A notice of proposed rulemaking and notice of public hearing that appeared in the Federal Register on Thursday, April 14, 2005, (70 FR 19722), announced that a public hearing was scheduled for July 27, 2005, at 10 a.m., in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue, NW., Washington, DC. The subject of the public hearing is under section 7701 of the Internal Revenue Code.

The public comment period for these regulations expired on July 13, 2005. The outlines of oral comments were due on July 6, 2005. The notice of proposed rulemaking and notice of public hearing, instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Wednesday, July 13, 2005, no one has requested to speak. Therefore, the public hearing scheduled for July 27, 2005, is cancelled.

Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend 26 CFR part 301 relating to section 6020. The temporary regulations retain the method by which an internal revenue officer or employee prepares a return under section 6020(a). Further, the temporary regulations provide that a document (or set of documents) signed by an authorized internal revenue officer or employee is a return under section 6020(b) if the document (or set of documents) identifies the taxpayer by name and taxpayer identification number, contains sufficient information from which to compute the taxpayer's tax liability, and the document (or set of documents) purport to be a return under section 6020(b). A Form 13496, “IRC Section 6020(b) Certification,” or any other form that an authorized internal revenue officer or employee signs and uses to identify a document (or set of documents) containing the information set forth above as a section 6020(b) return, and the documents identified, constitute a valid section 6020(b) return. The text of those regulations also serve as the text of these proposed regulations. The preamble to the temporary regulations explains the amendments.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and 8 copies) and electronic comments that are submitted timely to the IRS. The IRS and Treasury specifically request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register .

The principal author of these regulations is Tracey B. Leibowitz, of the Office of the Associate Chief Counsel (Procedure and Administration), Administrative Provisions and Judicial Practice Division.

Accordingly, 26 CFR part 301 is proposed to be amended to read as follows:

For further information, please see the information provided in the direct final action, Delaware's Ambient Air Quality Standard for Ozone and Fine Particulate Matter, that is located in the “Rules and Regulations” section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The supporting document for this site designation is the Final Environmental Impact Statement for the Site Designation of the LA-3 Ocean Dredged Material Disposal Site off Newport Bay, Orange County, California. This document is available for public inspection at the following locations:

Entities potentially affected by this action are persons, organizations, or government bodies seeking to dispose of dredged material in ocean waters at the LA-3 and LA-2 ODMDS, under the Marine Protection Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. The Rule would be primarily of relevance to parties in the Los Angeles and Orange County areas seeking permits from the USACE to transport dredged material for the purpose of disposal into ocean waters at the LA-3 and LA-2 ODMDS, as well as the USACE itself (when proposing to dispose of dredged material at the LA-3 and LA-2 ODMDS). Potentially affected categories and entities seeking to use the LA-3 and LA-2 ODMDS and thus subject to this Rule include:

This table lists the types of entities that EPA is now aware potentially could be affected. EPA notes, however, that nothing in this Rule alters in any way, the jurisdiction of EPA, or the types of entities regulated under the Marine Protection Research and Sanctuaries Act. To determine if you or your organization is potentially affected by this action, you should carefully consider whether you expect to propose ocean disposal of dredged material, in accordance with the Purpose and Scope provisions of 40 CFR 220.1, and if you wish to use the LA-3 and/or LA-2 ODMDS. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION section.

Ocean disposal of dredged materials is regulated under Title I of the Marine Protection, Research and Sanctuaries Act (MPRSA; 33 U.S.C. 1401 et seq. ). The EPA and the USACE share responsibility for the management of ocean disposal of dredged material. Under Section 102 of MPRSA, EPA has the responsibility for designating an acceptable location for the ODMDS. With concurrence from EPA, the USACE issues permits under MPRSA Section 103 for ocean disposal of dredged material deemed suitable according to EPA criteria in MPRSA Section 102 and EPA regulations in Title 40 of the Code of Federal Regulations Part 227 (40 CFR part 227).

It is EPA's policy to publish an EIS for all ODMDS designations ( Federal Register , Volume 63, Page 58045 [63 FR 58045], October 1998). A site designation EIS is a formal evaluation of alternative sites which examines the potential environmental impacts associated with disposal of dredged material at various locations. The EIS must first demonstrate the need for the proposed ODMDS designation action (40 CFR 6.203(a) and 40 CFR 1502.13) by describing available or potential aquatic and non-aquatic ( i.e. , land-based) alternatives and the consequences of not designating a site—the No Action Alternative. Once the need for an ocean disposal site is established, potential sites are screened for feasibility through the Zone of Siting Feasibility (ZSF) process. Remaining alternative sites are evaluated using EPA's ocean disposal criteria at 40 CFR part 228 and compared in the EIS. Of the sites which satisfy these criteria, the site which best complies with them is selected as the preferred alternative for formal designation through rulemaking published in the Federal Register (FR).

Formal designation of an ODMDS in the Federal Register does not constitute approval of dredged material for ocean disposal. Designation of an ODMDS provides an ocean disposal alternative for consideration in the review of each proposed dredging project. Ocean disposal is only allowed when EPA and USACE determine that the proposed activity is environmentally acceptable according to the criteria at 40 CFR Part 227. Decisions to allow ocean disposal are made on a case-by-case basis through the MPRSA Section 103 permitting process or its equivalent process for USACE's Civil Works projects. Material proposed for disposal at a designated ODMDS must conform to EPA's permitting criteria for acceptable quality (40 CFR Parts 225 and 227), as determined from physical, chemical, and bioassay/bioaccumulation testing (EPA and USACE 1991). Only clean non-toxic dredged material is acceptable for ocean disposal.

The interim LA-3 disposal site is located on the continental slope of Newport Submarine Canyon at a depth of about 1,475 feet (ft) (450 meters [m]), approximately 4.3 nmi (8 km) southwest of the entrance of Newport Harbor. This region is characterized by a relatively smooth continental slope (approximately two-degree slope) incised by a complicated pattern of meandering broad submarine canyons that can be up to 98 ft (30 m) deep and 656-2,625 ft (200-800 m) wide. The circular interim site boundary is centered at 33° 31′42″ N and 117° 54′48″ W, with a 3,000 ft (915 m) radius.

The interim LA-3 site has been used for disposing sediment dredged from harbors and flood channels within the County of Orange since 1976. Prior to 1992, LA-3 was permitted by the USACE as a designated ocean disposal site for specific projects only. In 1992, the EPA approved LA-3 as an interim disposal site; this interim status expired January 1, 1997 (Water Resources Development Act [WRDA] 1992). The expiration date was extended to January 1, 2000, through the 1996 WRDA (1996). In 1999, this interim status was extended for another three years and expired December 31, 2002. The proposed action would provide permanent designation of LA-3 for disposal of dredged materials from ongoing dredging activities, such as dredging to preserve the wetland habitat within the Upper Newport Bay or to maintain navigation channels at Newport and Dana Point Harbors.

The proposed action would also shift the center of the LA-3 site approximately 1.3 nmi (2.4 km) to the southeast of the interim LA-3 site. The circular boundary of the permanently designated LA-3 site would be centered at 33° 31′00″ N and 117° 53′30″ W and would have a 3,000 ft (915 m) radius. The depth of the center of the site would be approximately 1,600 ft (490 m). At this location the site boundary would be away from the submarine canyons that run through the interim site, thus simplifying surveillance and monitoring activities.

The LA-2 ODMDS was designated as a permanent disposal site on February 15, 1991. The LA-2 site is located on the outer continental shelf, margin, and upper southern wall of the San Pedro Sea Valley at depths from approximately 360-1,115 ft (110 to 340 m), about 5.9 nmi (11 km) south-southwest of the entrance to Los Angeles Harbor. The relatively flat continental shelf occurs in water depths to about 410 ft (125 m) with a regional slope of 0.8 degree. Then the slope becomes steep at about 7 degrees seaward to the shelf break. The southern wall of the San Pedro Sea Valley drops away with slopes steeper than 9 degrees. The site boundary is centered at 33° 37′6″ N and 118° 17′24″ W with a radius of 3,000 ft (915 m).

The LA-2 ODMDS does not have an annual disposal volume limit. However, the site designation EIS evaluated potential impacts based on a historical annual average of 200,000 yd 3 (153,000 m 3 ). Since 1991, the annual disposal quantity occasionally has exceeded the pre-designation historical annual average because of capital projects from both the ports of Los Angeles and Long Beach.

The need for ongoing ocean disposal capacity is based on historical dredging volumes from the local port districts, marinas and harbors, and federal navigational channels, as well as on estimates of future average annual dredging. An overall average of approximately 390,000 yd 3 (298,000 m 3 ) per year of dredged material requiring ocean disposal is expected to be generated in the area. The purpose of the proposed action is to ensure that adequate, environmentally-acceptable ocean disposal site capacity, in conjunction with other management options including upland disposal and beneficial reuse, is available for suitable dredged material generated in the greater Los Angeles County-Orange County area.

