Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances, including the single phrase residential central air conditioners and heat pumps with rated cooling capacities less than 65,000 British thermal units per hour (Btu/h) that are the focus of this notice. 1 (42 U.S.C. 6291(1)-(2), (21) and 6292(a)(3))

Under EPCA, the program consists of four activities: (1) Testing; (2) labeling; and (3) Federal energy conservation standards, and also (4) certification, compliance, and enforcement. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted pursuant to EPCA and for representing the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures in any enforcement action to determine whether covered products comply with these energy conservation standards. (42 U.S.C. 6295(s)) Under 42 U.S.C. 6293, EPCA sets forth criteria and procedures for DOE's adoption and amendment of such test procedures. Specifically, EPCA provides that an amended test procedure shall produce results which measure the energy efficiency, energy use or estimated annual operating cost of a covered product over an average or representative period of use, and shall not be unduly burdensome to conduct (42 U.S.C. 6293(b)(3)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine the extent to which the proposed test procedure would change, if at all, the measured efficiency of a system which was tested under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2)) The amendments proposed in today's SNOPR will not alter the measured efficiency, as represented in the regulating metrics of seasonal energy efficiency ratio (SEER) and heating seasonal performance factor (HSPF) of residential central air conditioners and heat pumps. Thus, today's proposed test procedure changes can be adopted without amending the existing standards. (42 U.S.C. 6293(e)(2))

On December 19, 2007, the President signed the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110-140, which contains numerous amendments to EPCA. Section 310 of EISA 2007 established that the Department's test procedures for all covered products must account for standby mode and off-mode energy consumption. (42 U.S.C. 6295(gg)(2)(A)) Today's SNOPR includes proposals relevant to these statutory provisions.

DOE's existing test procedures for residential central air conditioners and heat pumps adopted pursuant to these provisions appear under Title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix M (“Uniform Test Method for Measuring the Energy Consumption of Central Air Conditioners and Heat Pumps”). These procedures establish the currently permitted means for determining energy efficiency and annual energy consumption of these products.

DOE's initial proposals for estimating off-mode energy consumption in the test procedure for residential central air conditioners and heat pumps were shared with the public in a notice of proposed rulemaking published in the Federal Register on June 2, 2010 (June 2010 NOPR; 75 FR 31224) and at a public meeting at DOE headquarters in Washington, DC on June 11, 2010. Subsequently, DOE published a supplemental notice of proposed rulemaking (SNOPR) on April 1, 2011 in response to comments received on the June 2010 NOPR, and due to the results of additional laboratory testing conducted by DOE. 76 FR 18105, 18127. DOE received additional comments in response to the April 2011 SNOPR. In today's SNOPR, DOE addresses only those comments not previously addressed in the April 2011 SNOPR that concern off-mode testing of central air conditioners and heat pumps. DOE will subsequently address the remainder of the unrelated comments in response to both the June 2010 NOPR and April 2011 SNOPR in the test procedure final rule.

In the June 2010 NOPR, DOE proposed new laboratory tests and calculation algorithms for determining the off-mode power and off-mode energy consumption of residential central air conditioners and heat pumps, which were subsequently modified in the April 2011 SNOPR. 75 FR 31238-39; 76 FR 18107-09. The off-mode rating reflects those extended times of the year during which a residential central air conditioner or heat pump sits idle. The energy consumed by these products during these extended times is not accounted for by the existing seasonal rating metrics of SEER and HSPF.

One of the extended off-mode intervals was designated the “shoulder season” in the June 2010 NOPR. 75 FR 31239. The shoulder season for central air conditioners is defined as the time between the cooling and heating seasons when the unit provides no cooling and when the unit is idle during the entire heating season. The shoulder season for residential heat pumps is defined as the time between the cooling and heating seasons when the unit provides neither heating nor cooling.

The off-mode testing and calculations proposed in the June 2010 NOPR would be used to determine the average power consumption of a residential central air conditioner or heat pump during the shoulder season (represented by the variable P1 ) and, for residential central air conditioners, the unit's average power consumption during the heating season (represented by the variable P2 ). 75 FR at 31238-39. The resulting average power values may then be multiplied by the number of hours assigned to the shoulder and heating seasons to obtain the corresponding off-mode energy values. In the June 2010 NOPR, DOE proposed an approach for assigning the number of hours to the shoulder and heating seasons, as specified in ASHRAE Standard 137-2009. Id. For any given location or for each of the six DOE generalized climate regions, 2 the sum of the hours in the cooling, heating, and shoulder seasons equals 8,760 hours. See Figures 2 and 3 of 10 CFR part 430, subpart B, appendix M. As proposed in the June 2010 NOPR, annual operating cost calculations would represent operation of a residential central air conditioner or heat pump over a complete 8,760-hour year, not just the cooling season (in the case of a residential central air conditioner) or just the cooling and heating seasons (in the case of a heat pump). Id. at 31238-39.

DOE included off-mode testing and calculations among the issues revisited in the April 2011 SNOPR as a result of comments received from interested parties in response to the originally proposed off-mode tests and calculations, and as a result of information gained from testing conducted by DOE after the close of the public comment period for the June 2010 NOPR. 76 FR at 18107-09. Most of the proposed revisions introduced in the April 2011 SNOPR applied to the laboratory testing of units with compressor crankcase heaters. Id. Rather than attempting to formulate a single generic test that would apply to all units with a crankcase heater, DOE proposed multiple product-specific tests. The tests were structured to differentiate between residential central air conditioners and heat pumps, between fixed-output and self-regulating crankcase heaters, between thermostatically controlled and continuously on heater designs, and between local and global thermostatic control options. Id. at 18109.

As explained in the April 2011 SNOPR, “local” control refers to cases in which the heater is regulated based on a measured or inferred temperature of the compressor sump. Global control refers to cases in which the heater's operation is regulated based on a measured or inferred temperature that is not influenced by the crankcase heater. Id. The most common example of global control is a heater that is powered or unpowered based on the temperature measured by an outdoor air thermostat. Id.

Most of the proposed revisions to the off-mode calculations set forth in the April 2011 SNOPR specified which laboratory test to conduct based on system characteristics ( e.g., presence of crankcase heater controls). For example, separate off-mode calculations were provided for fixed-output heaters and self-regulating heaters. Id. at 18117-25. Additionally, calculations were proposed to account for use of local control, global control or a combination of local and global control. Id. Other calculation changes were proposed to better balance test burden and test rigor. Id. at 18107-08. Specifically, a method to extrapolate test data in lieu of actual testing was proposed for certain crankcase heater controls which would take the longest to physically test. Id.

Finally, in light of the need for an overall off-mode rating for residential central air conditioners, DOE introduced an algorithm for weighting the shoulder season off-mode rating, P1, with the heating season off-mode rating, P2. Id. at 18111. When P1 and P2 are weighted based on the national average values for the lengths of the shoulder and heating seasons, the overall off-mode rating is specifically designated by the variable P W,OFF . Id. The amended off-mode energy conservation standards for central air conditioners are defined in terms of P W,OFF and are set forth in the recently published direct final rule (DFR) for amended energy conservation standards for these products. 76 FR 37408, 37411(June 27, 2011).

Stakeholders raised significant issues and suggested changes to the test procedure proposals set forth in the April 2011 SNOPR, as further described below. Based on these comments and additional laboratory testing conducted by DOE, DOE's position on these topics has evolved. Today's SNOPR shares DOE's current position on the test procedure for residential central air conditioners and heat pumps, and provides interested parties with an additional opportunity to comment on its proposed methodology.

Today's SNOPR revisits the test methods and calculations for off-mode power and energy consumption, which were originally proposed in the June 2010 NOPR and modified in the April 2011 SNOPR. DOE now proposes to revise the off-mode testing procedures and calculation algorithms set forth in the April 2011 SNOPR to shorten the duration and burden of the off-mode testing, while still adequately measuring the off-mode power consumption of the tested residential central air conditioner or heat pump. Specifically, DOE proposes that the applicable test and calculation combination will depend on whether the tested unit is equipped with a crankcase heater and whether or not the crankcase heater operation is controlled by the unit during the test. Furthermore, DOE proposes to alter the calculation for P WOFF that is used to determine the overall off-mode rating for residential central air conditioners and heat pumps.

DOE proposes to make the off-mode test procedure additions in today's SNOPR effective 180 days after publication of the test procedure final rule in the Federal Register . By doing so, DOE would not require manufacturers to publish the new rating metrics by this time, but rather, would require that manufacturers use the amended test procedure as of this date only if they wish to make representations of the off-mode energy consumption of their central air conditioners and heat pumps. In addition, DOE proposes to require that the compliance date for these test procedure amendments correspond to the January 1, 2015 compliance date for the amended energy conservation standards for residential central air conditioners and heat pumps. 76 FR 39245.

This section provides discussion of the revisions and additions to the test procedure that DOE proposes in this SNOPR, based in part on comments DOE received in response to the April 2011 SNOPR. Section 0 describes DOE's proposed changes to test methods and calculations for off-mode power and energy consumption. Additionally, DOE provides the specific proposed revisions to 10 CFR 430, subpart B, appendix M, “Uniform Test Method for Measuring the Energy Consumption of Central Air Conditioners and Heat Pumps” as part of this SNOPR.

The majority of comments received following publication of the April 2011 SNOPR addressed the revised off-mode testing requirements. In a joint comment, Northwest Energy Efficiency Alliance (NEEA) and Northwest Power Coordinating Council (NPCC) stated that the lack of test data precludes an interested party from evaluating whether the proposed off-mode test method reasonably captures off-mode energy use. (NEEA and NPCC, No. 26 at pp. 2-3)  3 In another joint comment, the Appliance Standards Awareness Project (ASAP), the American Council for an Energy-Efficient Economy (ACEEE), and the Natural Resources Defense Council (NRDC) encouraged DOE to capture crankcase heater energy consumption in the test procedure with minimal testing burden while providing a means to encourage innovative designs that minimize off-mode energy consumption. (ASAP, ACEEE, and NRDC, No. 27 at pp. 1-2) The California State Investor Owned Utilities (CAIOUs) supported DOE's proposal to account for different types of crankcase heaters and crankcase heater controls. (CAIOUs, No. 23 at p. 1)

Both the American Heating and Refrigeration Institute (AHRI) and Trane stated that the proposed off-mode test procedure is unnecessarily complex. (AHRI, No. 24 at p. 1; Trane, No. 21 at p. 1) AHRI further stated that it does not support DOE's proposed off-mode test procedure because the procedure is too expensive and will not achieve the desired result. (AHRI, No. 24 at p. 1) Trane submitted similar comments, noting that the off-mode proposal will significantly increase testing time, thus adding to the cumulative regulatory burden. (Trane, No. 21 at p. 1) In exploring an alternative to the off-mode test method proposed in the April 2011 SNOPR, AHRI questioned whether the same or similar results could be achieved with minimal testing and/or analysis. (AHRI, No. 24 at p. 1) AHRI went on to offer specific alternatives and modifications to DOE's proposed off-mode test method, including reducing the number of samples tested, using default values to reduce some of the test burden, and adding an alternative set of more component-based off-mode tests (see Section 0). (AHRI, No. 28 at pp. 2, 6-7, and 35-38)

DOE agrees with the joint comment from ASAP, ACEEE and NRDC, and notes that one of the key objectives considered by DOE in amending the test procedure for residential central air conditioners and heat pumps is obtaining a reasonable balance between test burden and off-mode ratings that sufficiently differentiate among products. In response to the comment by NEEA and NPCC regarding insufficient data, DOE conducted additional testing for this SNOPR, which is discussed in detail in section 0, and collected additional data from stakeholders. Based on consideration of comments by AHRI and Trane, as well as results of additional laboratory testing, DOE also concurs that the added complexity and burden resulting from proposed changes in the April 2011 SNOPR would outweigh the benefits of distinguishing among different types of off-mode systems to more specifically capture a unit's off-mode power consumption. Consequently, in today's notice, DOE is proposing additional revisions to the off-mode test procedure to reduce the burden and complexity of testing, while still achieving the intended purpose of accurately measuring off-mode power consumption. The methodology of this revised procedure is discussed in section 0.

