2009–32)
                                               Ancillary Services                                          Negotiated Service Agreement                       Priority Mail Contract 9 (MC2009–25 and
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       CP2009–33)
                                               Address Correction Service                               Bookspan Negotiated Service Agreement                 Priority Mail Contract 10 (MC2009–25 and
                                               [Reserved for Product Description]                       [Reserved for Product Description]                       CP2009–34)
                                               Applications and Mailing Permits                         Bank of America Corporation Negotiated                Priority Mail Contract 11 (MC2009–27 and
                                               [Reserved for Product Description]                          Service Agreement                                     CP2009–37)
                                               Business Reply Mail                                      The Bradford Group Negotiated Service                 Priority Mail Contract 12 (MC2009–28 and
                                               [Reserved for Product Description]                          Agreement                                             CP2009–38)
                                               Bulk Parcel Return Service                             Part B—Competitive Products                           Outbound International
                                               [Reserved for Product Description]                     Competitive Product List                                Global Direct Contracts (MC2009–9,
                                               Certified Mail                                         Express Mail                                               CP2009–10, and CP2009–11)
                                               [Reserved for Product Description]                       Express Mail                                          Global Expedited Package Services (GEPS)
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                                               Certificate of Mailing                                   Outbound International Expedited Services                Contracts
                                               [Reserved for Product Description]                       Inbound International Expedited Services              GEPS 1 (CP2008–5, CP2008–11, CP2008–
                                               Collect on Delivery                                      Inbound International Expedited Services 1               12, and CP2008–13, CP2008–18,
                                               [Reserved for Product Description]                          (CP2008–7)                                            CP2008–19, CP2008–20, CP2008–21,
                                               Delivery Confirmation                                    Inbound International Expedited Services 2               CP2008–22, CP2008–23, and CP2008–24)
                                               [Reserved for Product Description]                          (MC2009–10 and CP2009–12)                          Global Plus Contracts
                                               Insurance                                              Priority Mail                                           Global Plus 1 (CP2008–9 and CP2008–10)