EPA and USACE encourage the use of dredged material for beach replenishment in areas degraded by erosion. The grain size distribution of dredged material must be compatible with the receiving beach, and biological and water quality impacts must be considered prior to permitting of beach disposal. EPA and USACE evaluate the selection of appropriate disposal methods on a case-by-case basis for each permit. Additionally, opportunities arise periodically to use dredged material for marine landfilling projects, also referred to as the creation of “fastlands.” When the need arises, the use of dredged material for the creation of fastlands is considered a viable alternative to ocean disposal. Other potential beneficial uses for dredged material include construction fill, use as cap material in aquatic remediation projects, wetland creation, wetland restoration, landfill daily cover, and recycling into commercial products such as construction aggregate, ceramic tiles, or other building materials. Each of these disposal management options is evaluated when permits are issued for individual dredging projects.

A Zone of Siting Feasibility (ZSF) analysis estimates that after consideration of upland disposal and other beneficial uses, an average of approximately 390,000 yd 3 (298,000 m 3 ) per year of dredged material will require ocean disposal. This material would be proposed for ocean disposal by project proponents because it is not of an appropriate physical quality ( e.g. , it is predominantly fine-grained material) for reuse or because a reuse opportunity cannot be found that coincides with the timing of the dredging projects.

The LA-2 ODMDS is approximately 5.9 nmi (11 km) offshore from the entrance to the Port of Los Angeles and approximately 8.4 nmi (15.5 km) from the entrance to the Port of Long Beach. The majority of suitable dredged material from USACE and port dredging projects in the Los Angeles County area that could not be beneficially reused has traditionally been disposed of at this site. When EPA originally designated LA-2 as a permanent disposal site in 1991, it evaluated the past history of disposal at the site up to that time and determined that significant adverse environmental impacts were unlikely to occur if similar levels of disposal continued there in the future.

Most dredging projects from the Orange County area have not used the LA-2 site because of the extra costs and increased environmental impacts (such as increased air emissions) associated with transporting dredged material the longer distance to this site. Instead, projects traditionally have used the LA-3 interim site, located approximately 4.3 nmi (8 km) offshore from Newport Bay. The LA-3 interim disposal site was originally scheduled to close down on January 1, 1997, but the interim designation was extended by Congress until January 1, 2000 to allow a major Newport Bay dredging project to be completed (the approximately 1,000,000 yd 3 [765,000 m 3 ] project to restore depth to sediment basins located in Upper Newport Bay). LA-3 was the only interim site in the nation specifically extended in this manner. Most recently, via the WRDA of 1999, Congress extended the status of LA-3 as an interim ODMDS for another three years (until December 31, 2002) to allow time for site designation studies and completion of the site designation EIS.

The proposed action provides for adequate, environmentally-acceptable ocean disposal site capacity for suitable dredged material generated in the greater Los Angeles County-Orange County area by permanently designating the LA-3 ODMDS.

The proposed action is final designation of the LA-3 ODMDS managed at a maximum annual dredged material disposal quantity of 2,500,000 yd 3 (1,911,000 m 3 ) and the management of LA-2 at an increased maximum annual dredged material disposal quantity of 1,000,000 yd 3 (765,000 m 3 ) for the ocean disposal of dredged material from the Los Angeles and Orange County region. The need for ongoing ocean disposal capacity is based on historical dredging volumes from the local port districts, marinas and harbors, and federal navigational channels, as well as estimates of future average annual dredging.

Verification that significant impacts do not occur outside of the disposal site boundaries will be demonstrated through implementation of the Site Management and Monitoring Plan (SMMP) developed as part of the proposed action. The main purpose of the SMMP is to provide a structured framework for resource agencies to ensure that dredged material disposal activities will not unreasonably degrade or endanger human health, welfare, the marine environment, or economic potentialities (Section 103(a) of the MPRSA). Three main objectives for management of both the LA-2 and LA-3 ODMDSs are: (1) Protection of the marine environment; (2) beneficial use of dredged material whenever practical; and (3) documentation of disposal activities at the ODMDS.

The EPA and USACE Los Angeles District personnel will achieve these objectives by jointly administering the following activities: (1) Regulation and administration of ocean disposal permits; (2) development and maintenance of a site monitoring program; (3) evaluation of permit compliance and monitoring results; and (4) maintenance of dredged material testing and site monitoring records to insure compliance with annual disposal volume targets and to facilitate future revisions to the SMMP.

The SMMP includes periodic physical monitoring to confirm that the material that is deposited is landing where it is supposed to land, as well as chemical monitoring to confirm that the sediment chemistry conforms to the pre-disposal testing requirements. Other activities implemented through the SMMP to achieve these objectives include: (1) Regulating quantities and types of material to be disposed of, and the time, rates, and methods of disposal; and (2) recommending changes for site use, disposal amounts, or designation for a limited time based on periodic evaluation of site monitoring results.

Five general criteria and 11 specific site selection criteria are used in the selection and approval of ocean disposal sites for continued use (40 CFR 228.5 and 40 CFR 228.6(a)).

1. The dumping of materials into the ocean will be permitted only at sites or in areas selected to minimize the interference of disposal activities with other activities in the marine environment, particularly avoiding areas of existing fisheries or shellfisheries, and regions of heavy commercial or recreational navigation. Dredged material disposal activities have occurred at the LA-2 and LA-3 sites since the late 1970s. Historical disposal at the interim LA-3 site has not interfered with commercial or recreational navigation, commercial fishing, or sportfishing activities. Disposal at the LA-2 site, while located within the U.S. Coast Guard Traffic Separation Scheme, has not interfered with these activities. The continued use of these sites would not change these conditions.

2. Locations and boundaries of disposal sites will be so chosen that temporary perturbations in water quality or other environmental conditions during initial mixing caused by disposal operations anywhere within the site can be expected to be reduced to normal ambient seawater levels or to undetectable contaminant concentrations or effects before reaching any beach, shoreline, marine sanctuary, or known geographically limited fishery or shellfishery. The LA-2 and LA-3 sites are sufficiently removed from shore and limited fishery resources to allow water quality perturbations caused by dispersion of disposal material to be reduced to ambient conditions before reaching environmentally sensitive areas.

3. If at any time during or after disposal site evaluation studies, it is determined that existing disposal sites presently approved on an interim basis for ocean dumping do not meet the criteria for site selection set forth in Sections 228.5 through 228.6, the use of such sites will be terminated as soon as suitable alternate disposal sites can be designated. Evaluation of the LA-2 and LA-3 sites indicates that they presently do and would continue to comply with these criteria. Additionally, compliance will continue to be evaluated through implementation of the Site Monitoring and Management Plan (SMMP).

4. The sizes of the ocean disposal sites will be limited in order to localize for identification and control any immediate adverse impacts and permit the implementation of effective monitoring and surveillance programs to prevent adverse long-range impacts. The size, configuration, and location of any disposal site will be determined as a part of the disposal site evaluation or designation study. The LA-2 and LA-3 disposal sites are circular areas with a 3,000 ft (915 m) radius. The size of the sites has been determined by computer modeling to limit environmental impacts to the surrounding area and facilitate surveillance and monitoring operations. The designation of the size, configuration, and location of sites was determined as part of the evaluation study.

5. EPA will, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf and other such sites that have been historically used. The LA-3 site is located beyond the continental shelf, near a canyon on the continental slope, in an area that has been used historically for the disposal of dredged material. LA-3 is the only site in the vicinity that fully meets the above criteria. The LA-2 site, which has been permanently designated and has been used for the ocean disposal of dredged material since 1977, is located near the edge of the continental shelf at the 600 ft (183 m) contour.

1. Geographical position, depth of water, bottom topography, and distance from the coast. Centered at 33°31′00″ N, 117°53′30″ W, the LA-3 site bottom topography is gently sloping from approximately 1,500 to 1,675 ft (460 to 510 m). Situated near the slope of a submarine canyon, the site center is approximately 4.5 nmi (8.5 km) from the mouth of Newport Harbor. The LA-2 site is at the top edge of the continental slope in approximately 360 ft to 1,115 ft (110 to 340 m) of water. Centered at 33°37′06″ N and 118°17′24″ W, the LA-2 site is located just south of the San Pedro Valley submarine canyon, approximately 5.9 nmi (11 km) from the entrance to Los Angeles Harbor.

2. Location in relation to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases. The LA-2 and LA-3 sites are located in areas that are utilized for feeding and breeding of resident species. The LA-3 site is located in the gray whale migration route area, while the LA-2 site is located near the migration route. The California gray whale population was severely reduced in the 1800s and 1900s due to international whaling. However, protection from commercial whaling initiated in the 1940s has allowed the population to recover. There is no indication that disposal activities at LA-2 or LA-3 have adversely affected the gray whale. There are no known special breeding or nursery areas in the vicinity of the two disposal sites.

3. Location in relation to beaches and other amenity areas. The LA-3 site boundary is located over 3.5 nmi (6.5 km) offshore of the nearest coast in the Newport Beach and Harbor area. The LA-2 site boundary is located over 4.6 nmi (8.5 km) offshore from the nearest coast in the Palos Verdes area. Other beach areas are more distant. No adverse impacts from dredged material disposal operations are expected on these amenity areas.