To reduce the testing burden and complexity, as discussed above, AHRI recommended a component-based testing approach and questioned the amount of testing that should be required to determine off-mode ratings accurately for a product family. (AHRI, No. 28 at pp. 3-50) Specifically, AHRI recommended adding text to the Code of Federal Regulations that would allow off-mode ratings to be obtained in one of two ways: (1) By testing a minimum of two units from each basic model group of a given product family; or (2) by bench testing a minimum of 10 samples of each component that contributes to off-mode energy use ( e.g., each type of crankcase heater, each type of controller, etc.) and then using the data obtained to conduct off-mode calculations. With respect to the first option, AHRI pointed out the need to define “product family” and offered the following proposed definition: “any set of basic model groups that have the same (or less) power consumption devices, including but not limited to: control board, crankcase heater, timer(s), switches, etc.” (AHRI, No. 28 at p. 4) According to AHRI's recommendation, two or more samples would be tested using the full system, off-mode tests specified in the April 2011 SNOPR. DOE believes that the purpose of the AHRI proposal is to identify a single off-mode rating for all central air conditioners or heat pumps of the same product family.

The second AHRI recommendation of testing a minimum of 10 samples of each relevant component would need to be done separately from the complete system testing conducted for determining the SEER and HSPF of a particular unit. AHRI notes that this approach reduces the “overall testing burden by allowing non-psychometric room testing but yet increase[s] confidence in values by increasing sample size.” (AHRI, No. 28 at p. 4) According to AHRI, its proposed “short cut,” or component-based testing approach, “may be used for rating products only after the manufacturer verifies a single sample using the appropriate section 3.13 procedure [ i.e., the off-mode tests specified in the April 2011 SNOPR] and [that] the P1 and P2 values measured via section 3.13 and calculated per section 3.14 [ i.e., the AHRI component-based method] are within 10% of each other.” (AHRI, No. 28 at p. 35) DOE views this approach as a variation of its alternative rating method (ARM) or alternative energy determination method (AEDM)  4 approach used for rating untested split system combinations for SEER and HSPF.

In response to AHRI's proposals, DOE is not considering changes to the definition of product family or, by extension, basic model, at this time. DOE recently clarified its definition of a basic model in its March 2011 certification, compliance, and enforcement final rule. 76 FR 12422 (March 7, 2011) Nonetheless, DOE agrees with AHRI's contention that a manufacturer will need a sample of sufficient size, which is not less than two units, to determine the certified rating for the off-mode energy consumption of a given product. With respect to AHRI's second recommendation of using ARMs to calculate off-mode energy consumption, DOE has an open rulemaking to address many issues associated with alternate methods of determining the efficiency of central air conditioners and heat pumps. 5 DOE plans to address the applicability of ARMs to the off-mode consumption measurement in that rulemaking. While DOE agrees that both of AHRI's recommendations provide potential mechanisms for obtaining off-mode ratings for a manufacturer's complete product line without requiring excessive testing time and does not seek to limit the use of ARMs or AEDMs, DOE believes that its own revised procedure is not unduly burdensome and that there is benefit to conducting off-mode tests in conjunction with the tests for SEER and HSPF. Consequently, DOE is proposing an off-mode test procedure, which is detailed in section 0, and comprises whole system testing, not testing or simulation of individual components.

On July 22, 2010, DOE published in the Federal Register a final rule for the microwave oven test procedure rulemaking (July TP repeal final rule), in which it repealed the regulatory provisions for establishing the cooking efficiency test procedure for microwave ovens under the Energy Policy and Conservation Act (EPCA). 75 FR 42579. In the July TP repeal final rule, DOE determined that the existing microwave oven test procedure to measure the cooking efficiency did not produce representative and repeatable test results and was unaware of any test procedures that have been developed that address DOE's concerns with the microwave oven cooking efficiency test procedure. DOE was also unaware of any research or data on consumer usage indicating what a representative food load would be, or any data showing the repeatability of test results. 75 FR 42579, 42581.

On July 22, 2010, DOE also published in the Federal Register a notice of public meeting to initiate a separate rulemaking process to consider new provisions for measuring microwave oven energy efficiency in active (cooking) mode. 75 FR 42611. DOE held the public meeting on September 16, 2010 to discuss and receive comments on several issues related to active mode test procedures for microwave ovens to consider in developing a new test procedure. DOE received no data or comments at or after the September 16, 2010 public meeting suggesting potential methodologies for test procedures for microwave oven active mode.

In support of its test procedure rulemaking, DOE conducts in-depth technical analyses of publicly available test standards and other relevant information. DOE continually seeks data and public input to improve its testing methodologies to more accurately reflect consumer use and to produce repeatable results. In general, DOE is requesting comment and supporting data regarding representative and repeatable methods for measuring the energy use of combination microwave ovens. Additionally, DOE seeks comment and information on the specific topics below.

DOE's previous active mode test procedure incorporated portions of the International Electrotechnical Commission (IEC) Standard 705-1998 and Amendment 2-1993, “Methods for Measuring the Performance of Microwave Ovens for Households and Similar Purpose.” The test methods measured the amount of energy required to raise the temperature of 1 kilogram of water by 10 degrees Celsius (°C) under controlled conditions. The ratio of usable output power over input power described the energy factor (EF), a measure of the cooking efficiency. 1 In comments received in response to a separate test procedure notice of proposed rulemaking (NOPR) published in the Federal Register on October 17, 2008, which addressed provisions for measuring standby mode and off mode energy use for microwave ovens (73 FR 62134), interested parties commented that pure water has relatively low specific resistivity, and actual food items that might be cooked in a microwave oven would have more salts and thus absorb microwave energy more efficiently than pure water. Interested parties stated that, as a result, testing with a water load would likely result in lower efficiency measurements than would be expected from using actual food products.

DOE also notes that IEC is currently revising its test standard for microwave ovens, IEC Standard 60705, “Household microwave ovens—Methods for measuring performance,” but that this test procedure continues to use a water load for testing. DOE is also unaware of any industry or international test standards that address the active mode cooking function of combination microwave ovens ( i.e., microwave ovens that incorporate convection features or possibly other means of cooking) and what food loads would be appropriate for testing the combination cooking function.

DOE is therefore interested in stakeholder feedback on what food loads are most commonly cooked by consumers and should be used for measuring the energy efficiency of microwave oven cooking, as well as the methodology for testing such food loads. In particular, DOE is requesting inputs on the following:

• Consumer usage data on the characteristics of food loads cooked by consumers in both microwave-only and combination cooking modes. Please provide specific details on which food loads are cooked with the microwave-only cooking function and which are cooked with the combination cooking function;

• The percentage of cooking cycles consumers use the microwave-only and combination cooking modes;

• Specific details on the food loads, including, but not limited to, weights, composition, frequency of cooking, and initial and final temperatures, as well as the racks or plates used to hold the food load;

• Food loads used by manufacturers to evaluate both efficiency and cooking performance;

• Testing methodology for measuring the cooking efficiency using different food loads (Please provide specific details on suggested testing methodologies, including, but not limited to, the number and placement of temperature probes, required temperature increases, and any procedures for preparing the load prior to heating); and

• Appropriate metrics to use for measuring energy use or efficiency in both microwave-only ovens and combination microwave ovens.

As discussed previously, interested parties commented in response to the October 2008 test procedure NOPR that the previous DOE microwave oven test procedure did not produce repeatable results. DOE is not aware of any data on the repeatability of various food loads. DOE notes that consumer product review organizations evaluate performance of microwave ovens by testing loads such as: Potatoes, mashed potatoes, whole chicken, cake, and other real-world food loads. DOE also notes that one consumer product review organization in the UK uses a solidifying gel, TX-151, to simulate a food load (in this case lasagna). 2 DOE specifically requests comment on:

• Repeatability of various loads that may be used for measuring the energy efficiency of microwave oven active mode cooking. When providing data, please provide detailed description of the characteristics of the cooking load under test;

• Whether there are any artificial loads that accurately simulate real food loads and the repeatability of test results using those loads;

• Methodologies for improving the repeatability of testing using various food loads, for example, using multiple thermocouples to determine an average temperature;

• The number of identical tests that should be conducted for various food loads (with results averaged) in order to produce accurate and repeatable results; and

• Any testing burdens associated with testing various food loads.

EPCA requires that the energy consumption in standby mode and off mode be integrated into the energy descriptor (which would include active mode) for a covered product unless the current test procedures already fully accounts for such consumption. If integration is technically infeasible, DOE must prescribe a separate standby mode and off mode energy use test procedure, if the latter is technically feasible. (42 U.S.C. 6295(gg)(2)(A)) DOE conducted a separate test procedure rulemaking and published an interim final rule amending its test procedures for microwave ovens to provide for the measurement of standby mode and off mode power use by microwave ovens. 76 FR 12825 (Mar. 9, 2011). In the interim final rule, DOE determined that the absence of active mode provisions results in a de facto separate energy use descriptor for microwave oven standby mode and off mode energy use. If DOE adopts amendments to the microwave oven test procedure to include provisions for measuring active mode energy use, it will consider adopting a single metric that integrates active mode, standby mode, and off mode energy use.

DOE is therefore interested in stakeholder feedback on developing such an integrated energy use metric. In particular, DOE is requesting inputs on the following:

• Consumer usage data on the number of hours microwave ovens are operated in active mode, standby mode, and off mode; and

• What metric should be used to describe the integrated energy use ( i.e., annual energy use, EF, or cooking efficiency);

DOE invites all interested parties to submit in writing by November 23, 2011, comments and information on matters addressed in this notice and on other matters relevant to DOE's consideration of a revised test procedure for measuring the active mode energy consumption of residential microwaves (both microwave-only and combination microwave types).

After the close of the comment period, DOE will begin collecting data, conducting relevant analyses, and reviewing the public comments. These actions will be taken to aid in the development of a test procedure NOPR for residential microwaves.

DOE considers public participation to be a very important part of the process for developing test procedures. DOE actively encourages the participation of the public during the comment period in each stage of the rulemaking process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the rulemaking process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this rulemaking should contact Ms. Brenda Edwards at (202) 586-2945, or via e-mail at Brenda.Edwards@ee.doe.gov .

On September 14, 2011, DOE published a notice of public meeting and availability of the framework document in the Federal Register 76 FR 56678 (September 14, 2011) to make available and invite comments on the framework document for general service fluorescent lamps and incandescent reflector lamps energy conservation standards. The notice provided for the submission of comments by October 31, 2011, and comments were also accepted at a public meeting held on October 4, 2011. At this public meeting Lutron stated it had conferred with other stakeholders and they were in agreement that more time should be allowed to provide comments on the framework document. Lutron suggested that the comment period for the framework document be extended to coincide with the comment period for the notice of proposed rulemaking for general service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps test procedures ending November 28, 2011. DOE has determined that an extension of the public comment period is appropriate based on the foregoing reasons and is hereby extending the comment period. DOE will consider any comments received by November 28, 2011/midnight and deems any comments received between October 31, 2011/midnight and November 28, 2011/midnight to be timely submitted.

Under 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

Background: On September 7, 2011, DOE published its proposal to amend its regulation concerning unclassified assistance to foreign atomic energy activities (76 FR 55278). This regulation provides that persons subject to the jurisdiction of the United States who engage directly or indirectly in the production of special nuclear material outside the United States must be authorized to do so by the Secretary of Energy pursuant to section 57 b.(2) of the Atomic Energy Act of 1954, as amended. The proposed revisions update and clarify several provisions in the current regulation, and identify information that applicants are required to submit in support of applications for an authorization under this Part. The revisions are intended to reduce uncertainties for industry users concerning which foreign nuclear-related activities by U.S. persons are “generally authorized” under the regulation and which activities require a “specific authorization” from the Secretary.

Purpose of the Meeting: To provide an overview of proposed changes and to conduct Q&A session with industry with respect to the proposed rulemaking.

Tentative Agenda: The Webinar will be conducted on November 2, 2011, from 10 am to 11:30 am EST. All prospective registrants will be notified by the agency via e-mail with respect to Webinar logon information. Webinar materials will be transmitted to registrants via e-mail.

Public Participation: To participate in the Webinar, please register by sending an e-mail to NISPublications@battelle.org . Please include in the subject line of the e-mail “DOE Webinar November 2”. In the body of the e-mail, please provide the registrant's name, affiliation, e-mail address, mailing address, and telephone number. Please submit your e-mail registration by noon EST on November 1, 2011. Registration will open at 9 a.m. EST on Friday, October 28, 2011. Registration is limited to 125 registrants.

Please note that comments on the proposed rulemaking will not be accepted during the Webinar. Instead, the public has an opportunity to comment formally on the proposed rulemaking as provided in the Federal Register on September 7, 2011 (76 FR 55278). By this notice, DOE is extending by 30 days the deadline for comments, with the final deadline for DOE receiving comments now being December 7, 2011. Participation in the Webinar is not a prerequisite for submission of written comments.

Registrants are responsible for ensuring their systems are compatible with Webinar software.