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                                             37556             Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                               Global Plus 2 (MC2008–7, CP2008–16 and                 ENVIRONMENTAL PROTECTION                              containing new and/or revised
                                                  CP2008–17)                                          AGENCY                                                regulations to make them part of the
                                               Inbound International                                                                                        SIP. On May 22, 1997 (62 FR 27968),
                                               Inbound Direct Entry Contracts with                    40 CFR Part 52                                        EPA revised the procedures for
                                                  Foreign Postal Administrations                                                                            incorporating by reference Federally
                                                  (MC2008–6, CP2008–14 and CP2008–15)                 [FRL–8933–5]
                                                                                                                                                            approved SIPs, as a result of
                                               International Business Reply Service                                                                         consultations between EPA and the
                                                                                                      Approval and Promulgation of Air
                                                  Competitive Contract 1 (MC2009–14 and                                                                     Office of the Federal Register. The
                                                                                                      Quality Implementation Plans; Iowa;
                                                  CP2009–20)                                                                                                description of the revised SIP
                                                                                                      Update to Materials Incorporated by
                                             Competitive Product Descriptions                                                                               document, IBR procedures and
                                               Express Mail
                                                                                                      Reference
                                                                                                                                                            ‘‘Identification of plan’’ format are
                                               [Reserved for Group Description]                       AGENCY: Environmental Protection                      discussed in further detail in the May
                                               Express Mail                                           Agency (EPA).                                         22, 1997, Federal Register document.
                                               [Reserved for Product Description]                                                                              On February 12, 1999, EPA published
                                                                                                      ACTION: Final rule; notice of
                                               Outbound International Expedited Services                                                                    a document in the Federal Register (64
                                                                                                      administrative change.
                                               [Reserved for Product Description]                                                                           FR 7091) beginning the new IBR
                                               Inbound International Expedited Services               SUMMARY: EPA is updating the materials                procedure for Iowa. On September 23,
                                               [Reserved for Product Description]                     submitted by Iowa that are incorporated               2004 (69 FR 56942), EPA published an
                                               Priority                                               by reference (IBR) into the State                     update to the IBR material for Iowa.
                                               [Reserved for Product Description]                     implementation plan (SIP). The                           In this document, EPA is doing the
                                               Priority Mail                                          regulations affected by this update have              following:
                                               [Reserved for Product Description]                     been previously submitted by the State                   1. Announcing the update to the IBR
                                               Outbound Priority Mail International                   agency and approved by EPA. This                      material as of July 1, 2009.
                                               [Reserved for Product Description]                     update affects the SIP materials that are                2. Correcting the date format in the
                                               Inbound Air Parcel Post                                available for public inspection at the                ‘‘State effective date’’ or ‘‘State
                                               [Reserved for Product Description]                     National Archives and Records                         Submittal date’’ and ‘‘EPA approval
                                               Parcel Select                                                                                                date’’ columns in § 52.820 paragraphs
                                                                                                      Administration (NARA), the Air and
                                               [Reserved for Group Description]                                                                             (c), (d) and (e). Dates are numerical
                                                                                                      Radiation Docket and Information
                                               Parcel Return Service                                                                                        month/day/year without additional
                                                                                                      Center located at EPA Headquarters in
                                               [Reserved for Group Description]                                                                             zeros.
                                                                                                      Washington, DC, and the Regional
                                               International                                                                                                   3. Modifying the Federal Register
                                                                                                      Office.
                                               [Reserved for Group Description]                                                                             citation in § 52.820 paragraphs (c), (d)
                                               International Priority Airlift (IPA)                   DATES: Effective Date: This action is                 and (e) to reflect the beginning page of