4. Types and quantities of wastes proposed to be disposed of, and proposed methods of release, including methods of packaging the waste, if any. Dredged material to be disposed of will be predominantly clays and silts primarily originating from the Los Angeles/Long Beach Harbor area and from Newport Bay and Harbor. Average annual disposal volumes at LA-3 range from 0 to approximately 337,000 yd 3 (0 to 258,000 m 3 ). Average annual disposal volumes at LA-2 range from 68,000 yd 3 to approximately 405,000 yd 3 (52,000 to 310,000 m 3 ).

Dredged material is expected to be released from split hull barges. No dumping of toxic materials or industrial or municipal waste would be allowed. Dredged material proposed for ocean disposal is subject to strict testing requirements established by the EPA and USACE, and only clean (non-toxic) dredged materials are allowed to be disposed at the LA-3 and LA-2 sites.

5. Feasibility of surveillance and monitoring. The EPA (and USACE for federal projects in consultation with EPA) is responsible for site and compliance monitoring. USCG is responsible for vessel traffic-related monitoring. Monitoring the disposal sites is feasible but somewhat complicated by topography. At LA-3, this complication is reduced by relocation of the permanent LA-3 site away from submarine canyons.

6. Dispersal, horizontal transport, and vertical mixing characteristics of the area, including prevailing current direction and velocity, if any. Currents and vertical mixing will disperse unconsolidated fine grained dredged sediments in the upper water column in the vicinity of ODMDS boundaries. Prevailing currents are primarily parallel to shore and flow along constant depth contours. Situated near the slope of a submarine canyon, the LA-3 area would be expected to receive sedimentation from erosion and nearshore transport into the canyon. At LA-2, some sediment transport offshore occurs due to slumping. Overall, the seabed at both sites are considered to be non-dispersive, and sediments at both sites are expected to settle and remain offshore (as opposed to onshore).

7. Existence and effects of current and previous discharges and dumping in the area (including cumulative effects). Localized physical impacts have occurred to sediments and benthic biota within the disposal sites due to past disposal operations. However, these activities have not resulted in long-term significant adverse impacts on the local environment. No interactions with other discharges are anticipated due to the distances from the discharge points.

8. Interference with shipping, fishing, recreation, mineral extraction, desalination, fish and shellfish culture, areas of special scientific importance, and other legitimate uses of the ocean. Continued use of the LA-2 and LA-3 sites would result in minor interferences with commercial shipping and fishing vessels due to disposal barge traffic. Sites are not located within active oil or natural gas tracts. Continued disposal operations are not anticipated to adversely impact existing nearby oil and gas development facilities or tracts, or other socioeconomic resources. Overall, no significant interferences associated with this criterion are expected to result from continued use of the LA-2 and LA-3 sites.

9. Existing water quality and ecology of the site as determined by available data or by trend assessment or baseline surveys. Water quality at the two disposal areas is good, but temporary, localized physical impacts have occurred to sediments and benthic ecology due to past disposal operations. Additionally, dredged material deposited in the past at the two disposal areas was chemically screened prior to disposal, and no known dredged material was disposed of for which chemical concentrations exceeded the range of chemical concentrations approved for ocean disposal.

10. Potentiality for the development or recruitment of nuisance species in the disposal site. The potential is low due to depth differences between the disposal sites and the likely sources of dredged material.

11. Existence at or in close proximity to the site of any significant natural or cultural features of historical importance. No known shipwrecks or other cultural resources occur within 2.7 nmi (5 km) of either the LA-2 or proposed LA-3 disposal sites.

The draft EIS was published in the Federal Register on January 21, 2005. A 45-day public review and comment period extended from the publication date through March 7, 2005. Six comment letters from various individuals, organizations, and agencies were received during the public review and comment period. In addition to the six comment letters, two public meetings were held on Wednesday, February 9, 2005, to solicit comments from interested parties. The comments, and associated responses, are summarized topically below.

Two commenters concurred with the preferred alternative selected in the EIS.

One commenter questioned the boundary of the LA-3 site relative to the expected deposition pattern for dredged materials on the seafloor. The boundaries of the disposal site were chosen based on historical usage and to ensure that the majority of dredged material falls within the site boundaries given the 1,000 ft (305 m) radius disposal target for the disposal barges. Instantaneous sediment accumulation rates in excess of 1 ft (30 cm) per disposal event were assumed to result in the loss of the existing infaunal community. However, for assessing impacts, the EIS conservatively assumed that the infaunal community would be lost if the deposition rate exceeded 1 ft (30 cm) over a one-year period (this is conservative because the infaunal community is expected to rapidly recover for instantaneous deposition rates of less than 30 cm [1 ft] per disposal event). For all modeled scenarios, the worst-case 1 ft (30 cm) annual deposition contour lies well within the proposed 3,000 ft (915 m) radius site boundary. While a certain quantity of material is expected to settle outside of the site boundary, it is impractical and undesirable to extend the site boundary beyond this distance in an attempt to encompass all of the dredge material that will settle on the ocean bottom. Extending the site boundaries to encompass all of the material expected to settle on the ocean bottom would not alter the conclusion of significance (or lack thereof) concerning adverse impacts on the benthic community determined in the EIS. The 3,000 ft (915 m) radius is considered appropriate for site management purposes.

Two commenters asked for clarification of projected disposal volumes at the LA-2 and LA-3 sites. For both management and environmental impact considerations, the dredged material volume capacities specified for LA-2 and LA-3 were based on conservative estimates of the worst-case maximum amount of dredged material requiring ocean disposal in any given year. These estimates account for all known and reasonably anticipated capital and maintenance dredging projects in the Los Angeles and Orange County regions. It is unlikely that all potential projects would occur simultaneously in any given year. Therefore, the environmental impact analysis considered both the potential worst-case conditions and a more reasonable annual average condition.

For each potential dredging project, the Zone of Siting Feasibility (ZSF) Study evaluated whether disposal at the LA-2 or LA-3 ODMDSs would be economically feasible. For the purposes of establishing the maximum analyzed annual dredged material quantities that could be placed at LA-2 or LA-3, it was assumed that the Los Angeles County projects identified in the ZSF Study (USACE 2003a) would utilize LA-2, and that the Orange County projects would utilize LA-3.

Accordingly, based on the projected dredging volumes from the ZSF study, as well as site management considerations, the LA-2 site would be designated for an annual maximum of 1,000,000 yd 3 (765,000 m 3 ) and the LA-3 site would be designated for an annual maximum of 2,500,000 yd 3 (1,911,000 m 3 ). These maximum volume designations would accommodate the projected average annual volume requirements as well as provide for substantial annual volume fluctuations. Thus, the proposed rule will amend use of the existing LA-2 site for a higher maximum annual quantity to manage disposal of dredged material generated primarily from the Los Angeles County region, and it would permanently designate the LA-3 ODMDS with an annual quantity adequate to manage disposal of dredged material generated locally from projects to preserve the wetland habitat within the Upper Newport Bay and/or to maintain navigation channels at Newport and Dana Point Harbors.

However, it is acknowledged that designation of the sites does not preclude material generated in Orange County from being disposed of at LA-2 and vice versa. The choice of which site to use for the disposal of dredged material for individual dredging projects will be based on both economic and environmental factors. Decisions to allow ocean disposal for individual dredging projects are made on a case-by-case basis through the Marine Protection, Research and Sanctuaries Act (MPRSA) Section 103 permitting process or its equivalent process for USACE's Civil Works projects and are subject to subsequent environmental review and documentation.

One commenter expressed support for the SMMP, but requested clarification on opportunities for public input to the SMMP. A SMMP has been developed that contains approaches for monitoring impacts to marine organisms, as well as verification of model predictions. Development of this SMMP was based on a review of other SMMPs prepared for similar ocean disposal sites.

The site monitoring reports described in the SMMP will be public documents that will be made available either through posting on the EPA website or direct mailing upon request. EPA will accept public comments regarding those reports, although there will not be a formal comment period. Additionally, the public will get an opportunity to comment on any SMMP implementation manual that is prepared by EPA subsequent to this action. No revisions to the SMMP as written are necessary to allow for this level of public input.

One commenter indicated that relocating LA-3 was inconsistent with EPA site selection criteria. Although the permanent LA-3 site lies outside of the boundaries of the interim LA-3 site, the permanent site has been disturbed by historical dredged material disposal events. During reviews performed by the U.S. Geological Survey in 1998, a substantial amount of dredged material was noted outside of the interim site boundaries, particularly to the north, northeast, and southeast of the site. This was primarily attributed to disposal short of the targeted disposal area and errors in disposal generally resulting from inaccurate navigation.

Locating the permanent site boundary at the proposed location (away from the interim site) would redirect future dredged material disposal to an area historically used for disposal (and thus already undisturbed). Additionally, due to the nature of the local topography, the permanent site would be more amenable to monitoring via precision bathymetry. Further, as described in the SMMP, enhanced vessel tracking and monitoring will ensure that future disposal activities occur accurately within the designated target area of the permanent site.