To prevent loss trafficking, section 382 imposes a limitation (the section 382 limitation) on a loss corporation's ability to use net operating losses that arose prior to an ownership change. Section 382(b)(1). In addition, if a loss corporation has a net unrealized built-in loss (NUBIL) at the time of an ownership change, built-in losses will be subject to the section 382 limitation as if they were pre-change losses of the loss corporation if they are recognized during the five-year period following the ownership change (the recognition period). Section 382(h)(1)(B). If a corporation has a net unrealized built-in gain (NUBIG) at the time of its ownership change, recognized built-in gains will increase the section 382 limitation if they are recognized during the recognition period. Section 382(h)(1)(A). Rules for determining whether a loss corporation has a NUBIG or NUBIL are found in section 382(h)(3).

Sections 1.1502-90 through 1.1502-99 provide guidance for applying section 382 with respect to a consolidated loss group or loss subgroup. In this preamble, the term loss group refers to both loss groups and loss subgroups. See §§ 1.1502-91(c)(1) and 1.1502-91(d).

Section 1.1502-91(g) provides rules for determining whether a loss group has a NUBIG or NUBIL. Section 1.1502-91(g)(1) provides that the determination of whether a loss group has a consolidated NUBIG or NUBIL is based on the aggregate amount of the separately determined NUBIGs and NUBILs of each member included in the loss group. Under this rule, unrealized gain or loss with respect to the stock of a member of the loss group (an included subsidiary) is disregarded in determining the separately determined NUBIG or NUBIL.

The current regulations under § 1.1502-91(g) are premised upon the observation that unrecognized gain or loss on included subsidiary stock generally reflects the same economic gain or loss reflected in the subsidiary's assets and that the consolidated return regulations generally prevent the group from taking that duplicative gain or loss into account more than once. This is the case because, if the subsidiary first recognizes the duplicated gain or loss on its assets, § 1.1502-32 eliminates the duplicative gain or loss reflected in stock basis. Conversely, if a member first recognizes duplicated loss on the subsidiary stock, § 1.1502-36 eliminates the duplicative asset loss. Although the regulations do not specifically address the recognition of duplicated gain on subsidiary stock, taxpayers generally avoid duplicative gain recognition, for example, through actual and section 338 deemed asset sales and through stock elimination transactions, such as section 332 liquidations. Because duplicative gain and loss is expected to be taken into account only once, the determination of NUBIG and NUBIL would be distorted if it included such amounts more than once.

To illustrate, assume P, the common parent of a consolidated group, contributes $100 to S in exchange for S's sole share of stock. S uses the $100 to purchase a truck. The value of the truck then declines to $70. At this point, the stock has a basis of $100 and a value of $70, reflecting a $30 loss. In addition, the truck has a basis of $100 and value of $70, also reflecting a $30 loss. Thus, it would appear the group has $60 of loss available. However, if S sells the truck and the group absorbs the $30 loss, P will reduce its basis in the S stock by $30 under § 1.1502-32, and the duplicative stock loss will be eliminated. On the other hand, if P sells its S share before the loss on the truck is recognized and absorbed, the duplicated loss (on either the truck or the stock, as P chooses) will be eliminated by § 1.1502-36. As a result, the group takes into account a single $30 economic loss, and the inclusion of both the unrecognized stock loss and the unrecognized asset loss in the NUBIL determination would overstate the amount of loss actually available to the group.

However, if an unrecognized gain or loss on subsidiary stock exceeds the included subsidiary's gain or loss on its assets, disregarding this unduplicated gain or loss on the stock understates the amount that the group may take into account.

To illustrate, assume the same facts as in the previous example except that P originally purchased the S stock for $150 (S's basis in the truck is still $100). In this case, there is $80 of loss available to the group, the $30 loss that is duplicated (reflected in the bases of both the stock and the truck), as well as the $50 unduplicated stock loss. Disregarding P's loss in its S stock causes the group's NUBIL to be understated by $50. These proposed regulations are intended to prevent such understatement.

The current rule is administratively less burdensome to taxpayers and the government than a rule that would require taxpayers to identify and take into account all unduplicated gain and loss on stock of included subsidiaries when determining NUBIG and NUBIL. Nevertheless, the IRS and the Treasury Department believe that the purpose of section 382(h) would be better served by a rule that does not wholly disregard such gain and loss. A rule that takes into account unduplicated gain or loss on stock would avoid both the understating of loss available to the group (when there is unduplicated stock loss) and the overstating of loss trafficking potential (when there is unduplicated stock gain).

The IRS and the Treasury Department are concerned, however, that requiring all consolidated NUBIG and NUBIL determinations to include all unduplicated stock gains and losses would significantly increase the administrative burden on both taxpayers and the government.

Accordingly, the IRS and the Treasury Department propose to modify the current regulations to take into account the unduplicated gain or loss on stock of included subsidiaries, but only to the extent that such gain or loss is taken into account by the group during the recognition period. This will generally be the case only if, within the recognition period, such stock is sold to a nonmember or becomes worthless, or a member takes an intercompany item into account with respect to such stock.

More specifically, the proposed regulations would revise § 1.1502-91(g) by adding a rule that would apply when any member of the consolidated group directly or indirectly (for example, through a partnership) takes any amount of gain or loss into account with respect to a share of stock of an included subsidiary (S), whether or not such amount is absorbed. When the rule applies, the loss group would be required to redetermine NUBIG or NUBIL to include any unduplicated built-in gain or loss with respect to the share. As used in these proposed regulations, the term unduplicated built-in stock gain or loss refers to the portion of the built-in stock gain or loss that was not originally reflected in the loss group's NUBIG or NUBIL as unrealized gain or loss on the assets of a lower-tier included subsidiary. The proposed regulations identify unduplicated built-in stock gain or loss by treating the separate NUBIG or NUBIL of each included subsidiary that is lower-tier to S as having been taken into account and absorbed immediately before the change date. These amounts are then deemed to tier-up to tentatively adjust the basis in the S shares under the principles of § 1.1502-32. The difference between the tentatively adjusted change-date basis in a share of S stock and the fair market value of the share (as of the change date) is the unduplicated gain or loss in the S share. However, if, immediately before the change date, a member of the loss group has a deferred gain or loss on S stock and that gain or loss is taken into account during the recognition period, the unduplicated portion of such gain or loss is determined as of the date of the transaction in which the deferred gain or loss was recognized, notwithstanding that such date would be prior to the change date.

The loss group then redetermines its NUBIG or NUBIL by including its unduplicated gain or loss on the S share (or shares) with respect to which an amount is taken into account. Under the proposed regulations, the redetermined NUBIG or NUBIL is given effect only immediately before the gain or loss on the stock is taken into account. It has no effect on the treatment of built-in gain or loss that is recognized and taken into account prior to the time that built-in stock gain or loss is taken into account. Thus, for example, the fact that a NUBIL group was redetermined to be a NUBIG group, or that a NUBIL that exceeded the 15 percent threshold amount in section 382(h)(3)(B) no longer exceeds such amount, has no effect on the tax treatment of amounts taken into account prior to the redetermination of NUBIG or NUBIL.

The proposed regulations also reorganize § 1.1502-91(g) and revise § 1.1502-91(h)(2) and (h)(4) without substantive change.

These proposed regulations will apply to amounts taken into account with respect to a share of stock of an included subsidiary on or after the date that final regulations are published in the Federal Register , but only with respect to ownership changes occurring on or after October 24, 2011.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13565. Therefore, a regulatory assessment is not required. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations would not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these proposed regulations would primarily affect members of consolidated groups which tend to be large corporations. Accordingly, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by any person that timely submits written or electronic 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 Grid Glyer of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and the Treasury Department participated in its development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Proposed prices are or will be available under Docket Number R2012-3 on the Postal Regulatory Commission's Web site at http://www.prc.gov .

This proposed rule includes: Price changes for First-Class Mail International® and extra services.

This proposed rule would increase prices for single-piece First-Class Mail International letters by approximately 6.6 percent, while the price for postcards is proposed to increase by approximately 7 percent.

The Postal Service proposes to increase prices for market dominant extra services by approximately 2.2 percent, for the following:

• Certificate of Mailing

• Registered Mail TM

• Return Receipt

• Restricted Delivery

• Customs Clearance and Delivery Fee

• International Reply Coupons

• International Business Reply Service

The prices and fees proposed in this notice, if adopted, would become effective concurrent with any domestic prices adopted as a result of the current proceedings before the Postal Regulatory Commission (Docket No. R2012-3). All regulatory changes necessary to implement this proposal are provided below.

Although exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the following proposed revisions to the Mailing Standards of the United States Postal Service, International Mail Manual (IMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 20.1.

Accordingly, 39 CFR part 20 is proposed to be amended as follows:

Proposed prices will be available under Docket Number(s) R2012-3 on the Postal Regulatory Commission's Web site at http://www.prc.gov.

The Postal Service's proposed rule includes: Several mail classification changes, modifications to mailpiece characteristics, and changes in classification terminology.

The pricing structure for presorted and automation First-Class Mail® letters is proposed to change so that the minimum postage charge would be for a 2-ounce letter instead of the current 1-ounce minimum postage charge.

We also remove standards for Reply Rides Free, because the program ends on December 31, 2011.

The Postal Service proposes to modify the process of submitting mailpieces to the Pricing and Classification Service Center (PCSC) for testing and to delete the provision that pieces with attached release cards be sent to Engineering.

The USPS proposes to clarify that overflow Standard Mail® nonmachinable letters that mailers place into existing trays at another level would require matching documentation.

The USPS proposes to clarify 301.3.0 to add that automation flats must meet the standards for all flats in 301.1.0 as well as the standards in 301.3.0.

Currently, Periodicals flats are allowed on mixed area distribution center (MADC) pallets only when the flats are sacked. This proposed rule would allow bundles of Periodicals flats to be placed directly on MADC pallets and would assign a specific price for MADC pallets as well.

We propose to revise a price categorization under nonmachinable flats to insert the correct categorization of nonmachinable flats-nonbarcoded.

The Postal Service proposes to add a new term to identify detached address labels (DALs) with advertising. Inclusion of advertising turns DALs into dual purpose pieces—optional addressing vehicles and marketing vehicles. A DAL with advertising on either side would be a type of DAL named as a detached marketing label (DML). Both DALs and DMLs could be used with saturation flats or with Standard Mail Marketing parcels.

To align the standards for machinable parcels with current mail processing equipment capability, the Postal Service proposes to change the dimensional criteria for all machinable parcels from the current 34 inches x 17 inches x 17 inches to 27 inches x 17 inches x 17 inches. We would additionally change the maximum weight of a machinable parcel from 35 pounds to 25 pounds for all parcels except those mailed as Parcel Select® or Parcel Return Service. We also propose to modify the processes by which parcels that do not fully meet the machinability standards are evaluated for machinability. In addition, the Postal Service proposes to clarify that parcels that meet the lightweight machinable parcel standards are definitively categorized as machinable parcels.

Standard Mail regular parcels would be separated into two groups, Marketing parcels and parcels that will become Parcel Select Lightweight TM parcels. Nonprofit Standard Mail parcels would have separate standards for Nonprofit Marketing parcels and other Nonprofit parcels.

Marketing parcels are defined as containing information and/or product samples whose purposes are to encourage recipients to purchase a product or service, make a contribution, support a cause, form a belief or opinion, take an action, or provide information to recipients. These parcels would be required to bear an alternative addressing format (occupant or exceptional addressing, or simplified addressing when allowed for saturation mail), and would be presented for mailing in carrier route (basic, high-density, or saturation sortation) or presort separations. All Marketing parcels would have a maximum size of 12 inches by 9 inches by 2 inches thick. When DALs are used with Marketing parcels, the weight of the DALs is added to the parcels in determining postage as is currently the case, but there would be no separate charge for the DALs.

In 2007, the USPS created a temporary NFM price category for Standard Mail items that could not meet revised automation flats standards. In the revised proposed rule Federal Register published on February 6, 2009 (74 FR 6250-6257), the Postal Service announced our intention to discontinue the NFM category in May 2010. In the March 25, 2010 Postal Bulletin (No. 22281), we announced that the NFM price category would be extended. We now propose to end the NFM category as of January 2012. Pieces that would have been mailed as NFMs should qualify as either Standard Mail Marketing parcels or Parcel Select Lightweight parcels.

The Postal Service proposes to eliminate the provision to provide free local forwarding for Package Services pieces.

The USPS also proposes to discontinue the 3-cent barcode discount for all BPM, Media Mail®, and Library Mail parcels.