                                               [Reserved for Product Description]                     effective July 29, 2009.                              the preamble as opposed to the page
                                               International Surface Airlift (ISAL)                   ADDRESSES: SIP materials which are                    number of the regulatory text.
                                               [Reserved for Product Description]                     incorporated by reference into 40 CFR                    4. Removing the second entry for 567–
                                               International Direct Sacks—M–Bags                      part 52 are available for inspection at               22.4 in § 52.820 paragraph (c) under
                                               [Reserved for Product Description]                     the following locations: Environmental                Chapter 22.
                                               Global Customized Shipping Services                    Protection Agency, Region 7, 901 North                   EPA has determined that today’s rule
                                               [Reserved for Product Description]                     5th Street, Kansas City, Kansas 66101;                falls under the ‘‘good cause’’ exemption
                                               International Money Transfer Service                   or at http://www.epa.gov/region07/                    in section 553(b)(3)(B) of the
                                               [Reserved for Product Description]                     programs/artd/air/rules/fedapprv.htm;                 Administrative Procedures Act (APA)
                                               Inbound Surface Parcel Post (at non-UPU                the Air and Radiation Docket and                      which, upon finding ‘‘good cause,’’
                                                  rates)                                              Information Center, EPA Headquarters                  authorizes agencies to dispense with
                                               [Reserved for Product Description]                     Library, Room Number 3334, EPA West                   public participation and section
                                               International Ancillary Services                       Building, 1301 Constitution Avenue,                   553(d)(3), which allows an agency to
                                               [Reserved for Product Description]
                                                                                                      NW., Washington, DC 20460, and the                    make a rule effective immediately
                                               International Certificate of Mailing
                                                                                                      National Archives and Records                         (thereby avoiding the 30-day delayed
                                               [Reserved for Product Description]
                                                                                                      Administration. If you wish to obtain                 effective date otherwise provided for in
                                               International Registered Mail
                                                                                                      materials from a docket in the EPA                    the APA). Today’s rule simply codifies
                                               [Reserved for Product Description]
                                                                                                      Headquarters Library, please call the                 provisions which are already in effect as
                                               International Return Receipt
                                                                                                      Office of Air and Radiation Docket at                 a matter of law in Federal and approved
                                               [Reserved for Product Description]
                                               International Restricted Delivery
                                                                                                      (202) 566–1742. For information on the                State programs. Under section 553 of the
                                               [Reserved for Product Description]
                                                                                                      availability of this material at NARA,                APA, an agency may find good cause
                                               International Insurance
                                                                                                      call (202) 741–6030, or go to: http://                where procedures are ‘‘impractical,
                                               [Reserved for Product Description]                     www.archives.gov/federal_register/                    unnecessary, or contrary to the public
                                               Negotiated Service Agreements                          code_of_federal_regulations/                          interest.’’ Public comment is
                                               [Reserved for Group Description]                       ibr_locations.html.                                   ‘‘unnecessary’’ and ‘‘contrary to the
                                               Domestic                                               FOR FURTHER INFORMATION CONTACT:
                                                                                                                                                            public interest’’ since the codification
                                               [Reserved for Product Description]                     Evelyn VanGoethem at (913) 551–7659,                  only reflects existing law. Immediate
                                               Outbound International                                 or by e-mail at                                       notice in the CFR benefits the public by
                                               [Reserved for Group Description]                       vangoethem.evelyn@epa.gov.                            providing notice of the updated Iowa
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                                             Part C—Glossary of Terms and Conditions                                                                        SIP compilation.
                                                  [Reserved]
                                                                                                      SUPPLEMENTARY INFORMATION:    The SIP is
                                                                                                      a living document which the State                     Statutory and Executive Order Reviews
                                             Part D—Country Price Lists for International
                                                  Mail [Reserved]                                     revises as necessary to address the                     Under the Clean Air Act, the
                                                                                                      unique air pollution problems in the                  Administrator is required to approve a
                                             [FR Doc. E9–18030 Filed 7–28–09; 8:45 am]                State. Therefore, EPA from time to time               SIP submission that complies with the
                                             BILLING CODE 7710–FW–P                                   must take action on SIP revisions                     provisions of the Act and applicable