One commenter recommended extending the interim designation of LA-3. Congressional authorization for the interim site designation expired December 31, 2002. Requests for another extension would have to be made to Congress. In any event, the proposed action obviates the need for an extension. Thus, an extension of LA-3's interim site designation is not necessary.

One commenter noted potentials for impacts to Crystal Cove State Park and Area of Special Biological Significance (ASBS) if dredged materials placed at LA-3 were transported shoreward by currents. Dispersion and transport of dredged material disposed at LA-3 was modeled using measured current data collected in the disposal site and nearshore area. Results from the sediment fate model indicated that the dredged material disposed at LA-3 would settle within and immediately adjacent to the disposal site and no appreciable sediment transport toward the nearshore areas is anticipated, particularly given the depth of the LA-3 site. Water quality impacts during dredged material disposal operations at the LA-3 site will be temporary and localized and are not expected to extend to the shallower, nearshore area. Further, the location of the permanent LA-3 site relocates the site away from the Newport submarine canyon. Thus, any potential influences of currents within the canyon would be reduced at the permanent site.

Consistent with the Coastal Zone Management Act, EPA prepared a Coastal Zone Consistency Determination (CCD) document based on information presented in the site designation EIS. The CCD evaluated whether the proposed action—permanent designation of LA-3 and management of LA-2 at a higher annual disposal volume—would be consistent with the provisions of the Coastal Zone Management Act. The CCD was formally presented to the California Coastal Commission (Commission) at their public hearing June 9, 2005. The Commission staff report recommended that the Commission concur with EPA's CCD, which the Commission did by a unanimous vote. The proposed rule is consistent with the Coastal Zone Management Act.

During development of the site designation EIS, EPA consulted with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) pursuant to the provisions of the Endangered Species Act (ESA), regarding the potential for designation and use of the ocean disposal sites to jeopardize the continued existence of any federally listed species. This consultation process is fully documented in the site designation EIS. NMFS and FWS concluded that use of the disposal sites for disposal of dredged material meeting the criteria for ocean disposal would not jeopardize the continued existence of any federally listed species.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant”, and therefore subject to OMB review and other requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to lead to a rule that may:

(a) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;

(b) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(c) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(d) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This proposed Rule should have minimal impact on State, local or tribal governments or communities. Consequently, EPA has determined that this proposed Rule is not a “significant regulatory action” under the terms of Executive Order 12866.

The Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , is intended to minimize the reporting and record-keeping burden on the regulated community, as well as to minimize the cost of Federal information collection and dissemination. In general, the Act requires that information requests and record-keeping requirements affecting ten or more non-Federal respondents be approved by OMB. Since the proposed Rule would not establish or modify any information or record-keeping requirements, but only clarifies existing requirements, it is not subject to the provisions of the Paperwork Reduction Act.

The Regulatory Flexibility Act (RFA) provides that whenever an agency promulgates a final rule under 5 U.S.C. 553, the agency must prepare a regulatory flexibility analysis (RFA) unless the head of the agency certifies that the proposed Rule will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 604 and 605). The site designation and management actions would only have the effect of setting maximum annual disposal volume and providing a continuing disposal option for dredged material. Consequently, EPA's proposed action will not impose any additional economic burden on small entities. For this reason, the Regional Administrator certifies, pursuant to section 605(b) of the RFA, that the proposed Rule will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any year.

This proposed Rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. The proposed Rule would only provide a continuing disposal option for dredged material. Consequently, it imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, EPA has also determined that this Rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this proposed Rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This proposed Rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The proposed Rule would only have the effect of setting maximum annual disposal volumes and providing a continuing disposal option for dredged material. Thus, Executive Order 13132 does not apply to this proposed Rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed Rule does not have tribal implications, as specified in Executive Order 13175. The proposed Rule would only have the effect of setting maximum annual disposal volumes and providing a continuing disposal option for dredged material. Thus, Executive Order 13175 does not apply to this proposed Rule.

This Executive Order (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA. This proposed Rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This proposed Rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. The proposed Rule would only have the effect of setting maximum annual disposal volumes and providing a continuing disposal option for dredged material. Thus, EPA concluded that this proposed Rule is not likely to have any adverse energy effects.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed Rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

In consideration of the foregoing, EPA is amending part 228, chapter I of title 40 of the Code of Federal Regulations as follows:

This notice proposes to update the Federal pipeline safety regulations to all or parts of recent editions of the voluntary consensus technical standards that are currently incorporated by reference in the Federal pipeline safety regulations. It updates standards in 49 CFR part 192, “Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards,” 49 CFR part 193, “Liquefied Natural Gas Facilities: Federal Safety Standards,” and 49 CFR part 195, “Transportation of Hazardous Liquids by Pipeline.” This update enables pipeline operators to utilize current technology, materials, and practices. The incorporation of the most recent editions of standards improves clarity, consistency and accuracy, and reduces unnecessary burdens on the regulated community.

Previous updates of the regulations to incorporate revised standards were issued on May 24, 1996 (61 FR 26121), June 6, 1996 (61 FR 2877), February 17, 1998 (63 FR 7721), and June 14, 2004 (69 FR 32886). PHMSA intends to issue periodic updates to ensure that the pipeline safety regulations reflect current practice and to improve compliance by the pipeline industry with safety standards.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) directs Federal agencies to use voluntary consensus standards in lieu of government-written standards whenever possible. Voluntary consensus standards are standards developed or adopted by voluntary bodies that develop, establish, or coordinate technical standards using agreed-upon procedures.

PHMSA participates in more than 25 national voluntary consensus standards committees. PHMSA's policy is to adopt voluntary consensus standards when they are applicable to pipeline design, construction, maintenance, inspection, and repair. In recent years, PHMSA has adopted dozens of voluntary consensus standards into its gas pipeline, hazardous liquid pipeline, and liquefied natural gas (LNG) regulations.

PHMSA has reviewed the voluntary consensus standards proposed for incorporation in whole or in part in 49 CFR parts 192, 193, and 195. The organizations responsible for producing these standards often update or revise them to incorporate the most current technology.

Parts 192, 193, and 195 incorporate by reference all or parts of 60 standards and specifications developed and published by technical organizations, including the American Petroleum Institute, American Gas Association, American Society of Mechanical Engineers, American Society for Testing and Materials, Manufacturers Standardization Society of the Valve and Fittings Industry, National Fire Protection Association, Plastics Pipe Institute, and Pipeline Research Council International. The most recent editions of these documents represent a consensus on the best current practice and modern technology in the pipeline industry.

PHMSA proposes to adopt all or part of recent editions of 39 of the 60 standards referenced in the pipeline safety regulations.

The following new editions of currently referenced standards are proposed for incorporation by reference (ibr) in Parts 192, 193, and 195. These new editions refine, correct, and clarify existing material in the standard, and generally do not introduce new topics. The list is organized by the standards-developing organization responsible for the standard. Each entry contains the title and a short description, along with what sections of the pipeline safety regulations reference the standard. In the interest of clarity, the regulatory language at the end of this document lists all standards incorporated by reference, including those updated standards described below.

This new edition addresses principles and practices for purging pipelines of combustible gases. It provides new information for purging pipelines that was developed by the Gas Research Institute (GRI), now known at the Gas Technology Institute (GTI), and addresses improvements made in instruments for measurement of combustible gas mixtures. Chapters 1 through 4 cover the principles of gas purging. The remainder of the standard addresses the application of the principles to various situations.

This specification provides standards for pipe suitable for use in conveying gas, water, and oil in both the oil and natural gas industries. This specification covers seamless and welded steel line pipe. It includes plain-end, threaded-end, and belled-end pipe, as well as through-the-flowline (TFL) pipe and pipe with ends prepared for use with special couplings.

The recommendations in this standard apply to the transportation on railcars of API Specification 5L steel pipe. It addresses allowable load stresses for pipe with diameter to thickness (D/t) ratios of 50 or more.

This specification addresses technical requirements for most types of pipeline valves, and specifies standard valve types and categories. The document addresses requirements for materials, tests, marking, quality control, and shipping of valves.

This standard addresses the design and construction of large, field-assembled storage tanks for the storage of petroleum and petroleum products. It addresses low-pressure, carbon-steel above ground storage tanks, including flat bottom tanks. Standards are provided for materials, design, fabrication, inspection, testing, marking, and pressure control devices.

This publication focuses on the implementation and testing of computational pipeline monitoring (CPM) systems that use algorithms to detect anomalies in pipeline operations. CPM systems assist pipeline controllers in detecting and responding to leaks and other hydraulic anomalies.

This standard addresses the technical requirements for ensuring that dangerous gases are properly vented from atmospheric and low-pressure hazardous liquid storage tanks.

This standard sets minimum requirements for the design and construction of facilities to handle and store liquefied petroleum gas (LPG) at terminals, refineries, and tank farms. It addresses design of LPG vessels and tanks, siting requirements, construction and piping specifications, procedures for loading and unloading, and fire protection.