The Postal Service proposes to permit the use of a hard copy PS Form 3811, Domestic Return Receipt, with Adult Signature service when used with Express Mail® or Priority Mail®, including shipments made under the Prevent All Tobacco Cigarettes Trafficking (PACT) Act. A return receipt fee would be charged in addition to regular postage and the Adult Signature fee.

Customers eligible to mail cigarettes and smokeless tobacco under the business/regulatory purposes and consumer testing exceptions of the PACT Act are currently limited to shipping via Express Mail with Hold for Pickup service. This proposed rule will offer additional options: Express Mail with Adult Signature or Priority Mail with Adult Signature.

The Postal Service proposes to discontinue Confirm service as a paid subscription service and to replace it with “IMb TM Tracing,” which will provide scan data similar to that provided through Confirm service, but with no paid subscription service required.

The Postal Service proposes to revise certain requirements for mailers who present full-service (Intelligent Mail®) automation mailings. When mailers present only full-service automation mailings of First-Class Mail or Standard Mail letters and flats or BPM flats with 90 percent or more pieces qualifying for full-service automation prices, the Postal Service proposes to waive payment of the annual mailing fees for mailings presented under specific permits. As an additional allowance, when mailers present only qualifying full-service automation mailings with permit imprint indicia, those mailings will be able to be presented at any PostalOne!  ® acceptance office without payment of an additional permit imprint application fee or payment of an annual mailing fee at the other office(s).

The Postal Service proposes to add a new 3-month prepaid payment option, only available via recurring automatic payments, for Post Office Box service.

Currently, the Postal Service charges a standard fee for most Stamp Fulfillment Services orders; however Stamp Fulfillment Services shipping fees are not identified in the DMM nor listed in Notice 123- Price List. However, the fees are subject to regulation by the PRC.

The USPS proposes to add new DMM language to explain that there are fees associated with Stamp Fulfillment Services and to refer customers to Notice 123 for the prices. A single standard fee is charged for orders up to $50, and a higher fee for larger orders.

Currently, the USPS does not offer postcard stationery sheets that easily fit on standard computer printers. We propose to offer four perforated postcards on an 8 1/2 inches x 11 inches sheet that would allow customers to feed them readily into computer printers. Once separated, each card will be 4 1/4 inches x 5 1/2 inches.

Additionally, the USPS does not currently offer personalized stamped postcards. This proposed rule will allow customers to purchase stamped postcards with pre-printed return addresses.

Although we are exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. of 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comments on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR Part 111 is proposed to be amended as follows:

Outline. The information in this ANPRM is organized as follows:

Please provide data and explanatory information in a format that is thorough and complete enough for use by the EPA to justify any modifications to the proposed approach. Do not submit CBI to the EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

The coastal migratory pelagic (CMP) fishery in the Gulf of Mexico (Gulf) and the Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The 2006 revisions to the Magnuson-Stevens Act require that by 2011, for fisheries determined by the Secretary of Commerce (Secretary) to not be subject to overfishing, ACLs and AMs must be established at a level that prevents overfishing and helps to achieve OY. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

Currently two migratory groups of king mackerel and Spanish mackerel are established, Gulf migratory group and Atlantic migratory group. The Gulf Council determines management measures for the Gulf migratory groups and the South Atlantic Council determines management measures for the Atlantic migratory groups.

This rule would remove four species from the FMP; modify the framework procedures; establish two migratory groups for cobia; establish ACLs, ACTs, and AMs for each migratory group of king mackerel, Spanish mackerel, and cobia. In addition, Amendment 18 would set allocations for Atlantic cobia and establish control rules for king mackerel, Spanish mackerel, and cobia.

Species currently in the FMP include king mackerel, Spanish mackerel, cobia, cero, little tunny, dolphin, and bluefish (Gulf only). Dolphin in the Atlantic are managed under a different FMP, and bluefish in the Atlantic are managed by the Mid-Atlantic Council. At present, only king mackerel, Spanish mackerel, and cobia have associated regulatory text; the other species are in the FMP for data collection purposes only.

This rule would remove cero, little tunny, dolphin, and bluefish from the FMP. The Councils and NMFS have determined that these species are not in need of Federal management at this time. Although these species are targeted in some areas, landings are relatively low. In addition, the Councils have never managed cero, little tunny, dolphin, or bluefish under the FMP. The species were originally included in the FMP “for data collection purposes,” but data collection on any species can be required of fishermen and dealers that hold Federal permits, regardless of the presence of that species in an FMP. At this time, the Southeast Fisheries Science Center has no plans to remove any species from their data collection programs. If landings or effort change for any of these species and the Councils determine management at the Federal level is needed, these species could be added back into the FMP at a later date.

Although there is mixing of cobia from the Gulf and the Atlantic, the preponderance of scientific data indicate that there are at least two separate migratory groups, if not two separate stocks in the Gulf and Atlantic. These two groups have separate seasonal migrations and distinct life history parameters. The Councils have determined they should manage these groups separately within their individual areas of jurisdiction. This rule would establish two migratory groups for cobia, a Gulf migratory group and an Atlantic migratory group. The boundary would be the line of demarcation between the Gulf EEZ and the South Atlantic EEZ. ACLs and AMs would be established separately for each group by the responsible Council. However, this rule would not change the current possession limit of two cobia per person per day for either commercial or recreational fishermen.

In 2006, the Magnuson-Stevens Act was re-authorized and included a number of changes to improve the conservation of managed fishery resources. Included in these changes are requirements that fishery management councils establish both a mechanism for specifying ACLs at a level such that overfishing does not occur in a fishery and AMs to mitigate any overages that may occur. Guidance also requires fishery management councils to establish a control rule to determine allowable biological catch (ABC).

The Councils accepted ABC control rules for Gulf migratory groups of king mackerel, Spanish mackerel, and cobia, and for the Atlantic migratory group of cobia, based on the control rule recommended by the Gulf Council's Scientific and Statistical Committee (SSC). They accepted ABC control rules for Atlantic migratory group king mackerel and Spanish mackerel based on the control rule recommended by the South Atlantic Council's SSC. For all species, this rule proposes ACLs equal to the ABC. For purposes of tracking the ACL, for king and Spanish mackerel, landings will be evaluated based on the commercial fishing year. Recreational landings for all Atlantic species will be evaluated based on a moving multi-year average of landings, as described in the FMP.

For Gulf migratory group king mackerel this rule proposes separate ACLs and AMs for the commercial and recreational sectors based on sector allocations.

The commercial sector would close by zone, subzone, or gear type when the commercial quota for the applicable zone, subzone, or gear type is reached or is projected to be reached. In addition, current trip limit adjustments would remain in place. When the commercial sector closes, harvest and possession of king mackerel for the applicable zone, subzone, or gear type would be prohibited for persons aboard a vessel for which a commercial permit for king mackerel has been issued. If that vessel also has a valid charter vessel/headboat permit on board for CMP species and is operating as a charter vessel or headboat, harvest and possession of king mackerel would be limited to the applicable bag limit. Also, sale and purchase of king mackerel from the closed zone, subzone, or gear type would be prohibited, including king mackerel taken under the bag or possession limits.

For the recreational sector, the Regional Administrator would have the authority to revert the bag and possession limit to zero if the recreational allocation (recreational ACL) is reached or projected to be reached. This bag and possession limit would also apply on board a vessel for which a valid charter vessel/headboat permit has been issued, without regard to where such species were harvested, i.e. in state or Federal waters.

For Atlantic migratory group king mackerel, this rule proposes separate ACLs for the commercial and recreational sectors based on sector allocations. This rule also proposes a stock ACL and an ACT for the recreational sector.

The commercial sector would close when the commercial ACL is reached or projected to be reached. When the commercial sector closes, harvest and possession of king mackerel would be prohibited for persons aboard a vessel for which a commercial permit for king mackerel has been issued. If that vessel also has a valid charter vessel/headboat permit on board for CMP species and is operating as a charter vessel or headboat, harvest and possession of king mackerel would be limited to the applicable bag limit. Also, sale and purchase of king mackerel would be prohibited, including king mackerel taken under the bag or possession limits, without regard to where such species were harvested, i.e. in state or Federal waters.

For the recreational sector, if the stock ACL is exceeded in any year, the bag limit would be reduced the next fishing year by the amount necessary to ensure recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL in the following fishing year.

A payback would be assessed if Atlantic migratory group king mackerel are determined to be overfished and the stock ACL is exceeded. The payback would include a reduction in the sector ACL for the following year, by the amount of the overage by that sector in the prior fishing year. Atlantic migratory group king mackerel are not considered overfished at this time.

For Gulf migratory group Spanish mackerel, this rule proposes stock ACLs and AMs. Both the commercial and recreational sectors would close when the stock ACL is reached or projected to be reached. Harvest, possession, sale, and purchase of Spanish mackerel would be prohibited, without regard to where such species were harvested, i.e. in state or Federal waters.

For Atlantic migratory group Spanish mackerel, this rule proposes separate ACLs for the commercial and recreational sectors based on sector allocations. This rule also proposes an ACT for the recreational sector.

The commercial sector would close when the commercial quota is reached or projected to be reached. In addition, current trip limit adjustments would remain in place. When the commercial sector closes, harvest and possession of Spanish mackerel would be prohibited for persons aboard a vessel for which a commercial permit for Spanish mackerel has been issued. If that vessel also has a valid charter vessel/headboat permit on board for CMP species and is operating as a charter vessel or headboat, harvest and possession of Spanish mackerel would be limited to the applicable bag limit. Also, sale and purchase of Spanish mackerel would be prohibited, including Spanish mackerel taken under the bag or possession limits, without regard to where such species were harvested, i.e. in state or Federal waters.

For the recreational sector, if the stock ACL is exceeded in any year, the bag limit would be reduced the next fishing year by the amount necessary to ensure recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL in the following fishing year.

A payback would be assessed if the Atlantic migratory group Spanish mackerel are determined to be overfished and the stock ACL is exceeded. The payback would include a reduction in the sector ACL, for the following year by the amount of the overage by that sector in the prior fishing year. Atlantic migratory group Spanish mackerel are not considered overfished at this time.

For Gulf migratory group cobia, this rule proposes stock ACLs and AMs. A stock ACT is proposed that is 90 percent of the ACL. Both the commercial and recreational sectors would close when the stock ACT is reached or projected to be reached. Harvest, possession, sale, and purchase of cobia would be prohibited, without regard to where such species were harvested, i.e. in state or Federal waters.

For Atlantic migratory group cobia, this rule proposes separate ACLs for the commercial and recreational sectors based on sector allocations. Because sector allocations do not currently exist for cobia, Amendment 18 proposes an allocation of 8 percent of the ACL for the commercial sector and 92 percent of the ACL for the recreational sector, based on landings. This rule also proposes an ACT for the recreational sector.

The commercial sector would close when the commercial ACL is reached or projected to be reached. Sale and purchase of cobia would be prohibited, including cobia taken under the possession limit, without regard to where such species were harvested, i.e. in state or Federal waters.

For the recreational sector, if the stock ACL is exceeded in any year, the fishing season would be reduced the following year by the amount necessary to ensure that recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL in the following fishing year.

A payback would be assessed if Atlantic migratory group cobia are determined to be overfished and the stock ACL is exceeded. The payback would include a reduction in the sector ACL for the following year by the amount of the overage by that sector in the prior fishing year. Atlantic migratory group cobia are not considered overfished at this time.

To facilitate timely adjustments to harvest parameters and other management measures, the Councils have added the ability to adjust ACLs and AMs, and establish and adjust target catch levels, including ACTs, to the current framework procedures. These adjustments or additions may be accomplished through a regulatory amendment which is less time-intensive than an FMP amendment. By including ACLs, AMs, and ACTs in the framework procedures, the Councils and NMFS would have the flexibility to more promptly alter those harvest parameters as new scientific information becomes available. The proposed addition of other management options into the framework procedures would also add flexibility and the ability to more timely respond to certain future Council decisions through the framework procedures.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 18, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this rule. The IRFA describes the economic impact this rule, if adopted, would have on small entities. A description of the rule, why it is being considered, the objectives of, and legal basis for this rule are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the IRFA follows.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified.

This rule would affect all fishing in the EEZ that is managed under the FMP for Coastal Migratory Pelagic Resources in the Gulf and Atlantic. This includes the EEZ in the Gulf and South Atlantic, as well as the EEZ in the Mid-Atlantic for king mackerel, Spanish mackerel, and cobia. For purposes of fishery management, Atlantic and Gulf migratory groups have been designated for each of the mackerels, and, under this rule, cobia.