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                                                               Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                37557

                                             Federal regulations. 42 U.S.C. 7410(k);                  located in the State, and EPA notes that                   Authority: 42 U.S.C. 7401 et seq.
                                             40 CFR 52.02(a). Thus, in reviewing SIP                  it will not impose substantial direct
                                             submissions, EPA’s role is to approve                    costs on tribal governments or preempt                 Subpart Q—Iowa
                                             State choices, provided that they meet                   tribal law.
                                             the criteria of the Clean Air Act.                          The Congressional Review Act, 5                     ■ 2. In § 52.820 paragraphs (b), (c), (d)
                                             Accordingly, this action merely                          U.S.C. 801 et seq., as added by the Small              and (e) are revised to read as follows:
                                             approves State law as meeting Federal                    Business Regulatory Enforcement
                                             requirements and does not impose                         Fairness Act of 1996, generally provides               § 52.820    Identification of plan.
                                             additional requirements beyond those                     that before a rule may take effect, the                *      *    *     *     *
                                             imposed by State law. For that reason,                   agency promulgating the rule must                         (b) Incorporation by reference. (1)
                                             this action:                                             submit a rule report, which includes a                 Material listed in paragraphs (c) and (d)
                                                • Is not a ‘‘significant regulatory                   copy of the rule, to each House of the                 of this section with an EPA approval
                                             action’’ subject to review by the Office                 Congress and to the Comptroller General                date prior to July 1, 2009, was approved
                                             of Management and Budget under                           of the United States. EPA will submit a                for incorporation by reference by the
                                             Executive Order 12866 (58 FR 51735,                      report containing this action and other                Director of the Federal Register in
                                             October 4, 1993);                                        required information to the U.S. Senate,               accordance with 5 U.S.C. 552(a) and 1
                                                • Does not impose an information                      the U.S. House of Representatives, and                 CFR part 51. Material is incorporated as
                                             collection burden under the provisions                   the Comptroller General of the United                  it exists on the date of the approval, and
                                             of the Paperwork Reduction Act (44                       States prior to publication of the rule in             notice of any change in the material will
                                             U.S.C. 3501 et seq.);                                    the Federal Register. A major rule                     be published in the Federal Register.
                                                • Is certified as not having a                        cannot take effect until 60 days after it              Entries in paragraphs (c) and (d) of this
                                             significant economic impact on a                         is published in the Federal Register.                  section with EPA approval dates after
                                             substantial number of small entities                     This action is not a ‘‘major rule’’ as                 July 1, 2009, will be incorporated by
                                             under the Regulatory Flexibility Act (5                  defined by 5 U.S.C. 804(2).                            reference in the next update to the SIP
                                             U.S.C. 601 et seq.);                                        EPA has also determined that the
                                                • Does not contain any unfunded                                                                              compilation.
                                                                                                      provisions of section 307(b)(1) of the
                                             mandate or significantly or uniquely                                                                               (2) EPA Region 7 certifies that the
                                                                                                      Clean Air Act pertaining to petitions for
                                             affect small governments, as described                                                                          rules/regulations provided by EPA in
                                                                                                      judicial review are not applicable to this
                                             in the Unfunded Mandates Reform Act                                                                             the SIP compilation at the addresses in
                                                                                                      action. This action is simply an
                                             of 1995 (Pub. L. 104–4);                                                                                        paragraph (b)(3) of this section are an
                                                                                                      announcement of prior rulemakings that
                                                • Does not have Federalism                            have previously undergone notice and
                                                                                                                                                             exact duplicate of the officially
                                             implications as specified in Executive                                                                          promulgated State rules/regulations
                                                                                                      comment. Prior EPA rulemaking actions
                                             Order 13132 (64 FR 43255, August 10,                                                                            which have been approved as part of the
                                                                                                      for each individual component of the
                                             1999);                                                                                                          SIP as of July 1, 2009.
                                                                                                      Iowa SIP compilation previously
                                                • Is not an economically significant                                                                            (3) Copies of the materials
                                                                                                      afforded interested parties the
                                             regulatory action based on health or                                                                            incorporated by reference may be
                                                                                                      opportunity to file a petition for judicial
                                             safety risks subject to Executive Order                                                                         inspected at the Environmental
                                                                                                      review in the United States Court of
                                             13045 (62 FR 19885, April 23, 1997);                                                                            Protection Agency, Region 7, Air
                                                • Is not a significant regulatory action              Appeals for the appropriate circuit
                                                                                                      within 60 days of such rulemaking                      Planning and Development Branch, 901
                                             subject to Executive Order 13211 (66 FR                                                                         North 5th Street, Kansas City, Kansas
                                             28355, May 22, 2001);                                    action.
                                                                                                                                                             66101; at the EPA, Air and Radiation
                                                • Is not subject to requirements of                   List of Subjects in 40 CFR Part 52                     Docket and Information Center, Room
                                             Section 12(d) of the National
                                                                                                        Environmental protection, Air                        Number 3334, EPA West Building, 1301
                                             Technology Transfer and Advancement
                                                                                                      pollution control, Carbon monoxide,                    Constitution Avenue, NW., Washington,
                                             Act of 1995 (15 U.S.C. 272 note) because
                                                                                                      Incorporation by reference,                            DC 20460; or at the National Archives
                                             application of those requirements would
                                                                                                      Intergovernmental relations, Lead,                     and Records Administration (NARA). If
                                             be inconsistent with the Clean Air Act;
                                                                                                      Nitrogen dioxide, Ozone, Particulate                   you wish to obtain material from the
                                             and
                                                • Does not provide EPA with the                       matter, Reporting and recordkeeping                    EPA Regional Office, please call (913)
                                             discretionary authority to address, as                   requirements, Sulfur oxides, Volatile                  551–7659; for material from a docket in
                                             appropriate, disproportionate human                      organic compounds.                                     EPA Headquarters Library, please call
                                             health or environmental effects, using                    Dated: July 8, 2009.                                  the Office of Air and Radiation Docket
                                             practicable and legally permissible                      William Rice,
                                                                                                                                                             at (202) 566–1742. For information on
                                             methods, under Executive Order 12898                                                                            the availability of this material at
                                                                                                      Acting Regional Administrator, Region 7.
                                             (59 FR 7629, February 16, 1994).                                                                                NARA, call (202) 741–6030, or go to:
                                                In addition, this rule does not have                  ■    40 CFR part 52 is amended as follows:             http://www.archives.gov/
                                             tribal implications as specified by                                                                             federal_register/
                                                                                                      PART 52—[AMENDED]                                      code_of_federal_regulations/
                                             Executive Order 13175 (65 FR 67249,
                                             November 9, 2000), because the SIP is                    ■ 1. The authority for citation for part 52            ibr_locations.html.
                                             not approved to apply in Indian country                  continues to read as follows:                             (c) EPA-approved regulations.
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                                             37558              Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations

                                                                                                                 EPA-APPROVED IOWA REGULATIONS
                                                                                                                                       State effective
                                                 Iowa citation                                    Title                                                       EPA approval date                   Explanation
                                                                                                                                            date

                                                                                Iowa Department of Natural Resources Environmental Protection Commission [567]
                                                                                         Chapter 20—Scope of Title-Definitions-Forms-Rule of Practice

                                             567–20.1 ................   Scope of Title .........................................                    N/A      8/6/07, 72 FR         This rule is a non-substantive descrip-
                                                                                                                                                                43539.                tion of the Chapters contained in the
                                                                                                                                                                                      Iowa rules. EPA has not approved all
                                                                                                                                                                                      of the Chapters to which this rule re-
                                                                                                                                                                                      fers.
                                             567–20.2 ................   Definitions ..............................................               3/19/08     8/25/08, 73 FR        The definitions for anaerobic lagoon,
                                                                                                                                                                49950.                odor, odorous substance, and odor-
                                                                                                                                                                                      ous substance source, are not SIP
                                                                                                                                                                                      approved.
                                             567–20.3 ................   Air Quality Forms Generally ..................                           4/24/02     3/7/03, 68 FR
                                                                                                                                                                10969.

                                                                                                                             Chapter 21—Compliance

                                             567–21.1 ................   Compliance Schedule ............................                         7/12/06     8/6/07, 72 FR
                                                                                                                                                                43539.
                                             567–21.2 ................   Variances ...............................................                 4/4/07     10/16/07, 72 FR
                                                                                                                                                                58535.
                                             567–21.3 ................   Emission Reduction Program ................                              3/14/90     6/29/90, 55 FR
                                                                                                                                                                26690.
                                             567–21.4 ................   Circumvention of Rules ..........................                        3/14/90     6/29/90, 55 FR
                                                                                                                                                                26690.
                                             567–21.5 ................   Evidence Used in Establishing That a                                    11/16/94     10/30/95, 60 FR
                                                                           Violation Has or Is Occurring.                                                       55198.