This standard gives requirements for dead, live, soil, flood, wind, snow, rain, ice, and earthquake loads on buildings and other structures. The wind load section has been updated to reflect current information on wind engineering.

This specification covers seamless and welded black and hot-dipped galvanized steel pipe in pipe sizes NPS 1/8 to 26, with nominal wall thickness as given in Table X2.2 and Table X2.3 of the standard.

This specification covers seamless carbon steel pipe for high-temperature service in pipe sizes 1/8 to 48, with nominal wall thickness as given in standard ASME B36.10M.

This specification covers nominal wall thickness for welded carbon and alloy steel pipe intended for use at low temperatures. Several grades of ferritic steel are included as listed in Table 1 of the standard.

This specification covers relatively thin-walled forgings for pressure vessel use. Three types of carbon steel and six types of alloy steel are included. Provision is made for integrally forging the ends of vessel bodies made from seamless pipe or tubing.

This specification covers straight seam, double-submerged-arc-welded steel pipe suitable for high-pressure service, 16 in. (406 mm) and larger in outside diameter, with wall thicknesses from 5/16 to 1 1/2 in. (7.9 to 38 mm). The pipe is intended for fabrication of fittings and accessories for compressor or pump-station piping.

This specification covers electric-fusion-welded steel pipe with filler metal added, fabricated from pressure vessel quality plate of several analyses and strength levels and suitable for high-pressure service at atmospheric and lower temperatures. The specification covers pipe 16 inches (406 mm) in outside diameter or larger and of 1/4 inch (6.4 mm) wall thickness or greater.

This specification covers electric-fusion-welded steel pipe, fabricated from pressure-vessel quality plate of any of several analyses and strength levels and suitable for high-pressure service at moderate temperatures. The specification covers pipe 16 inches (406 mm) in outside diameter or larger with wall thicknesses up to 3 inches (75 mm).

This specification covers electric-fusion-welded carbon and alloy steel pipe fabricated from pressure-vessel-quality plate of several analyses and strength levels and suitable for high-pressure service at high temperatures. The specification covers pipe 16 inches (405 mm) in outside diameter and larger with wall thicknesses up to 3 inches (75 mm).

This test method covers the determination of the tensile properties of unreinforced and reinforced plastics in the form of standard dumbbell-shaped test specimens when tested under defined conditions of pretreatment, temperature, humidity, and testing machine speed. This test method can be used for testing materials of any thickness up to 0.55 inch (14 mm).

The adoption of ASTM D2513-04a, the 2004 edition, will replace the current split reference to D2513-87 for pipe marking purposes only and to D2513-1999 for all other purposes. This specification covers requirements and test methods for material dimensions and tolerances, hydrostatic burst strength, chemical resistance, and impact resistance of plastic pipe, tubing, and fittings for use in fuel gas mains and services for direct burial and reliner applications. The annexes provide specific requirements and test methods for each of the materials currently approved. The pipe and fittings covered by this specification are intended for use in the distribution of natural gas. Requirements for the qualifying of polyethylene systems for use with liquefied petroleum gas are covered in Annex A1 of the standard.

This specification covers requirements and methods of test for materials, dimensions and tolerances, hydrostatic-burst strength, chemical resistance, and longitudinal tensile properties, for reinforced epoxy resin pipe and fittings for use in gas mains and services for direct burial and insertion applications. The pipe and fittings covered by this specification are intended for use in the distribution of natural gas, petroleum fuels (propane-air and propane-butane vapor mixtures), manufactured and mixed gases where resistance to gas permeation, toughness, resistance to corrosion, aging, and deterioration from water, gas, and gas additives are required. Methods of marking are also given. Design considerations are discussed in Appendix X1 of the standard.

This standard covers pressure-temperature ratings, materials, dimensions, tolerances, marking, testing, and methods of designating openings for pipe flanges and flanged fittings. Included are: Flanges with rating class designations 150, 300, 400, 600, 900, 1500, and 2500 in sizes NPS 1/2 through NPS 24. This standard is limited to flanges and flanged fittings made from cast or forged materials, and blind flanges and certain reducing flanges made from cast, forged, or plate materials.

This manual includes all pipelines that are covered by the ASME B31 pressure piping codes, i.e., ASME B31.4 (hazardous liquids); ASME B31.8 (gases); and ASME B31.11 (slurries). This manual is applicable only to determining the remaining strength of existing pipelines. New pipeline construction is covered under the applicable B31 codes.

This standard covers overall dimensions, tolerances, ratings, testing, and markings for wrought carbon and alloy steel factory-made butt welding fittings of NPS 1/2 through 48. It does not cover low-pressure, corrosion-resistant butt welding fittings.

This code prescribes requirements for the design, materials, construction, assembly, inspection, and testing of piping transporting liquids between producers' lease facilities, tank farms, natural gas processing plants, refineries, stations, ammonia plants, terminals (marine, rail and truck) and other delivery and receiving points.

This code covers the design, fabrication, installation, inspection, testing, and safety aspects of operation and maintenance of gas transmission and distribution systems, including gas pipelines, gas compressor stations, gas metering, regulation stations, gas mains, and service lines up to the outlet of the customers' meter set assembly.

This standard applies to on-shore gas pipeline systems constructed with ferrous materials. Pipeline system means all parts of physical facilities through which gas is transported, including pipe, valves, appurtenances attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders and fabricated assemblies. This standard is designed to provide the operator with the information necessary to develop and implement an effective integrity management program utilizing proven industry practices and processes.

This section of the Boiler and Pressure Vessel Code addresses the design, construction, and testing of prefabricated pressure-containing components of pipeline systems.

This division of the Boiler and Pressure Vessel Code, Section VIII contains rules for pressure vessel materials, design, fabrication, examination, inspection, testing, certification, and pressure relief. It includes requirements for pipe, fittings, and above ground breakout tanks that employ circumferential and longitudinal weld seams.

This division of the Boiler and Pressure Vessel Code, Section VIII, provides an alternative to the standards of Division 1 and are more restrictive in the choice of materials, but permit higher design stresses subject to more complete examination, testing, and inspection.

This section of the Boiler and Pressure Vessel Code establishes qualifications of welders and the procedures employed in welding. It includes qualification of procedures for each type of welding and qualification of welders for specific processes. A welder may be qualified by mechanical bending tests, or by radiography of test or production welds.

The Federal regulations on LNG dispersion protection (49 CFR 193.2059) specify DEGADIS as an acceptable means of determining flammable vapor-gas dispersion distances. The program user supplies information on local conditions ( e.g. , wind speed, temperature, humidity, surface roughness) and on the LNG spills (release rate, source radius). As described in the revised user manual, the DEGADIS program generates a description of the spatial and temporal development of a gas plume resulting from a release of LNG.

This specification cover factory-made, seamless and electric fusion-welded carbon and low-alloy steel, butt-welding fittings for use in high pressure gas and oil transmission pipelines and gas distribution systems, including pipelines, compressor stations, metering and regulating stations, and gas mains. It addresses dimensions, tolerances, ratings, testing, materials, chemical and tensile properties, heat treatment, notch toughness, manufacturing, and marking.

This standard was developed to address the continued use of steel pipe flanges in gas and hazardous liquid pipelines. Line pipe usually employs high-strength, cold worked, thin-wall carbon steel grade pipe, which necessitates special attention to the welding end of the flanges.

The standard provides criteria for cathodic protection to achieve control of external corrosion on buried or submerged metallic piping systems. It includes information on determining the need for corrosion control; piping system design; coatings; cathodic protection criteria and design; installation of cathodic protection systems; and control of interference currents.

This standard addresses safety rules for working with and storing flammable and combustible liquids.

The LPG, or propane, standard provides safety requirements for the design, construction, installation and operation of all LPG systems and storage facilities. This edition includes improved safety and security measure for bulk sites and industrial plants, including clarified requirements for safety valves and operations and maintenance requirements for pipeline and refrigerated storage facilities.

This standard applies to the design, construction, location, installation, operation, and maintenance of refrigerated and non-refrigerated liquefied petroleum gas plants. Coverage of liquefied petroleum gas systems at utility gas plants extends to the point where LPG or a mixture of LPG and air is introduced into the utility distribution system. It addresses refrigerated and non-refrigerated containers, piping, valves, and equipment, structures housing LP-Gas distribution facilities; vaporizers, heat exchangers, and gas-air mixers; relief devices; operations and maintenance; and fire protection, safety, and security.

This code covers all aspects of the installation of electrical facilities, including the electrical wiring in gas pipeline vaults and compressor stations.