This rule would be expected to apply to 1,000 to 2,000 commercial fishing vessels and as many as 2,500 vessels that have Federal permits to engage in for-hire fishing for coastal migratory pelagic species. The commercial fishing vessels that would be expected to be affected by this rule are estimated to average $28,000 to $46,000 (2008 dollars) in gross revenue per vessel for those fishing for king and Spanish mackerel, and $16,000 to $277,000 for vessels harvesting other CMP species (the lower value is for vessels harvesting cero while the upper value is for vessels harvesting dolphin; this range encompasses the vessels harvesting all the remaining CMP species). The for-hire vessels expected to be affected by this rule are mostly charter boats, which charge by the trip, often with six or fewer anglers (paying passengers), and a smaller number of head boats, which charge for each individual angler (only 15 percent of all of the CMP for-hire vessels can carry more than six anglers). Including revenue from all activities, charter boats are estimated to average approximately $88,000 (2008 dollars) in gross revenue per year, while the headboat average is $461,000 (2008 dollars).

The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in commercial finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. A for-hire business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $7.0 million (NAICS code 713990, recreational industries). Based on the average revenue estimates provided above, all commercial and for-hire fishing vessels expected to be directly affected by this rule are determined for the purpose of this analysis to be small business entities.

All of the actions in this rule that would be jointly applicable to the Gulf and Atlantic migratory groups would be administrative in nature or allow status quo harvest behavior. As a result, none of these actions would be expected to result in any direct economic impacts on small entities.

With the exception of the AMs for the Gulf migratory groups of king mackerel, Spanish mackerel, and cobia, the actions in this rule applicable to the Gulf migratory groups are either administrative or allow status quo harvests and fishing behavior. As a result, these actions would not be expected to result in any direct economic impacts on small entities. The proposed AMs for each species would be expected to result in unquantifiable short-term reductions in economic benefits associated with the implementation of harvest restrictions necessary to correct for harvest overages, should such overages be forecast or occur. These impacts cannot be quantified at this time because the overages, and necessary corrections, cannot be forecast. However, any harvest corrections, and associated reduction in short-term economic benefits, would be expected to preserve the long-term biological goals, and long-term economic benefits, associated with the harvest of these stocks.

Because the majority of the actions in this rule applicable to the Atlantic migratory groups are either administrative or allow status quo harvests and fishing behavior, only minimal economic effects would be expected to occur. Only the Spanish mackerel ACL and AMs for king mackerel, Spanish mackerel, and cobia, if implemented, would be expected to result in adverse economic impacts. The specification of the Spanish mackerel ACL would be expected to result in a reduction in ex-vessel revenue to commercial fishermen due to a reduction in the allowable commercial harvest and the AM requirement that harvest, possession, and sale of Spanish mackerel be prohibited when the commercial quota is met. The economic activity associated with this reduction in revenue is an estimated 17 harvester and 10 dealer/processor full-time equivalent jobs. The relative effect of this estimated reduction per small entity is unknown. For the 2004/2005 through 2008/2009 fishing years, an average of 349 vessels recorded Atlantic migratory group Spanish mackerel harvests in the Southeast Federal logbook program. These vessels averaged approximately $28,000 in ex-vessel revenue per vessel per year from all species recorded in the logbook. If divided among these vessels, the estimated reduction in ex-revenue for Spanish mackerel alone (approximately $680,000) would equate to a reduction in average vessel gross revenue of approximately 7 percent. These results do not include any reduction in gross revenue for other species if trips do not occur (are cancelled) as a result of a prohibition on Spanish mackerel commercial harvest. Total vessel Federal logbook-recorded landings of Spanish mackerel accounted for approximately 57 percent (approximately 2.03 million lb (0.9 million kg) of the total Atlantic migratory group Spanish mackerel harvest during this period (approximately 3.57 million lb (1.62 million kg). A significant portion of the difference between these harvest totals may be attributed to harvest in Florida waters where Federal permits and logbooks are not required for Spanish mackerel. The average annual revenue profile of the vessels that harvested the remaining portion of the species is unknown. As a result, the total relative effect of the projected reduction in ex-vessel revenue on the profit of small entity commercial vessels is not known.

Three alternatives, including 13 options or sub-options, were considered for the action to modify the fishery management unit (FMU). The proposed action, which incorporates 7 of the 13 options and sub-options, would remove cero, little tunny, and dolphin from the FMP for both the Gulf and South Atlantic regions, and remove bluefish from the FMP for the Gulf region. The no-action alternative, which would retain the four subject species in the FMP for data-collection purposes only, was not adopted because it would not satisfy the Magnuson-Stevens Act guidelines, which do not allow species to be retained in an FMU for data collection purposes only. The third alternative would add the four species to the FMU and set ACLs and AMs for each, following the stated geographic designations. This alternative was not adopted because the Councils determined that these species no longer require Federal management in the respective regions. The proposed action would not be expected to result in any direct economic impact on small entities.

Five alternatives, including three options, were considered for the action to modify the framework procedures. The no-action alternative would not change the framework procedures and was not adopted because it is not consistent with current assessment and management methods. The remaining alternatives were not adopted either because they would have been more restrictive in the items that could be changed through framework procedures, or because they would have given the Councils and NMFS either too much or too little authority to change management outside of the plan amendment process. The proposed action is administrative in nature and would not be expected to result in any direct economic impact on small entities.

Three alternatives were considered for the action to establish separate Atlantic and Gulf migratory groups of cobia. The proposed action would separate cobia into two groups at the Gulf and South Atlantic jurisdictional boundary. The no-action alternative would not split cobia into two migratory groups, and was not adopted because the Councils determined that sufficient information exists to demonstrate that there are at least two different migratory groups and regional management is appropriate. The other alternative to the proposed action would split the two migratory groups at the Miami-Dade/Monroe County line, and was not adopted because it would not best meet the Councils' goals and objectives for the FMP. The proposed action is administrative in nature and would not be expected to result in any direct economic impact on small entities.

Four alternatives were considered for the action to set the ACL for Gulf migratory group cobia. The proposed action would establish a single stock ACL and set the ACL equal to the ABC. The no-action alternative was not adopted because it would not establish an ACL, as required by the Magnuson-Stevens Act. Another alternative would also set the total ACL equal to the ABC, but would specify sector ACLs. This alternative was not adopted because both sectors are currently managed under the same harvest restrictions and sector separation would not be expected to be beneficial at this time. The remaining alternatives and associated options would establish a buffer between the ACL and ABC and result in lower stock or sector ACLs. These alternatives and options were not adopted because the Councils elected to establish a buffer to the ABC for this species through the ACT rather than the ACL.

Three alternatives, including four options, were considered for the action to set the ACT for Gulf migratory group cobia. The proposed action would specify a single stock ACT and set the ACT equal to 90 percent of the ACL. The no-action alternative would not establish an ACT, but would be an acceptable action because an ACT is not required. This alternative was not adopted because the Councils determined that a buffer between the ABC and allowable harvest was appropriate for this stock and the adoption of the no-action alternative would be inconsistent with the Councils' decision to establish this buffer through the ACT instead of the ACL. The other options were not adopted because they would establish sector ACTs, which would be inconsistent with the Councils' decision to establish a single stock ACL, and/or they would specify a lower stock ACT than the proposed action, and thereby establish a larger buffer than is expected to be necessary for this stock.

Three alternatives, including seven options (options listed under the no-action alternative were not included in this tabulation), were considered for the action to set AMs for Gulf migratory group cobia. The proposed action would set an in-season AM and prohibit harvest for the remainder of the fishing year from the date the ACT is reached or is projected to be reached. AMs for the commercial harvest of this stock do not currently exist under the status quo. As a result, the no-action alternative was not adopted because it would not establish AMs that account for the harvest from all sectors, as required by the Magnuson-Stevens Act. Two options to the proposed action would also establish in-season AMs but would trigger the AMs when 90 percent of the ACT is reached or projected to be reached. Both options would reduce the possession limit to one fish per person per day, but only one option would prohibit possession of cobia and only then if the ACL is reached and not the ACT. These options were not adopted because the option that would just reduce the possession limit would provide insufficient assurance that the ACL would not be exceeded, while data monitoring issues would likely render the other option inoperable. The remaining alternative and associated four options to the proposed action would establish post-season AMs, each varying in method (overage payback, reduction in possession limit, reduced season) or period of assessment (the overage assessment would be based on multi-year averages). These options were not adopted because the Councils determined that in-season assessment would be more effective in ensuring the ACL is not exceeded. The proposed action would not be expected to result in any direct economic impact on small entities because the proposed ACT (1.31 million lb (0.59 million kg)) exceeds the estimated status-quo harvest (1.07 million lb (0.49 million kg)) for Gulf migratory group cobia.

Five alternatives, including 12 options, were considered for the action to set the ACL for Gulf migratory group king mackerel. The proposed action would set the aggregate (stock) ACL equal to the ABC, and set sector ACLs using current allocation percentages. The no-action alternative would set the stock ACL equal to the current total allowable catch (TAC), and was not adopted because the TAC is less than the ABC and, as a result, this action would have resulted in less economic benefits than the proposed action. The remaining three alternatives to the proposed action would set the stock ACL at 80-90 percent of ABC, and were not adopted because each would have allowed lower harvest, and associated economic benefits, than the proposed action, and the Councils have determined that the condition of this stock and level of management uncertainty does not require a buffer between the ACL and ABC. It is noted that the proposed stock ACL would be expected to allow continued average annual harvest. As a result, the proposed action would not be expected to result in any direct economic impacts on small entities.

Three alternatives, including 7 options or sub-options (options and sub-options listed under the no-action alternative were not included in this tabulation), were considered for the action to set AMs for Gulf migratory group king mackerel. The proposed action, the no-action alternative, would not set new AMs for this stock. The alternatives, and associated options or sub-options, to the proposed action can be divided into two general categories; alternatives that would change the current in-season AMs (two options), and alternatives that would set post-season AMs (two options encompassing five sub-options). None of these options or sub-options were adopted because the Councils determined that current regulations provide sufficient AMs for the recreational and commercial sectors. The proposed action is not expected to have a direct economic impact on small entities.

Four alternatives, including nine options, were considered for the action to set the ACL for Gulf migratory group Spanish mackerel. The proposed action would set the aggregate ACL equal to the ABC and establish a stock ACL encompassing harvest by both sectors. The no-action alternative would maintain an ACL equal to the current TAC for Gulf migratory group Spanish mackerel. This action was not adopted because the ACL cannot exceed the ABC and the status quo TAC is greater than the proposed ABC. Compared with the proposed action, some options would establish sector ACLs. These options were not adopted because the Councils determined the establishment of sector ACLs would unnecessarily restrict catch and not allow the achievement of optimum yield. The remaining two alternatives, encompassing six options, would specify a single, stock ACL as a portion of ABC (80 percent or 90 percent of ABC, rather than 100 percent). These alternatives and options would have resulted in reductions in economic benefits relative to the proposed action and were not adopted because the Councils determined that a buffer between the ACL and ABC was not needed for this stock.

Three alternatives, including six options or sub-options (options and sub-options listed under the no-action alternative were not included in this tabulation), were considered for the action to set AMs for Gulf migratory group Spanish mackerel. The proposed action would establish in-season AMs that would allow harvest to be prohibited if the stock ACL is reached or projected to be reached. The no-action alternative would maintain current AMs for Gulf migratory group Spanish mackerel and was not adopted because the current AMs are implemented by sector and are inconsistent with the proposed action to establish a stock ACL. One option to the proposed action would establish in-season AMs that implement a commercial trip limit and reduced recreational bag limits if the stock ACL is reached or projected to be reached. This option was not adopted because it would require multiple in-season actions and may result in a lower certainty that the ACL not be exceeded compared to the proposed action because harvest would not be prohibited. The remaining alternative and associated options would establish post-season AMs. These options were not adopted because they would be expected to impose an increased and unnecessary burden on fishermen and the administration. The proposed action is not expected to have an economic impact on small entities because the proposed stock ACL (5.15 million lb (2.34 million kg)) is greater than the 5-year average (3.63 million lb (1.65 million kg)) or 10-year average (3.95 million lb (1.79 million kg) landings.

Five alternatives, including five options, were considered for the action to set the ACL and OY for Atlantic migratory group king mackerel. The proposed action would set the ACL and OY equal to the ABC, with the ABC set equal to the average of the current South Atlantic Council's SSC's ABC recommendations for the 2011-2013 seasons. This would result in an ACL of 10.46 million lb (4.75 million kg). The no-action alternative was not adopted because it would not have resulted in as concise a rule for setting the ACL and OY and would have resulted in a lower ACL, 10.0 million lb (4.54 million kg), than the proposed action. Two alternatives to the proposed action would have also set the ACL and OY equal to the ABC but with the ABC equal to, alternatively, the lowest and highest SSC recommended ABCs for 2011-2013. These alternatives were not adopted because they were determined to be, alternatively, excessively or insufficiently conservative compared to the proposed action. The final alternative to the proposed action, which included five options, would have set the ACL and OY equal to a percentage of the ABC, varying from 65-90 percent. These options were not adopted because the Councils determined that the status and management certainty of the king mackerel stock did not require a buffer between the ACL or OY and the ABC.