                                                                                                                       Chapter 22—Controlling Pollution

                                             567–22.1 ................   Permits Required for New or Existing                                     3/19/08     8/25/08, 73 FR
                                                                           Stationary Sources.                                                                  49950.
                                             567–22.2 ................   Processing Permit Applications .............                              4/9/97     6/25/98, 63 FR
                                                                                                                                                                34600.
                                             567–22.3 ................   Issuing Permits ......................................                   7/13/05     12/20/05, 70 FR       Subrule 22.3(6) is not SIP approved.
                                                                                                                                                                75399.
                                             567–22.4 ................   Special Requirements for Major Sta-                                      11/1/06     5/14/07, 72 FR
                                                                            tionary Sources Located in Areas                                                    27056.
                                                                            Designated Attainment or Unclassi-
                                                                            fied (PSD).
                                             567–22.5 ................   Special Requirements for Nonattain-                                      7/21/99     3/4/02, 67 FR 9591.
                                                                            ment Areas.
                                             567–22.8 ................   Permit by Rule .......................................                   7/21/99     3/4/02, 67 FR 9591.
                                             567–22.9 ................   Special Requirements for Visibility Pro-                                 4/20/05     9/13/05, 70 FR
                                                                            tection.                                                                            53939.
                                             567–22.10 ..............    Permitting Requirements for Country                                      3/19/08     8/25/08, 49950.
                                                                            Grain Elevators, Country Grain Ter-
                                                                            minal Elevators, Grain Terminal Ele-
                                                                            vators and Feed Mill Equipment.
                                             567–22.105 ............     Title V Permit Applications .....................                       11/16/94     10/30/95, 60 FR       Only subparagraph (2)i(5) is included in
                                                                                                                                                                55198.               the SIP.
                                             567–22.200 ............     Definitions for Voluntary Operating Per-                                10/18/95     4/30/96, 61 FR
                                                                           mits.                                                                                18958.
                                             567–22.201 ............     Eligibility for Voluntary Operating Per-                                  4/4/07     10/16/07, 72 FR
                                                                           mits.                                                                                58535.
                                             567–22.202 ............     Requirement To Have a Title V Permit                                      4/9/97     6/25/98, 63 FR
                                                                                                                                                                34600.
                                             567–22.203 ............     Voluntary Operating Permit Applications                                 10/14/98     3/4/02, 67 FR 9591.
                                             567–22.204 ............     Voluntary Operating Permit Fees ..........                              12/14/94     4/30/96, 61 FR
                                                                                                                                                                18958.
                                             567–22.205 ............     Voluntary Operating Permit Processing                                   12/14/94     4/30/96, 61 FR
                                                                           Procedures.                                                                          18958.
                                             567–22.206 ............     Permit Content .......................................                  10/18/95     4/30/96, 61 FR
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                                                                                                                                                                18958.
                                             567–22.207 ............     Relation to Construction Permits ...........                            12/14/94     4/30/96, 61 FR
                                                                                                                                                                18958.
                                             567–22.208 ............     Suspension, Termination, and Revoca-                                    12/14/94     4/30/96, 61 FR
                                                                           tion of Voluntary Operating Permits.                                                 18958.
                                             567–22.209 ............     Change of Ownership for Facilities With                                  7/13/05     12/20/05, 70 FR
                                                                           Voluntary Operating Permits.                                                         75399.



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                                                                Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations                                                           37559

                                                                                                      EPA-APPROVED IOWA REGULATIONS—Continued
                                                                                                                                       State effective
                                                 Iowa citation                                    Title                                                       EPA approval date                  Explanation
                                                                                                                                            date

                                             567–22.300 ............     Operating Permit by Rule for Small                                        4/4/07     10/16/07, 72 FR
                                                                          Sources.                                                                              58535.

                                                                                                          Chapter 23—Emission Standards for Contaminants

                                             567–23.1 ................   Emission Standards ...............................                      10/14/98     5/22/00, 65 FR        Subrules 23.1(2)–(5) are not SIP ap-
                                                                                                                                                                32030.                proved.
                                             567–23.2 ................   Open Burning .........................................                   1/14/04     11/3/04, 69 FR        Subrule 23.2(3)g(2) was not submitted
                                                                                                                                                                63945.                for approval. Variances from open
                                                                                                                                                                                      burning rule 23.2(2) are subject to
                                                                                                                                                                                      EPA approval.
                                             567–23.3 ................   Specific Contaminants ...........................                       12/15/04     5/31/07, 72 FR        Subrule 23.3(3) ‘‘(d)’’ is not SIP ap-