This report presents the updated policies and procedures used by the Hydrostatic Stress Board of the Plastics Pipe Institute to develop recommendations of long-term strength ratings for thermoplastic piping materials and pipe. These recommendations are published in PPI TR-4, “PPI Listing of Hydrostatic Design Basis (HDB), Pressure Design Basis (PDB), Strength Design Basis (SDB), and Minimum Required Strength (MRS) Ratings for Thermoplastic Piping Materials or Pipe”, a regularly updated document.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not subject to review by the Office of Management and Budget (OMB). This proposed rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This notice does not propose any regulation that:

(1) Has substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government;

(2) imposes substantial direct compliance costs on state and local governments; or

(3) preempts state law.

Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084, Consultation and Coordination with Indian Tribal Governments. Because the proposed rule would not significantly or uniquely affect the Indian tribal governments, the funding and consultation requirements of Executive Order 13084 do not apply.

This rulemaking will not impose additional requirements on pipeline operators, including small entities that operate regulated pipelines. Rather, the proposed rule only incorporates the most recent editions of voluntary consensus standards that represent the current best practice in pipeline technology. Incorporating the most recent editions of these standards does not impose additional costs on small or large gas pipelines, hazardous liquid pipelines, or liquefied natural gas companies, and may reduce costs by contributing to even safer pipeline operations. Based on the facts available about the expected impact of this rulemaking, I certify, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605), that this rulemaking will not have a significant economic impact on a substantial number of small entities.

We have analyzed the proposed rule changes for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ). Because the adoption of the latest standards moves pipeline construction, operations, and maintenance toward current best practices, we have preliminarily determined that the proposed changes would not significantly affect the quality of the human environment.

This proposed rule does not impose any new or revised information collection requirements.

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the proposed rule.

In consideration of the foregoing, PHMSA proposes to amend 49 CFR Parts 192, 193, and 195 as follows:

We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation (69 FR 48570, August 10, 2004) and on our draft economic analysis of the proposed designation. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat, as provided by section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), including whether the benefits of exclusion outweigh the benefits of including such area as part of critical habitat;

(2) Specific information on the amount and distribution of California tiger salamander (CTS) habitat, and what habitat is essential to the conservation of this species and why;

(3) Land use designations and current or planned activities in the subject area and their possible impacts on proposed habitat;

(4) Information on how many of the State and local environmental protection measures referenced in the draft economic analysis were adopted largely as a result of the listing of the CTS, and how many were either already in place or enacted for other reasons;

(5) Whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation, and information on any costs that have been inadvertently overlooked;

(6) Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;

(7) Whether the draft economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation of critical habitat;

(8) The draft economic analysis indicated potentially disproportionate impacts to areas within Alameda, Contra Costa, and Monterey Counties. Based on this information, we are considering excluding portions of these areas from the final designation per our discretion under section 4(b)(2) of the Act. We are specifically seeking comment along with additional information concerning our final determination for these three areas along with any other areas with potentially disproportionate impacts.

(9) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, and in particular, any impacts on small entities or families; does our conclusion that the proposed designation of critical habitat will not result in a disproportionate effect to small businesses warrant further consideration, and is there other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities or families;

(10) Whether the draft economic analysis appropriately identifies all costs that could result from the designation; and

(11) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

(12) We are also considering excluding, and are requesting comments on the benefits of excluding or including in critical habitat the following areas from the final designation:

(a) The areas in east Contra Costa County covered by the Draft East Contra Costa Habitat Conservation Plan. This document will be out for public review soon and will be available on the Internet at http://sacramento.fws.gov (Central Valley Region Units 14, 15, 16 and portions of 17);

(b) The proposed critical habitat within the San Luis Refuge National Wildlife Complex (Central Valley Region Units 12 and 13) and the San Francisco Bay National Wildlife Complex (East Bay Region Unit 4); and

(c) The subunits within the Fort Hunter Liggett Army Installation (Central Coast Region Unit 5a and 5b).

An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

All previous comments and information submitted during the initial comment period for the August 10, 2004 proposed rule need not be resubmitted. Refer to the ADDRESSES section for information on how to submit written comments and information. Our final determination on the proposed critical habitat will take into consideration all comments and any additional information we receive.

Please submit electronic comments in an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: RIN 1018-AT68” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours, at the Sacramento Fish and Wildlife Office at the address listed under ADDRESSES.

Copies of the draft economic analysis are available on the Internet at: http://sacramento.fws.gov/ . You may obtain copies of the proposed rule from the above address, by calling 916/414-6600.

We published a proposed rule to designate critical habitat on August 10, 2004 (69 FR 48570). The proposed critical habitat totaling approximately 382,666 acres (ac) (154,860 ha (ha)) in 4 geographic regions in 47 units, is in the following 20 counties in central California: Alameda, Amador, Calaveras, Contra Costa, Fresno, Kern, Kings, Madera, Mariposa, Merced, Monterey, Sacramento, San Benito, San Joaquin, San Luis Obispo, Santa Clara, Solano, Stanislaus, Tulare, and Yolo. This proposed critical habitat does not include areas within Santa Barbara or Sonoma Counties. A final critical habitat designation for the California tiger salamander in Santa Barbara County was published on November 24, 2004 (69 FR 68568). We are also currently in the process of completing a proposed designation for the California tiger salamander in Sonoma County which will be published in the Federal Register at a future date. Per settlement agreement, we will submit for publication in the Federal Register a final critical habitat designation for the CTS in Sonoma County on or before December 1, 2005.

Critical habitat is defined in section 3 of the Act as the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic or any other relevant impact of specifying any particular area as critical habitat. Based on the August 10, 2004, proposed rule to designate critical habitat for the Central population of California tiger salamander, we have prepared a draft economic analysis of the proposed critical habitat designation.

The current draft economic analysis estimates the foreseeable economic impacts of the proposed critical habitat designation on government agencies and private businesses and individuals. The economic analysis identifies potential costs of approximately $367 million over a 20-year period or $32.8 million per year as a result of the designation of critical habitat, including those costs coextensive with listing. The analysis measures lost economic efficiency associated with residential and commercial development, public projects and activities, such as economic impacts on transportation projects, the energy industry, University of California, Merced, and public lands such as those managed by the Department of Defense, Bureau of Land Management, Fish and Wildlife Service, and Bureau of Indian Affairs.

The draft economic analysis considers the potential economic effects of actions relating to the conservation of the Central population of California tiger salamander including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the California tiger salamander in essential habitat areas. The analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures ( e.g. , lost economic opportunities associated with restrictions on land use). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this analysis looks retrospectively at costs that have been incurred since the date the species was listed as a threatened species and considers those costs that may occur in the 20 years following the designation of critical habitat.

As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

Costs related to conservation activities for the proposed California tiger salamander critical habitat pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $283 to 367 million from 2005 to 2025. Overall, the residential and commercial industry is calculated to experience the highest of estimated costs. Of the 20 counties that are part of this current proposal, the four most impacted counties are Alameda, Contra Costa, Monterey and Santa Clara. Annualized impacts of costs attributable to the designation of critical habitat are projected to be between approximately $32.8 million.

In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed the proposed rule.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.

According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if this proposed designation of critical habitat for the California tiger salamander would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities ( e.g. , residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.

If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our economic analysis of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the California tiger salamander and proposed designation of its critical habitat. We determined from our analysis that the small business entities that may be affected are firms in the new home construction sector. We estimated the number of affected small businesses, the number of houses built per small firm was calculated, and it appears that less than two small firms maybe be affected in Sacramento County, and one, or less than one, each in Contra Costa, Alameda, Monterey, Fresno, Santa Clara, and San Benito counties. These firms may be affected by activities associated with the conservation of the Central population of California tiger salamander, inclusive of activities associated with listing, recovery, and critical habitat. Critical habitat is not expected to result in significant small business impacts. Thus, in the development of our final rule, we will explore potential alternatives to minimize impacts to these affected small business entities. These alternatives may include the exclusion of all or portions of critical habitat units in these counties. As such, we expect that the final designation of critical habitat for the Central population of California tiger salamander will not result in a significant impact on small business entities.

Therefore, we believe that the designation for the Central population of California tiger salamander will not result in a disproportionate effect to these small business entities. However, we are seeking comment on potentially excluding areas from the final critical habitat designation if it is determined that there will be a substantial and significant impact to small real estate development businesses in particular counties.

We determined that the critical habitat designation is expected to have the largest impacts on the market for developable land. The proposed critical habitat designation for California tiger salamander occurs in a number of rapidly growing communities. Regulatory requirements to avoid onsite impacts and mitigate offsite affect the welfare of both producers and consumers. Two scenarios are considered. In the first scenario, avoidance requirements are assumed to reduce the stock of new housing. Given the importance of regulation of housing development even in the absence of critical habitat, this scenario is taken as the base case. In this scenario, critical habitat is expected to impose losses of over $367 million over the 20-year study period. An alternative scenario is constructed in which all avoidance requirements are accommodated through densification. In this case, welfare losses from critical habitat are $283 million over the 20-year study period.

These economic impacts of critical habitat designation vary widely among the 20 affected counties, and even within counties. The counties most impacted by the critical habitat designation include: Alameda ($131 million), Contra Costa ($91 million), Monterey ($67 million), Santa Clara ($23 million), and San Benito ($23 million). Further, economic impacts are unevenly distributed within counties. The analysis was conducted at the census tract level, resulting in a high degree of spatial precision.