Four alternatives were considered for the action to set the recreational sector ACT for Atlantic migratory group king mackerel. The proposed action for this sector would set the ACT based on the uncertainty associated with the estimate of the ACL and would result in a recreational sector ACT of 6.11 million lb (2.77 million kg), which would be less than the proposed recreational sector ACL, but greater than current average annual harvests. As a result, no reduction in current recreational harvest or associated economic benefits or impacts on small entities would be expected to occur. The no-action alternative would not set a recreational sector ACT and was not adopted because the Councils determined that the management uncertainty associated with the recreational harvest of this stock is sufficient to require a buffer between allowable harvest and the ACL. The two remaining alternatives to the proposed action would set the recreational sector ACT based on alternative fixed percentages of the ACL. Neither of these alternatives was adopted because they would result in an ACT that was less reflective of the uncertainty associated with the estimation of the ACL than the proposed action. As applied to the proposed estimate of the ACL, each of these alternatives would also result in a lower recreational harvest, and reduced economic benefits, than the proposed action.

Four alternatives, including ten options, were considered for the action to set AMs for Atlantic migratory group king mackerel. The proposed action includes seven of the options spread over three alternatives. The proposed action would continue in-season quota monitoring and closure if the commercial sector ACL is met or projected to be met, as occurs under the status quo. In addition, the proposed action would adopt post-season adjustments. These adjustments include post-season reductions in bag limits for the recreational sector based on moving multi-year average harvests, to assure that the recreational sector ACL is not exceeded. Post-season bag limits would only be reduced if the stock ACL (both sectors) is exceeded. Post-season overage payback would be required for both sectors, where appropriate, if the stock is overfished and the stock ACL is exceeded. The no-action alternative would continue the current quota monitoring for the commercial sector, and closure when appropriate; it also includes authority under the framework procedures for the Regional Administrator (RA) to implement several actions, including reduction of the recreational bag limit to zero, if the recreational allocation has been met or is projected to be met. This alternative was not adopted because it would not have been as flexible as the proposed action in factoring in the status of the stock, the total harvest, and annual harvest variability by the recreational sector into the AM decision. One option to the proposed action would have reduced the length of the subsequent recreational fishing season instead of a reduction in the bag limit in the event of a recreational overage. This alternative was not adopted because allowing the sector to continue harvest all year under a reduced bag limit, as would be allowed under the proposed action, would be expected to result in more economic benefits than a closed season. The remaining options to the proposed action would have imposed sector paybacks regardless of stock status. These options were not adopted because each would be expected to result in unnecessary reductions in economic benefits.

Three alternatives, including five options, were considered for the action to set the ACL and OY for Atlantic migratory group Spanish mackerel. The proposed action would set the ACL and OY equal to the ABC. The no-action alternative was not adopted because it would not have resulted in as concise a procedure as the proposed action to determine the ACL based on the ABC, and the resultant ACL would exceed the proposed ABC, which would be inconsistent with the Magnuson-Stevens Act National Standard 1 guidelines (74 FR 3178, January 16, 2009). The third alternative to the proposed action, which included five options, would have set the ACL equal to a percentage of the ABC, varying from 75-95 percent. These options were not adopted because they would be inconsistent with the Councils' determination that specification of a buffer for this stock could be adequately accomplished through the proposed ACT.

Four alternatives were considered for the action to set a recreational sector ACT for Atlantic migratory group Spanish mackerel. The proposed action would be based on the uncertainty associated with the estimate of the sector ACL and would result in a recreational sector ACT of 2.32 million lb (1.05 million kg), which would be less than the proposed recreational sector ACL, but greater than current average annual harvests. As a result, no reduction in current harvest or associated economic benefits or impacts on small entities in the recreational sector would be expected to occur. The no-action alternative would not set a recreational sector ACT and was not adopted because the Council determined that the management uncertainty associated with the recreational harvest of this stock requires a buffer between allowable harvest and the ACL. The two remaining alternatives to the proposed action would set the recreational sector ACT based on alternative fixed percentages of the ACL. Neither of these alternatives was adopted because they would result in an ACT that was less reflective of the uncertainty associated with the estimation of the ACL than the proposed action. As applied to the proposed estimate of the ACL, each of these alternatives would also result in a lower recreational harvest and reduced economic benefits than the proposed action.

Four alternatives, including nine options, were considered to set AMs for Atlantic migratory group Spanish mackerel. The proposed action includes six of the options spread over three alternatives. The proposed action would implement enhanced quota monitoring for the commercial sector, should in-season closure be necessary, and would adopt post-season adjustments for the recreational sector based on moving multi-year average harvests, including a reduction in the bag limit to assure that the sector ACL is not exceeded, if the stock ACL is exceeded. The proposed action would also require sector overage payback, where appropriate, if the stock is overfished and the stock ACL is exceeded. The no-action alternative would continue the current quota monitoring and staged trip limits for the commercial sector in place of sector closure. It also includes authority under the framework procedures for the RA to implement several actions, including reduction of the recreational bag limit to zero, if the recreational allocation has been met or is projected to be met. This alternative was not adopted because it would not have been as flexible as the proposed action in factoring in the status of the stock, the total harvest, and annual harvest variability by the recreational sector into the AM decision. This alternative was also not adopted because it would not provide for in-season closure for the commercial sector. In the event of a sector overage, one option to the proposed action would have reduced the length of the subsequent recreational fishing season (no reduction in the bag limit) to assure that the sector ACL is not exceeded. This option was not adopted because it would result in lower economic benefits than the proposed action. The remaining two options to the proposed action would have imposed sector paybacks regardless of stock status. These options were not adopted because each would be expected to result in unnecessary reductions in economic benefits.

Three alternatives, including five options, were considered for the action to set the ACL and OY for Atlantic migratory group cobia. The proposed action would set the ACL and OY equal to the ABC. The no-action alternative was not adopted because it would not set the ACL or OY, as required by the Magnuson-Stevens Act guidelines. The third alternative to the proposed action, which included five options, would have set the ACL and OY equal to a percentage of the ABC, varying from 75-95 percent. These options were not adopted because they would be inconsistent with the Councils' determination that specification of a buffer for this stock could be adequately accomplished through the proposed ACT.

Four alternatives were considered for the action to set a recreational sector ACT for Atlantic migratory group cobia. The proposed action for the recreational sector would set the ACT based on the uncertainty associated with the estimate of the ACL and would result in a recreational sector ACT of 1,184,688 lb (537,365 kg), which would be less than the proposed sector ACL but equal to current average annual harvests. As a result, no reduction in current recreational harvest or associated economic benefits or impacts on small entities would be expected to occur. The no-action alternative would not set a recreational sector ACT and was not adopted because the Councils determined that the management uncertainty associated with the recreational harvest of this stock requires a buffer between allowable harvest and the sector ACL. The two remaining alternatives to the proposed action would set the recreational sector ACT based on alternative fixed percentages of the ACL. Neither of these alternatives was adopted because they would result in an ACT that was less reflective of the uncertainty associated with the estimation of the ACL than the proposed action.

Five alternatives, including seven options, were considered for the action to set AMs for Atlantic migratory group cobia. The proposed action includes five of the options spread over three alternatives and would: Implement in-season quota monitoring for the commercial sector; adopt post-season adjustments for the recreational sector based on moving multi-year average harvests, including a reduction in the season length to assure that the sector ACL is not exceeded if the stock ACL is exceeded; and require sector overage payback, where appropriate, but only if the stock is overfished and the stock ACL is exceeded. The no-action alternative would continue the current authority to revert the recreational and commercial possession limit to zero if the sectors have met or are projected to meet their allocation. This alternative was not adopted because it would not be as flexible as the proposed action in factoring the status of the stock, the total harvest, and annual harvest variability by the recreational sector into the AM decision. One alternative to the proposed action would explicitly prohibit the purchase and sale of cobia if the commercial quota is met or projected to be met, though this would be functionally equivalent to the status quo as a zero possession limit would preclude purchase or sale. This alternative would not establish additional AMs for the recreational sector, resulting in current recreational AMs remaining in effect. Thus, this alternative would be functionally equivalent to the status quo. Nevertheless, this alternative was not adopted because it, like the no-action alternative, would not be as flexible as the proposed action in factoring the status of the stock, the total harvest, and annual harvest variability by the recreational sector into the AM decision. The remaining options to the proposed action would have imposed sector paybacks regardless of stock status. These options were not adopted because each would be expected to result in unnecessary reductions in economic benefits.

Additional actions and alternatives were considered in the amendment but are not included in this rule because they would either establish management reference points or the proposed action would not result in any regulatory change. These actions and alternatives are discussed in the following paragraphs.

Three alternatives were considered for the action to establish an ABC control rule for Gulf migratory group cobia. The proposed action would determine the appropriate level of risk and/or buffer to set between the overfishing limit (OFL) and ABC based on a tiered approach that considers new information available on the stock and identified through updated stock assessments. The no-action alternative was not adopted because it would not establish an ABC control rule, as recommended by the Magnuson-Stevens Act guidelines. The second alternative to the proposed action was not adopted because it would establish an ABC control rule that sets the ABC using a static definition which would not allow for changes in the level of risk based on updated stock assessments and, therefore, would not be as flexible as the proposed action.

Three alternatives were considered for the action to establish an ABC control rule for Gulf migratory king mackerel. The proposed action would determine the appropriate level of risk and/or buffer to set between the OFL and ABC based on a tiered approach that would consider new information available on the stock and identified through updated stock assessments. The no-action alternative was not adopted because it would not establish an ABC control rule, as recommended by the Magnuson-Stevens Act guidelines. The second alternative to the proposed action was not adopted because it would establish an ABC control rule that sets the ABC using a static definition which would not allow for changes in the level of risk based on updated stock assessments and, therefore, would not be as flexible as the proposed action.

Three alternatives were considered for the action to set an ACT for Gulf migratory group king mackerel. The proposed action, the no-action alternative, would not set an aggregate ACT. The remaining alternatives and associated options would all set the aggregate ACT equal to a portion of the ACL, varying from 85-90 percent, with or without sector ACTs. These alternatives and options were not adopted because each would have allowed lower harvest, and associated economic benefits, than the proposed action and the Councils determined that the condition of this stock and level of management uncertainty did not require a buffer between the ACT and ACL. Four options would have set ACTs that would not be consistent with the Councils' decision to set ACLs in accordance with current allocation percentages.

Three alternatives were considered for the action to establish an ABC control rule for Gulf migratory group Spanish mackerel. The proposed action would determine the appropriate level of risk and/or buffer to set between the OFL and ABC based on a tiered approach that considers new information available on the stock and identified through updated stock assessments. The no-action alternative was not adopted because it would not establish an ABC control rule, as recommended by the Magnuson-Stevens Act guidelines. The second alternative to the proposed action was not adopted because it would establish an ABC control rule that sets the ABC using a static definition which would not allow for changes in the level of risk based on updated stock assessments and, therefore, would not be as flexible as the proposed action.

Four alternatives, including six options, were considered for the action to set an ACT for Gulf migratory group Spanish mackerel. The proposed action, the no-action alternative, would not set an ACT for Gulf migratory group Spanish mackerel. The alternatives to the proposed action, and associated options, would implement a stock ACT lower than the ACL and result in lower harvest, and associated economic benefits, than the proposed action. These alternatives and options were not adopted because the Councils determined that a buffer between the ACT and ACL was not needed for this stock. Some options would have set ACTs that are not consistent the Councils' decision to specify a single (stock) ACL.

Four alternatives, including three options, were considered for the action to establish an ABC control rule for Atlantic migratory group king mackerel. The proposed action would determine the appropriate level of risk and/or buffer to set between the OFL and ABC based on a tiered approach that considers new information available on the stock and identified through updated stock assessments. The no-action alternative was not adopted because it would not establish an ABC control rule, as recommended by the Magnuson-Stevens Act guidelines. The remaining alternatives and associated options to the proposed action were not adopted because they would establish an ABC control rule that sets the ABC using a static definition which would not allow for changes in the level of risk based on updated stock assessments and, therefore, would not be as flexible as the proposed action.

Three alternatives were considered for the action to set the commercial sector ACT for Atlantic migratory group king mackerel. The no-action alternative is the proposed action for this sector and would not set a commercial sector ACT for Atlantic migratory group king mackerel. Two alternatives to this proposed action would set ACTs that establish a buffer between the commercial sector ACT and the commercial sector ACL, resulting in lower allowable harvest and reduced economic benefits than the proposed action. Neither of these two alternatives was adopted because the Councils determined that management uncertainty for this sector of this stock does not require a harvest buffer between the ACT and ACL.

Two alternatives were considered for the action to establish an ABC control rule for Atlantic migratory group Spanish mackerel. The proposed action would determine the appropriate level of risk and/or buffer to set between the OFL and ABC based on a tiered approach that considers new information available on the stock and identified through updated stock assessments. The no-action alternative was not adopted because it would not establish an ABC control rule, as recommended by the Magnuson-Stevens Act guidelines.

Three alternatives were considered for the action to set a commercial sector ACT for Atlantic migratory group Spanish mackerel. The no-action alternative is the proposed action for this sector and would not set a commercial sector ACT for Atlantic migratory group Spanish mackerel. Under this proposed action, commercial sector harvest would be limited to the ACL, which is less than the current harvest and would be expected to result in a reduction in short-term economic benefits under the proposed AMs. Two alternatives to the proposed action would set ACTs that establish a buffer between the commercial sector ACT and the commercial sector ACL, resulting in an allowable harvest that is further below the current harvest than the proposed action and would be expected to result in a greater reduction in harvests and associated economic benefits than the proposed action. Neither of these alternatives was adopted because the Councils determined that management uncertainty for this sector of this stock does not require a harvest buffer between the ACT and ACL.

Five alternatives were considered for the action to change the management measures for the Atlantic migratory group Spanish mackerel. The proposed action, the no-action alternative, would not make any changes in the management measures for this stock. The four alternatives to the proposed action would have increased the restrictions on recreational harvests through reduced bag limits and/or vessel limits. These alternatives were not adopted because current harvest would not need to be reduced under the proposed allowable recreational harvest for this stock. As a result, increased restrictions on recreational harvest would be expected to unnecessarily reduce economic benefits to fishery participants and associated businesses.

Five alternatives, including three options, were considered for the action to establish an ABC control rule for Atlantic migratory group cobia. The proposed action would adopt the Gulf Council's SSC-recommended ABC control rule, which is essentially the same as the South Atlantic Council's SSC-recommended control rule. This action would determine the appropriate level of risk and/or buffer to set between the OFL and ABC based on a tiered approach that considers new information available on the stock, as identified through updated stock assessments. As applied to this stock, this approach would set the ABC equal to the mean plus 1.5 times the standard deviation of the most recent 10 years of landings data. The no-action alternative was not adopted because it would not establish an ABC control rule, as recommended by the Magnuson-Stevens Act guidelines. The remaining two alternatives and associated options to the proposed action were not adopted because they would establish an ABC control rule that sets the ABC using a static definition which would not allow for changes in the level of risk based on updated stock assessments and, therefore, would not be as flexible as the proposed action. Additionally, application of the rule specified by these alternatives and options would require an estimate of the OFL, which is considered unknown by the SSC.

Three alternatives were considered for the action to define sector allocations for Atlantic migratory group cobia. The proposed action would define allocations based on weighted averages of 2000-2008 and 2006-2008 harvest data. The no-action alternative would not define sector allocations and was not adopted because it would not be consistent with the proposed actions to establish sector ACLs, ACTs (recreational sector only), and AMs. The second alternative to the proposed action would only use 2006-2008 data to determine the allocations and was not adopted because of the potential that this specification may not contain adequate consideration of historic landings. This alternative and the proposed action would result in identical allocations.

Three alternatives were considered for the action to set a commercial sector ACT for Atlantic migratory group cobia. The no-action alternative is the proposed action for this sector and would not set a commercial sector ACT for Atlantic migratory group cobia. Two alternatives to this proposed action would set ACTs that establish a buffer between the commercial sector ACT and the commercial sector ACL, resulting in lower allowable harvest and reduced economic benefits. Neither of these alternatives was adopted because the Councils determined that management uncertainty for this sector of this stock does not require a harvest buffer between the ACT and ACL.

Six alternatives were considered for the action to change the management measures for the Atlantic migratory group cobia. The proposed action, the no-action alternative, would not make any changes in the management measures for this stock. The five alternatives, and associated options, to the proposed action would have increased restrictions on either commercial or recreational harvests through reduced possession limits per trip, person, or day. These alternatives were not adopted because current harvest would not need to be reduced under the proposed allowable sector harvests for this stock. As a result, increased restrictions on harvest would be expected to unnecessarily reduce economic benefits to fishery participants and associated businesses.

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

Background

NMFS announced the stock status of sandbar, dusky, and Atlantic and Gulf of Mexico blacknose shark stocks in a Federal Register notice on October 7, 2011 (76 FR 62331). The notice also announced NMFS' intent to undertake rulemaking to rebuild and/or end overfishing of these Atlantic shark stocks and to prepare an Environmental Impact Statement (EIS) to assess the potential effects on the human and natural environment resulting from this rulemaking. The notice also announced that NMFS is in the scoping phase of the rulemaking process and notified the public of five public scoping meetings and one conference call to provide the opportunity for public comment on potential shark management measures. Further details regarding the public scoping meetings are provided in the October 7, 2011, notice and are not repeated here.

In the original Federal Register notice, the date for the Galloway, NJ, public scoping meeting contains an error and is in need of correction.

Accordingly, in the October 7, 2011 (76 FR 62331) notice (Doc. 2011-26021)—on page 62334, in Table 2, column 1, row 1—the date “October 12, 2011” is corrected to read as follows:

“October 11, 2011.”

Background

The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA) amended the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to include new requirements for annual catch limits (ACLs), accountability measures (AMs), and other provisions regarding preventing and ending overfishing and rebuilding fisheries. On January 16, 2009, NMFS published a final rule (74 FR 3178) amending the National Standard 1 Guidelines (NS1Gs) to implement these new requirements. In response, the Pacific Fishery Management Council (Council) convened an ad hoc Salmon Amendment Committee to develop alternatives for Amendment 16 to the FMP to address these new requirements. In June 2011, the Council adopted Amendment 16. The Council transmitted the amendment to NMFS on September 12, 2011. NMFS published a Notice of Availability in the Federal Register (76 FR 57945, September 19, 2011) to notify the public of the availability of the amendment and invite comments. Concurrently with developing Amendment 16, alternatives were analyzed in a Draft EA.

This proposed rule identifies changes to the regulations under 50 CFR 660 subpart H to implement Amendment 16. The Council has deemed the proposed regulations to be necessary and appropriate as required by section 303(c) of the MSA. This document also announces the availability of the Draft EA for public review and comment. Key Components of Amendment 16.

Stocks “in the fishery.” Stocks in need of conservation and management measures in Council-area fisheries would be classified as “in the fishery” under Amendment 16. Target stocks in Council-area fisheries are hatchery stocks and productive natural stocks with ocean distributions primarily within the Council area. Non-target salmon stocks include stocks listed under the Endangered Species Act (ESA) or depressed natural stocks. Under Amendment 16, all salmon stocks currently included in the FMP would be considered to be in the fishery except for Canadian Chinook, coho and pink stocks, and mid-Columbia River spring Chinook salmon. The Canadian stocks would be removed because they are managed under the Pacific Salmon Treaty, and their status is assessed by the Canadian government. The mid-Columbia River spring Chinook salmon would be removed because Council area fisheries have negligible impacts on the stock, and therefore they are not in need of conservation and management measures in fisheries under Council authority. Two stocks would be added to the FMP: Oregon coastal hatchery coho and Willapa Bay natural coho. Smith River Chinook salmon would also be identified as a separate stock from other ESA listed California Coastal Chinook stocks.

Stock Complexes. Stock complexes are groups of stocks that are sufficiently similar in geographic distribution, life history, and vulnerabilities to the fishery such that the impacts of management actions on the stocks are similar. Stock complexes may be formed to facilitate management requirements such as setting ACLs, or determining stock status. Three Chinook stock complexes would be specified in Amendment 16 for the purposes of specifying ACLs and AMs: Central Valley Fall (CVF), Southern Oregon Northern California (SONC), and far-north migrating coastal (FNMC). The status of stocks in these complexes would be assessed individually.

Internationally managed stocks. Amendment 16 identifies the FNMC Chinook complex; Washington coastal and Puget Sound coho; and Puget Sound pink salmon as exempt from the ACL and AM requirements in the MSA because these stocks are subject to management under an international agreement (Pub. L. 109-479, sec. 104(b), MSA § 303 note). These stocks are managed in accordance with terms of the Pacific Salmon Treaty between the U.S. and Canada. While stocks managed under an international agreement can be exempted from the specification of ACLs, all other MSA 303(a) requirements apply, such as specification of maximum sustainable yield (MSY) and status determination criteria (SDC).

Under Amendment 16, SDC would be determined for natural stocks  1 for which specification of these reference points is appropriate and possible, based on the best available science. SDC would be specified only for individual stocks, including indicator stocks within stock complexes, not for stock complexes as a whole. The proposed SDC incorporate the reference points identified in the MSA and NS1Gs; however, the proposed definitions of some of these reference points differ slightly from those in the NS1Gs to accommodate the life history of Pacific salmon, whose reproduction is semelparous  2 and for which a stock's full reproductive potential can be spread out over a multi-year period. These modified approaches are proposed in accordance with the provision allowing for flexibility in the application of NS1Gs (50 CFR 600.310(h)(3)).

Under Amendment 16, a stock would be considered subject to overfishing when the postseason estimate of the fishing mortality rate (F) exceeds the maximum fishery mortality threshold (MFMT), where the MFMT is generally defined as F MSY . The definitions of overfished, approaching overfished, and rebuilt rely on multi-year postseason estimates of spawning escapement  3 to be assessed using a 3-year geometric mean to determine status. Minimum stock size threshold (MSST) would be variable among stocks, with MSST defined for most stocks as 0.5*S MSY , but MSST for Sacramento River fall Chinook (SRFC), Klamath River fall Chinook (KRFC), Grays Harbor, Queets, Hoh, and Quillayute coho defined as 0.75*S MSY , and MSST for Puget Sound coho defined as the stock specific low/critical abundance breakpoint multiplied by one minus the low exploitation rate limit. The Puget Sound coho provisions are designed to be consistent with the conservation and management provisions developed through the Pacific Salmon Treaty. An approaching overfished determination would be made if the geometric mean of the two most recent postseason estimates of spawning escapement and the current preseason forecast of spawning escapement are below the MSST.

Under Amendment 16, specification of overfishing limit (OFL), ABC, and ACL reference points would be made on an individual stock basis as required based on the best available science. These reference points would not be specified for internationally managed stocks identified in the FMP (Pub. L. 109-479, sec. 104(b), MSA section 303 note). Hatchery stocks and ESA-listed stocks identified in the FMP would be managed to meet hatchery goals and ESA consultation standards, consistent with the NS1Gs, which provide the flexibility to consider alternative approaches for specifying ACLs and AMs for these types of stocks. Under Amendment 16, the relevant stocks for specifying OFL/ABC/ACL reference points would be Sacramento River fall Chinook (SRFC) and Klamath River fall Chinook (KRFC) as indicator stocks for the CVF and SONC Chinook complexes respectively.

Under Amendment 16, OFL, ABC and ACL would be specified as escapement levels for each stock. These OFL, ABC, and ACL escapement levels would be determined annually using exploitation rates ( i.e., F MSY, F ABC, and F ACL ) and abundance estimates for each stock. F ABC incorporates a reduction from F MSY to account for scientific uncertainty in F MSY. F MSY and F ABC are defined in terms of the total exploitation rate across all salmon fisheries (Federal and nonfederal jurisdiction). Impacts in non-salmon fisheries are included in the natural mortality assumptions used to estimate population parameters for salmon stocks; therefore, all fishing mortality sources are accounted for when reference points are specified. Amendment 16 would generally leave in place existing conservation objectives for stocks in the FMP; the notable exception would be Klamath River fall Chinook salmon, for which the spawning escapement component of the conservation objective would change from 35,000 to 40,700 naturally spawning adults. Under the amendment, the fishery would be managed to meet the greater of either the ACL or the conservation objective in a given year.