Please refer to our draft economic analysis of this critical habitat designation for a more detailed discussion of potential economic impacts.

On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 because it raises novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) As discussed in the draft economic analysis of the proposed designation of critical habitat for the Central population of CTS, the impacts on non-profits and small governments are expected to be negligible and are not examined in this analysis. There is no record of consultations between the Service and any of these governments since the Central population of CTS was listed in 2004. It is likely that small governments involved with developments and infrastructure projects will be interested parties or involved with projects involving section 7 consultations for the Central population of CTS within their jurisdictional areas. Any costs associated with this activity are likely to represent a small portion of a city's budget. Consequently, we do not believe that the designation of critical habitat for the Central population of CTS will significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for Central population of CTS. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of critical habitat for the Central population of CTS does not pose significant takings implications.

The primary author of this notice is the staff of the Sacramento Fish and Wildlife Office.

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).

A draft Environmental Impact Statement is available on the Internet at the following address: http://www.fakr.noaa.gov/protectedresources/seals/fur/deis0804.pdf .

The subsistence harvest from the depleted stock of northern fur seals, Callorhinus ursinus, on the Pribilof Islands, Alaska, is governed by regulations found in 50 CFR part 216, subpart F. The purpose of these regulations, published under the authority of the Fur Seal Act (FSA), 16 U.S.C. 1151, et seq. , and the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361, et seq. , is to limit the take of fur seals to a level providing for the subsistence needs of the Pribilof residents, while restricting taking by sex, age, and season for herd management purposes. To further minimize negative effects on the Pribilof Islands' fur seal population, the harvest has been limited to a 47-day season (June 23 to August 8).

There are several factors and conditions that affect the subsistence harvest of northern fur seals. Beginning in 2000, the take ranges have been discussed with each tribal government as part of the co-management relationship and agreement. As the history of estimating the subsistence needs of the Pribilof communities has been one of practical and social difficulties, the process to meet the take range regulation has evolved into the long-term acceptance of the ranges first established in 1987. These levels provide a degree of flexibility the communities feel comfortable with regarding changes and unanticipated needs within the community. The variability of the harvest occurs for many reasons. Weather conditions and availability of animals vary year by year. Demand may change. The timing restriction on the hunt overlaps with fishing seasons, and many of the hunters are also fishermen. Thus, they may be unavailable to hunt in certain years. If the harvest were reduced, the subsistence needs of the local communities may not be adequately met in certain years. The economic and logistical difficulties associated with small, rural and remote Alaskan communities such as those of St. Paul and St. George Islands, create a situation where subsistence use is an important source of food and a major component of the traditional needs of the communities.

Pursuant to the regulations governing the taking of fur seals for subsistence purposes, NMFS must publish a summary of the fur seal harvest for the previous 3-year period and an estimate of the number of seals expected to be taken in the subsequent 3-year period to meet the subsistence needs of the Aleut residents of the Pribilof Islands.

The annual harvests were conducted in the established manner and employed the standard methods required under regulations at 50 CFR 216.72. NMFS personnel monitored the harvest and worked closely with the tribal governments of each island to further improve the efficiency of the annual harvest and full utilization of the animals taken.

The reported northern fur seal subsistence harvests for St. Paul from 2002 to 2004 were 648, 522, and 493 respectively, and the reported northern fur seal subsistence harvests for St. George from 2002 to 2004 were 203, 132, and 123, respectively. The number of northern fur seals harvested on St. Paul Island from 1986 to 2004 ranged from 493 to 1,710, and the number harvested on St. George Island from 1986 to 2004 ranged from 92 to 319 seals. The average number of seals harvested during the past 10 years on St. Paul and St. George Islands, respectively, has been 958 seals (range: 493 to 1,591) and 193 seals (range: 121 to 260), (Table 1).

The tribal governments of both islands stress the full utilization of edible parts of harvested animals and have implemented a program that promotes full utilization of inedible seal parts for traditional arts, crafts, and other uses permitted under regulations at 50 CFR 216.73. The result has been an expanded use of these materials by the Aleut residents and increased fulfillment of the non-wasteful harvest requirements.

From 2002 through 2004, NMFS and the tribal governments of both islands worked closely to improve the conduct of the subsistence harvest and to promote full utilization of all the products thereof. Through the co-management process, (cooperative agreements were signed with St. Paul in 2000 and with St. George in 2001), NMFS and tribal authorities have developed a cooperative and collaborative working relationship, which increases local participation and responsibility regarding subsistence uses of fur seals and other marine mammals on and around the Pribilofs.

In order to increase the fishing effort on, and yield from healthy stocks, Amendment 13 to the FMP created a structure that allows for development of programs to target healthy fish stocks using Category B DAS. Amendment 13 included four specific SAPs, only two of which were approved and implemented on May 1, 2004. The regulations implementing FW 40-A (69 FR 67780, November 19, 2004) also created opportunities to use Category B DAS, including the CA I Hook Gear Haddock SAP. However, due to insufficient controls on GB cod mortality, which could have led to undermining fishing mortality objectives necessary to end overfishing and rebuild the GB cod stock, the measures for non-Sector vessels proposed in FW 40-A were found to be inconsistent with National Standard 1 and section 303(a)(1)(A) of the Magnuson-Stevens Act, and were thus disapproved. Specifically, the portion of the program pertaining to non-Sector vessels proposed to: Allow participants to fish in the SAP area using either an A or B DAS; count cod catch against the SAP's incidental cod TAC only when fishing on a B DAS; allow participants to fish both inside and outside the SAP area on the same trip under different gear restrictions; and allow non-DAS groundfish vessels to participate in the SAP. In contrast, regulations pertaining to the Sector vessels were relatively straightforward in that all cod caught by Sector vessels count toward the Sector's allocation of GB cod, and the same gear restrictions apply both inside and outside of the SAP area on a single trip. The purpose of this action is to revise the CA I Hook Gear Haddock SAP rules to allow participation by non-Sector vessels. This special access program would help mitigate the economic and social impacts caused by the fishing effort reductions that resulted from implementation of Amendment 13.

FW 41 would provide access to the CA I Hook Gear Haddock SAP for all limited access NE multispecies DAS permit holders, including both Sector and non-Sector vessels. Working together, Sector and non-Sector vessel owners who plan to participate in the program have suggested measures to minimize the potential for a derby (race to catch limited quota) fishery. The Council, in FW 41, has specified that future discussions of measures to minimize the potential of a derby in the CA I Hook Gear Haddock SAP would not necessarily be based on these measures, nor would these proposed measures necessarily constitute a historical basis for future allocation decisions.

Non-Sector Vessels

FW 41 proposes to modify the CA I Hook Gear Haddock SAP by allowing access to this SAP when fishing under a B DAS (either Regular B or Reserve B) for vessels with a NE multispecies limited access DAS permit, provided the vessel fishes with demersal longline or tub trawl gear. In order to minimize the potential of a derby fishery, participation in the SAP for non-Sector vessels would be restricted to a participation period of November 16 - December 31 for the 2005 fishing year, unless otherwise notified by NMFS. The participation period would alternate each year between Sector and non-Sector participants such that in fishing year 2006 non-Sector vessels would fish during a participation period of October 1 - November 15. The currently approved haddock TAC of 1,000 mt for the SAP would be divided evenly into two quota periods such that the haddock TAC for each quota period would be 500 mt. The SAP would close to all participants when the Administrator, Northeast Region, NMFS (Regional Administrator) projects that the haddock TAC (landings and discards) has been caught. The Regional Administrator may also adjust the start of the second participation period if the 500-mt haddock quota for the first participation period is harvested prior to November 15. Additionally, the Regional Administrator may adjust the 500-mt quota for the second participation period to account for under- or over-harvest of the 500-mt haddock quota (landings and discards) that occurred in the first participation period. Vessels fishing on a trip in which they have declared into the Regular B DAS Pilot Program would be prohibited from fishing in this SAP on the same trip.

In order to ensure that any catch of GB cod taken while using a Category B DAS would not threaten mortality objectives of Amendment 13, non-Sector vessels in the CA I Hook Gear Haddock SAP would be allocated a portion of the GB cod incidental catch TAC. Under this proposed rule, the GB cod incidental catch TACs would be 50 percent, 34 percent, and 16 percent for the Regular B DAS Pilot Program, the Eastern U.S./Canada SAP, and the CA I Hook Gear Haddock SAP, respectively. Additionally, for the 2005 fishing year the Regional Administrator may estimate any uncaught GB cod incidental catch TAC from the first quarter of the Regular B DAS Pilot Program and add that amount to the second quarter GB cod incidental catch TAC for the Regular B DAS Pilot Program. This action is necessary as the effective date for FW 41, if approved, would occur after the start of the Eastern U.S./Canada Haddock SAP, and the first period for the Regular B DAS Pilot Program (i.e., May 1, 2005). This would leave the second period of the Regular B DAS Pilot Program to be reduced by 15.5 mt and allocated to the CA I Hook Gear Haddock SAP. This figure, 15.5 mt, is equivalent to 16 percent of the GB cod incidental catch TAC at the beginning of the 2005 fishing year (97 mt). This in-season adjustment would only be made for the GB cod incidental catch TAC in the 2005 fishing year.

In order to enable the NMFS Observer Program to administer the deployment of observers in the SAP, a vessel intending to participate in this SAP would be required to notify NMFS by September 1 of its intention to fish in the program that year. This provision was approved for Sector vessels under FW 40-A and would be extended to non-Sector vessels in FW 41. This information is intended to provide the NMFS Observer Program with an estimate of the total number of vessels that intend to participate in the SAP and to plan observer coverage accordingly. If a vessel does not notify the NMFS Observer Program of its intent to participate in the SAP by the required date, it would not be allowed to participate in the SAP during that fishing year. Vessels would be required to notify the NMFS Observer Program by telephone at least 72 hours prior to leaving on a trip to the SAP, and would be required to provide the following information: Vessel name; contact name for coordination of observer deployment; telephone number of contact; and date, time and port of departure. The Regional Administrator would retain the authority to close the CA I Hook Gear Haddock Access Area for the duration of the season if the level of observer coverage is insufficient to project whether continuation of the SAP would undermine the achievement of the objectives of the FMP or the CA I Hook Gear Haddock SAP.

Non-Sector vessels participating in the SAP would be required to use Category B (either Regular B or Reserve B) DAS. Similar to the Sector vessels, all non-Sector vessels participating in this SAP would be required to be equipped with an approved Vessel Monitoring System (VMS). Vessels would be required to declare into the CA I Hook Gear Haddock SAP via VMS and specify whether Regular B DAS or Reserve B DAS would be used, prior to leaving port on a trip into the SAP. All non-Sector vessels would be required to report their catches (landings and discards) of haddock and cod daily via VMS. Non-Sector vessels that have declared into the CA I Hook Gear Haddock SAP would be prohibited from fishing both inside and outside the SAP area on the same trip and would be exempt from the current limitation on the number of hooks fished inside the SAP area. Non-Sector vessels would be subject to a cod possession and landing limit of 1,000 lb (453.6 kg) per trip. Vessels would not be permitted to discard legal-sized cod prior to reaching the catch limit, and would be required to end their trip if the cod trip limit is achieved or exceeded. There is no flipping provision proposed for this SAP (i.e., vessels may not switch from using Category B to Category A DAS on a trip). For species other than cod, non-Sector vessels would be required to comply with the possession and trip limit restrictions currently specified in the regulations. When the Regional Administrator projects that either the cod incidental catch TAC, or the haddock TAC (landings and discards) has been caught for the CA I Hook Gear Haddock SAP, the SAP would close for the remainder of the fishing period.

There are two proposed changes to the current provisions for Sector vessels participating in the CA I Hook Gear Haddock SAP. Under this action, Sector vessels that have declared into the CA I Hook Gear Haddock SAP would be prohibited from fishing both inside and outside the SAP area on the same trip, and Sector vessels would be restricted to a participation period of October 1 - November 15 in the 2005 fishing year. For subsequent fishing years, starting in fishing year 2006, the participation period would alternate each year between Sector and non-Sector participants so that in fishing year 2006, for example, Sector vessels would fish during a participation period of November 16 - December 31. The purpose of the prohibition on fishing inside and outside of the SAP on the same fishing trip is to ensure proper accounting of where fish are caught and ensure the ability of the regulations to be enforced. The provision also would maintain equity between Sector and non-Sector vessels participating in the SAP. Restricting access to the SAP to a specific period of time within the season is meant to minimize the potential of a derby fishery between Sector and non-Sector vessels. The current haddock TAC of 1,000 mt for the SAP would be divided evenly into two quota periods such that the haddock TAC for each quota period would be 500 mt. This action also proposes to remove the requirement that Sector vessels shall be required to pay for observer coverage if the Regional Administrator determines that funding for observers is inadequate to provide sufficient coverage. This requirement would be removed because it was determined that no additional regulations were necessary to ensure adequate observer coverage for Sector vessels. As stated previously, the Regional Administrator may adjust the start of the second quota period if the 500-mt haddock quota for the first quota period is harvested prior to November 15. Additionally, the Regional Administrator may adjust the 500-mt quota for the second quota period to account for under- or over-harvest of the 500-mt haddock quota (landings and discards) that occurred in the first quota period. Other provisions for Sector vessels fishing in the SAP would remain unchanged.

Finally, current regulations pertaining to access to the Eastern U.S./Canada Haddock SAP Pilot Program and the Eastern U.S./Canada Management Area would be clarified. Regulations at § 648.85(a)(1) and (b)(8) allow fishing in the Eastern U.S./Canada Management Area, and allow fishing in the Eastern U.S./Canada Haddock SAP Area, respectively, and specify rules that pertain to each area. According to these regulations, during the time the SAP is open, eligible vessels may choose to fish in the SAP, and to fish in the Eastern U.S./Canada Area west of CA II. In contrast to these regulations, the regulations at § 648.14(a)(143) and (a)(148) could be broadly interpreted to prohibit fishing in any part of the SAP unless fishing under the SAP rules. The prohibitions were inadvertently written in a broad way that is inconsistent with § 648.85(a)(1) and (b)(8) and the intent of NE Multispecies Framework Adjustment 40-A. These regulations would be clarified through this proposed action.

At this time, NMFS has not determined that the framework adjustment (FW 41) that this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which describes the economic impacts that this proposed rule, if adopted, would have on small entities. A description of the reasons why this action is being considered, as well as the objectives of and legal basis for this proposed rule is found in the preamble to this document. There are no Federal rules that may duplicate, overlap, or conflict with the proposed rule. The proposed action would modify the existing specification of GB cod incidental catch TACs to the various programs that have such TACs, modify the management measures for the CA I Hook Gear Haddock SAP to allow participation of non-Sector vessels, and implement measures to minimize potential derby fishing behavior. Current regulations under the FMP allow the development of such measures, provided they are consistent with the FMP objectives.

The proposed alternative to modify the GB cod incidental TACs and provide non-Sector vessel access to the SAP was compared to the No Action alternative. The proposed alternative to minimize derby fishing behavior was compared with both the No Action alternative and an alternative that would limit vessels to starting only two trips into the SAP per week.

The No Action alternative would result in the continuation of the management measures implemented by FW 40-A. Only Sector vessels would be eligible to fish in the SAP, no incidental GB cod TAC would be allocated to the SAP, and there would be no measures to minimize derby fishing behavior.

The proposed action would implement changes with the potential to affect any vessel holding a NE multispecies limited access permit (with an allocation of DAS; approximately 1,000 vessels). It is very likely, however, that the proposed measures would impact substantially less than the total number of such permit holders, because the SAP requires participants to use only hook gear, there are relatively few vessels that fish with hook gear, and it is not likely that many vessel owners would switch from using another type of fishing gear to hook gear. Based on this, the EA estimates that there would be about 60 vessels in total (Sector and non-Sector) that would participate in this SAP.

The Small Business Administration (SBA) size standard for small commercial fishing entities is $ 3.5 million in gross receipts and would apply to NE multispecies limited access permit holders. Data analyzed for Amendment 13 indicated that the maximum gross receipts for any single commercial fishing vessel in the NE multispecies fishery for the period 1998 to 2001 was $ 1.3 million. For this reason, each vessel in this analysis is treated as a single entity for purposes of size determination and impact assessment. All commercial fishing entities would fall under the SBA size standard for small commercial fishing entities, and there would be no disproportionate impacts between small and large entities. For the purposes of Executive Order 12866, the proposed action would not be considered significant, because the annual effect on the economy would not meet the threshold criteria of $100 million and it would not have an adverse material affect on any sector of the economy, productivity, jobs, the environment, public health, or safety, or state, local, or tribal governments or communities.

The proposed action would reduce the allocation of GB cod to the Regular B DAS Pilot Program in order to establish a GB cod incidental catch TAC for the CA I Hook Gear Haddock SAP. This reallocation of incidental TAC could result in increased economic benefits if the SAP results in a higher yield at lower cost than the Regular B DAS Pilot Program. However, unless the same vessels are the beneficiaries of the reallocation, allowing participation by non-Sector vessels in this SAP would result in a transfer of benefits from one group of vessels to another. The magnitude of the impacts will depend upon the amount of GB cod incidental TAC that is harvested under the Regular B DAS Pilot Program and the timing of the implementation of the SAP measures. There are minimal data to determine the specific impacts of the reallocation on the Regular B DAS Pilot Program or the fishery as a whole. During the first quarter of the 2005 fishing year the Regular B DAS Pilot Program caught a substantial portion of the GB cod incidental catch TAC. This suggests that such a reallocation may limit the Regular B DAS Pilot Program, however, the level of incidental catch during the CA I Hook Gear Haddock SAP season may be different.