The de minimis fishing provisions that exist in the current FMP would be revised by Amendment 16 to allow for more flexibility in setting annual regulations when the conservation objectives for limiting stocks are projected not to be met, and provide opportunity to access more abundant salmon stocks that are typically available in the Council management area when the status of one stock may otherwise preclude all ocean salmon fishing in a large region, as is the case under the conservation alert in the current FMP. De minimis fishing provisions vary by stock and depend on the form and structure of the conservation objective. Amendment 16 describes de minimis fishing provisions that would be applied to SRFC and KRFC specifically. Under Amendment 16, de minimis fishing provisions would use a multi-step F-based control rule that would allow some harvest at all abundance levels. As stock size declines, the allowable exploitation rate declines from F ABC in order to achieve S MSY until F = 0.25. A constant maximum exploitation rate of 0.25 would be allowed until the potential spawner abundance reaches the midpoint between S MSY and MSST where F would be reduced in proportion to abundance to no more than 10 percent at MSST. At potential spawner abundance levels less than or equal to half of MSST the allowable exploitation rate would be further reduced to levels approaching zero as abundance approaches zero.

This proposed rule includes changes to the existing regulations at 50 CFR 660.401 et seq. to implement Amendment 16 and additional updates. These are described below.

The definition of the Pacific Coast Salmon Plan is updated to address recent amendments.

References to the regulations governing the Pacific groundfish fishery are updated consistent with recent changes to 50 CFR part 660 (75 FR 60868, October 1, 2010).

Language is added to allow flexibility in implementing fishery closures by inseason action to meet fishery management objectives. Specifically, under the proposed language fishery closures could be implemented at times other than at 2400 hours (midnight) in order to allow for more precise management of the fishery.

Information on the Salmon Troll Yelloweye Rockfish Conservation area is updated consistent with recent changes to 50 CFR part 660 (75 FR 60868, October 1, 2010).

Language regarding annual specifications is modified to include ACLs and to state that they and other specifications and management measures are determined consistent with the FMP. The definition of “allowable ocean harvest levels” is revised to specify that such levels must ensure that ACLs and conservation objectives are not exceeded. This section is also modified to allow for mark-selective fisheries and to define the term “mark-selective.”

Language relative to conservation objectives is updated, including treatment of ESA-listed stocks within annual specifications and management measures. Language is added stating that annual management measures will be designed to ensure that escapement levels reach or exceed ACLs.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 16, other provisions of the Magnuson- Stevens Act, and other applicable law, subject to further consideration after public comment.

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

A Draft EA has been prepared for Amendment 16; a copy of the Draft EA is available online at http://www.pcouncil.org/. The Draft EA includes a regulatory impact review (RIR) and preliminary regulatory flexibility analysis, NMFS has revised the RIR and drafted an initial regulatory flexibility analysis (IRFA) and is making available its revised RIR and IRFA for public review and comment.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble, and are not repeated here. The RIR and IRFA are available for public review and comment (see ADDRESSES ). A summary of the analysis follows: The Salmon FMP (PFMC 2007) establishes conservation and allocation guidelines for annual management of salmon off the coasts of Washington, Oregon, and California. This framework allows the Council to develop measures responsive to stock status in a given year. Section 3 of the current Salmon FMP describes the conservation objectives for Salmon FMP stocks necessary to meet the dual MSA objectives of obtaining optimum yield (OY) from a fishery while preventing overfishing. Each stock has a specific objective, generally designed to achieve MSY, maximum sustained production (MSP), or in some cases, an exploitation rate to serve as an MSY proxy.

The Salmon FMP also specifies criteria to determine when overfishing may be occurring and when a stock may have become overfished. These conditions are referred to as a Conservation Alert and an Overfishing Concern, respectively. In addition, the Salmon FMP also specifies required actions when these conditions are triggered. The alternatives described in Section 2 are structured around the actions required when a Conservation Alert is triggered. This proposed action will bring the Salmon FMP into compliance with the MSA, as amended in 2007, and the revised NS1Gs, by developing and implementing ACLs and AMs to prevent overfishing on stocks in the fishery to which MSA section 303(a)(15) applies, ensure “measurable and objective” SDC for stocks in the fishery, and define the control rules under which de minimis fishing opportunity would take place consistent with NS1.

The Pacific Fishery Management Council's “Review 2010 Ocean Salmon Fisheries” provides the following economic snapshot of the 2010 fishery. Total 2010 ex-vessel value of the Council-managed non-Indian commercial salmon fishery was $7.15 million, which is the fifth lowest on record, but more than four times above its 2009 level of $1.5 million. California had its first commercial salmon fishery since 2007. The 2010 ex-vessel value of the commercial fishery was 28 percent below the 2005-2009 inflation-adjusted average of $10 million and 88 percent below the 1979 through 1990 inflation-adjusted average of $59.3 million. Based on Pacific Coast Fisheries Information Network (PacFIN) data, a total of 641 vessels participated in the non-tribal West Coast commercial salmon fishery in 2010. This is more than double the number that participated in 2009 (313), and nearly triple the number in 2008. However the 2010 total was down 36 percent from 2007's total of 1,007 vessels.

The preliminary number of vessel-based ocean salmon recreational angler trips taken on the West Coast in 2010 was 182,900, a decrease of three percent from 2009, and 70 percent below the 1979 through 1990 average. Compared with 2009, preliminary estimates of the number of trips taken in 2010 decreased by 37 percent in Oregon and 18 percent in Washington. California effort was up substantially since the sport fishery was not restricted to a 10-day fishery in the Klamath Management Zone as it was in 2009; however it was still severely depressed compared to historic levels. Recreational salmon fishing takes place primarily in two modes, (1) Anglers fishing from privately owned pleasure crafts, and (2) anglers employing the services of the charter boat fleet. In general, success rates on charter vessels tend to be higher than success rates on private vessels. Small amounts of shore-based effort directed toward ocean area salmon occur, primarily from jetties and piers. Coastwide, the proportion of angler trips taken on charter vessels in 2010 was relatively stable at 24 percent compared with 23 percent in 2009; however, underlying this trend was a decline in the proportion of charter trips in Oregon and increases in California and Washington. During 2010, the Review indicates that there were 465 charterboats that participated in the 2010 fishery.

While some of the treaty Indian harvest was for ceremonial and subsistence purposes, the vast majority of the catch was commercial harvest. For all of 2010 the preliminary ex-vessel value of Chinook and coho landed in the treaty Indian ocean troll fishery was $1.8 million, compared with the ex-vessel value in 2009 of $1.0 million. According to a Northwest Indian Fisheries Commission representative, the tribal fleet consists of 40 to 50 trollers. The commercial entities directly regulated by the Pacific Council's Fishery Management Plan are non-tribal commercial trollers, tribal commercial trollers, and charterboats. During 2010, these fleets consisted of 641 non-tribal trollers, 40 to 50 tribal trollers, and 465 charterboats.

Total West Coast income impact associated with recreational and commercial ocean salmon fisheries for all three states combined was estimated at $25.5 million in 2010. This was 46 percent above the estimated 2009 level of $17.4 million. 2010 had the third lowest income impacts on record, with 2008 having the lowest on record at $7.5 million and 2009 the second lowest (adjusted for inflation).

The key components of Amendment 16 are administrative, as they are revisions to the key components of the process by which the Council and NMFS make decisions on how best to manage various stocks in the fishery. These key components include defining what stocks are in the fishery; how these stocks may be organized into stock complexes, the treatment of international stocks, revising the stock status determination criteria including definitions of overfishing, ABC, and ACL reference points; and revising de minimis fishing provisions to allow for more flexibility in setting annual regulations when the conservation objectives for limiting stocks are projected not to be met, and provide opportunity to access more abundant salmon stocks that are typically available in the Council management area when the status of one stock may otherwise preclude all ocean salmon fishing in a large region. This action revises the process of how conservation and management decisions will be made; it contains no actual application of the methods to set ABC, ACL, or OFL or the management measures ( e.g. closed seasons, area closures, bag limits, etc. ) to keep the fishery within the ACL and other conservation objectives to assure that overfishing does not occur. As a result there are no immediate economic impacts to evaluate. These will occur when the new process is actually applied in future actions and the economic impacts will be evaluated then.

However, the EA did undertake an economic analysis of the expected effects of the preferred action and options relative to “No Action” alternative and presented the following conclusions. The proposed alternatives for classifying the stocks in the FMP will have no economic impacts, as there are no biological implications to designating stocks “in the fishery” and “ecosystem components,” as compared with the no action Alternative. Proposed alternatives for SDC have no significant biological or economic impacts. The stocks have had low frequency of experiencing overfishing in the past and many of the current control rules clearly prevent fishing at or above F MSY . It has been rare that stock abundance or other constraints on the fishery have created opportunity for fishing above F MSY in other cases. Identifying clearer criteria with which to determine stock status will more clearly align with the MSA and NS1Gs, and can help managers implement timelier management responses and contribute to ensuring sustainable salmon stock levels to support the fishery, resulting in positive economic effects. The proposed alternatives for implementing ACLs, ABCs, and associated reference points ( i.e., the ACL framework) are similar in nature to the effects of the proposed SDC, thus, have no significant biological or economic impacts. In the short term, fisheries may be constrained in a given year to prevent overfishing, but such actions will provide long-term benefits from more sustainable salmon populations to support harvest and recreational opportunities.

Proposed alternatives to identify AMs have no significant biological or economic impacts, compared to the no action alternative. Many of the proposed AMs identified are actions that exist in the FMP currently and are administrative in nature ( e.g., notification). Proposed alternatives for de minimis fishing are not expected to result in significant biological or economic effects. However, providing for de minimis fishing will afford more opportunities for harvest, consistent with National Standard 8, and achieve optimum yield for the fishery consistent with NS1. Therefore, there are projected positive economic benefits of the proposed action by allowing some minimal harvest of weaker stocks in an effort to harvest healthier, abundant stocks in the mixed stock fishery.

The commercial entities directly regulated by the Pacific Council's Fishery Salmon Management Plan are non-tribal commercial trollers, tribal commercial trollers, and charterboats. During 2010, these fleets consisted of 641 non-tribal trollers, 40 to 50 tribal trollers, and 465 charterboats. A fish-harvesting business is considered a “small” business by the Small Business Administration (SBA) if it has annual receipts not in excess of $4.0 million. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $6.5 million. All of the businesses that would be affected by this action are considered small businesses under SBA guidance. Tribal and non-tribal commercial salmon vessel revenues averaged approximately $13,000 in 2010 (Review of 2010 Ocean Salmon Fisheries). Charterboats participating in the recreational salmon fishery in 2000 had average revenues ranging from $7,000 to $131,000, depending on vessel size class (Pacific States Marine Fisheries Commission study). These figures remain low, and NMFS has no information suggesting that these vessels have received annual revenues since 2000 such that they should be considered “large” entities under the RFA. As these average revenues are far below SBA's thresholds for small entities, NMFS has determined that all of these entities are small entities under SBA's definitions.

The economic analysis does not highlight any significant impact upon small businesses. The key components of Amendment 16 are administrative, as they are revisions to the key components of the process by which the Council and NMFS make decisions on how best to manage various stocks in the fishery. As a result there are no immediate economic impacts to evaluate. These will occur when the new process is actually applied in future actions and the economic impacts will be evaluated then. Consequently, the regulations being proposed are not expected to meet any of the tests of having a “significant” economic impact on a “substantial number” of small entities. Nonetheless, NMFS has prepared an IRFA. Through the rulemaking process associated with this action, we are requesting comments on this conclusion.

This proposed rule would not establish any new reporting, record-keeping, requirements.

No Federal rules have been identified that duplicate, overlap, or conflict with this action.

NMFS has issued ESA biological opinions that address the impacts of the Council managed salmon fisheries on listed salmonids as follows: March 8, 1996 (Snake River spring/summer and fall Chinook and sockeye), April 28, 1999 (Oregon Coast natural coho, Southern Oregon/Northern California coastal coho, Central California coastal coho), April 28, 2000 (Central Valley spring Chinook), April 27, 2001 (Hood Canal summer chum 4(d) limit), April 30, 2004 (Puget Sound Chinook), June 13, 2005 (California coastal Chinook), April 28, 2008 (Lower Columbia River natural coho), and April 30, 2010 (Sacramento River winter Chinook, Lower Columbia River Chinook; and listed Puget Sound yelloweye rockfish, canary rockfish, and bocaccio). NMFS reiterates its consultation standards for all ESA listed salmon and steelhead species in their annual Guidance letter to the Council. In 2009, NMFS consulted on the effects of fishing under the Salmon FMP on the endangered Southern Resident Killer Whale Distinct Population Segment (SRKW) and concluded the salmon fisheries were not likely to jeopardize SRKW (biological opinion dated May 5, 2009).

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with Tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction. In addition, a Tribal representative served on the committee appointed by the Pacific Council to develop Amendment 16.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows: