In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) proposes to establish a new DHS system of records notice titled, “DHS/CBP-003 Credit/Debit Card Data System of Records.”

This system collects, uses, and maintains records related to any credit and debit card transactions with CBP. CBP is providing notice to the public regarding the collection, use, and dissemination of any credit and debit card transaction information provided to CBP. Many programs administered by CBP require an individual or business to provide payment for various purposes, including services, applications, fees, and duties, among others. As CBP expands methods of payment, many of these transactions will permit use of credit and debit cards, which will require the collection of the card data, disseminating that data to process the transaction, and maintaining the data for recordkeeping purposes. Information from this system will be shared with the Department of Treasury, banks, and credit and debit card processors as necessary. The data will not be used for law enforcement or intelligence purposes unless the individual's underlying transaction becomes associated with a law enforcement or intelligence action.

The purpose of this system is to provide payment processing and recordkeeping of credit and debit card transactions with CBP. Authority for maintenance of this system is given by The Homeland Security Act of 2002, Public Law 107-296; 5 U.S.C. 301; 8 U.S.C. 1101, et seq.; 19 U.S.C. 1, et seq.; Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), (Pub. L. 110-53); and the Travel Promotion Act (Pub. L. 111-145). This newly established system will allow CBP to collect credit and/or debit card payment information from individuals providing payment to CBP for services, applications, fees, duties, and other official activities. Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. All routine uses proposed are compatible with the purpose for which the information was collected and CBP's mission.

Consistent with DHS's information sharing mission, information stored in the Credit/Debit Card Data system of record may be shared with other DHS components, as well as appropriate Federal, State, local, foreign, or international or tribal government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice.

Additionally, the Department of Homeland Security is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act, concurrent with this system of records elsewhere in the Federal Register . DHS is not exempting any data in the system regarding an individual's credit or debit card transaction. This system, however, may contain records or information pertaining to the accounting of disclosures made from this system to other law enforcement or intelligence agencies (federal, state, local, foreign, international or tribal) in accordance with the published routine uses or statutory basis for disclosure under 5 U.S.C. 552a(b). For the accounting of these disclosures only, in accordance with 5 U.S.C. 552a(j)(2), and (k)(2), DHS will claim exemptions for these records or information.

The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.

The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.

DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/CBP-003 CDCDS System of Records. Some information in DHS/CBP-003 CDCDS System of Records relates to official DHS law enforcement and immigration activities; specifically, records or information pertaining to the accounting of disclosures made from this system to other law enforcement or intelligence agencies (Federal, state, local, foreign, international or tribal) in accordance with the published routine uses or statutory basis for disclosure under 5 U.S.C. 552a(b). These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes and to avoid disclosure of activity techniques. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.

A notice of system of records for DHS/CBP-0 CDCDS System of Records is also published in this issue of the Federal Register .

For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:

Section 939A(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Act), Public Law 111-203, requires Federal agencies, including DOE, to review (1) any regulation issued by such agency that requires the use of an assessment of the credit-worthiness of a security or money market instrument; and (2) any reference to or requirements in such regulations regarding credit ratings. Subsequent to such review, section 939A(b) requires Federal agencies to modify any such regulations to remove any references to or requirements of reliance on credit ratings and to substitute an appropriate standard of credit-worthiness. To the extent feasible, Federal agencies must seek to establish uniform standards of credit-worthiness, taking into account the regulated entities and the purposes for which such entities would rely on the established standard of credit-worthiness. Section 939A(c) also requires Federal agencies to submit a report to Congress describing any regulatory modifications at the conclusion of its review.

DOE submitted a report to Congress on July 20, 2011, describing the results of its review and the regulatory changes DOE was considering. These changes consist of revisions to DOE regulations implementing the loan guarantee program created by Title XVII of the Energy Policy Act of 2005 (10 CFR 609.6, 609.8 and 609.9) and its regulations implementing the standby support program for certain nuclear plant delays promulgated pursuant to section 638 of the Energy Policy Act of 2005 (10 CFR 950.10). In today's proposed rule, DOE proposes changes to these regulatory provisions to references to or requirements of reliance on credit ratings. DOE believes that the remaining provisions in both 10 CFR part 609 and 10 CFR part 950 provide an appropriate standard of creditworthiness for potential applicants and sponsors. DOE's Loan Programs Office currently conducts an internal risk analysis pursuant to its policies and procedures. This analysis is independent of any third-party rating and does not require the submission of a credit rating or credit assessment. For the standby support program, a potential sponsor would still be required to submit a detailed business plan that includes intended financing for the project including the credit structure and all sources and uses of funds for the project, and the projected cash flows for all debt obligations of the advanced nuclear facility which would be covered under the Standby Support Contract.

This proposed rule has been determined to be not significant for purposes of E.O. 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of a final regulatory flexibility analysis (FRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site ( www.gc.doe.gov).

DOE has reviewed today's proposed rule under the Regulatory Flexibility Act and certifies that, if adopted, the rule would not have a significant impact on a substantial number of small entities. DOE believes that it is unlikely that any entities wishing to contract with DOE to offer standby support for the specified nuclear plant delays under 10 CFR part 950 are considered small entities. The SBA considers a firm engaged in nuclear power generation (NAICS Code 221113) to be a small business if, including its affiliates, the firm is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. Because nuclear reactors cost on average $4-6 billion per reactor to construct and likely exceed the 4 million megawatt hours per year threshold, DOE believes that nuclear firms who would engage with DOE in standby support activities are not small entities. DOE recognizes that some applicants for assistance under 10 CFR part 609 may be small businesses according to SBA size standards. DOE believes, however, that the impact of the proposed rule on both nuclear standby support providers and applicants for assistance would not be significant. The proposed rule would delete from the regulations any requirements to provide a credit rating or other credit assessment to DOE as part of any application, which is expected to decrease the burden on applicants. In addition to reducing regulatory burden, this proposal would save nuclear standby support providers and applicants for assistance the cost of a credit rating, which is determined based on negotiations between the applicant and the rating agency.

This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden for submission of the required information for the Loan Guarantee Program is estimated to average 12 hours per response. These burden estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information for the Loan Guarantee Program to Alvin Leong at Alvin.leong@hq.doe.gov and Chad Whiteman at Chad_S._Whiteman@omb.eop.gov.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

In this proposed rule, DOE proposes to delete requirements to provide a credit rating or other credit assessment as part of an application for financial assistance or an application to enter into a conditional agreement to provide standby support for certain nuclear plant delays. DOE has determined that proposed change falls within the categorical exclusion found at paragraph A5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has considered today's proposed rule in accordance with EO 13132 and its policy and determined that this proposed rule, if adopted, would not preempt State law or have any federalism impacts. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. 61 FR 4729 (February 7, 1996). Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. For proposed regulatory actions likely to result in a rule that may cause expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires Federal agencies to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate.” In addition, UMRA requires an agency plan for giving notice and opportunity for timely input to small governments that may be affected before establishing a requirement that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. (This policy is also available at http://www.gc.doe.gov ). Today's proposed rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

DOE has concluded that today's regulatory action, which would delete requirements to provide a credit rating or other credit assessment as part of an application for financial assistance or an application to enter into a conditional agreement to provide standby support for certain nuclear plant delays, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects for the proposed rule.

On December 16, 2004, OMB, in consultation with the Office of Science and Technology (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. DOE has determined that today's proposed rule does not contain any influential or highly influential scientific information that would be subject to the peer review requirements of the OMB Bulletin.

The Secretary of Energy has approved publication of this proposed rule.

For the reasons stated in the preamble, DOE proposes to amend Part 609 of Chapter II and Part 950 of Chapter III of Title 10, Code of Federal Regulations, to read as set forth below:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1167; Directorate Identifier 2011-NM-058-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0210, dated October 21, 2010; corrected October 27, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Service Bulletin A320-25-1649, dated February 16, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 694 products of U.S. registry. We also estimate that it would take about 14 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $825,860, or $1,190 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption ADDRESSES . Include the docket number “FAA-2011-1188, Directorate Identifier 2008-SW-46-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Using the search function of our docket web site, you can find and read the comments to any of our dockets, including the name of the individual who sent or signed the comment. You may review the DOTs complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

You may examine the docket that contains the proposed AD, any comments, and other information on the internet at http://www.regulations.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located in Room W12-140 on the ground floor of the West Building at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On September 13, 1979, we issued AD 79-20-05, Docket No. 79-ASW-25, Amendment 39-3572 (44 FR 55556, September 27, 1979) for Bell Model 204B, 205A-1, and 212 helicopters. That AD requires an initial and repetitive inspection at 2,400-hour intervals and corrosion protection and sealing of the yoke, P/N 204-011-102, of the main rotor hub assembly (hub), P/N 204-012-101. We issued Amendment 39-3626, November 21, 1979 (44 FR 70123, December 6, 1979) and Amendment 39-3662 January 3, 1980 (45 FR 6922, January 31, 1980) to AD 79-20-05. The amendments to the AD deleted references to the radius in the bottom of the pillow block bushing holes because the cracks did not initiate there. The cracks originated in the side of the hole near the top or through the center section of the yoke adjacent to the data plate.

On August 26, 1981, we issued AD 81-19-01, Amendment 39-4207, Docket 81-ASW-38 (46 FR 45595, September 14, 1981) for Bell Model 212 series helicopters. We also issued AD 81-19-02, Amendment 39-4208, Docket 81-ASW-40 (46 FR 45595, September 14, 1981) for Bell Model 204 and 205 series helicopters. These ADs established a retirement life of 3,600 hours TIS for certain yokes installed on these model helicopters. These yokes previously did not have a retirement life. AD 81-19-01 also reduced the yoke retirement life below 3,600 hours TIS for those yokes installed on Model 212 helicopters used in external load operations involving more than four lifts per hour by requiring the operators to log additional hours for these type operations against the retirement life of the yoke. These ADs were prompted by three field reports of cracked yokes. These ADs were intended to establish retirement lives to prevent yoke failure and subsequent loss of control of the helicopter.

On March 4, 1993, we issued AD 93-05-01, Amendment 39-8507, Docket No. 92-ASW-13 (58 FR 13700, March 15, 1993), for the Bell Model 212 helicopters to require repetitive inspections of yoke, P/N 204-011-102 (all dash numbers). That action was prompted by 12 reports of cracking at the pillow block holes on yokes installed on Model 212 helicopters. That AD was intended to detect corrosion pitting and a crack in the pillow block bolt bushing holes of the yoke and to prevent failure of the main rotor system and subsequent loss of control of the helicopter.

After issuing ADs 79-20-05, 81-19-01, and 81-19-02, Bell has introduced a replacement stainless steel yoke, P/N 212-011-102. Bell issued Alert Service Bulletins (ASBs) Nos. 204-92-36, 205-92-51, and 212-92-80, all dated October 23, 1992. The ASBs specify replacing the yoke, P/N 204-011-102 (all dash numbers), by December 31, 1993. These ASBs also specify replacing the yoke with yoke, P/N 212-011-102-105 or -109, depending on the helicopter configuration. The replacement stainless steel yokes have improved design characteristics addressing the corrosion problems and are not subject to any heavy lift cycle counting required for previous yokes installed on the Model 205B and 212 helicopters.

The FAA also issued PMAs to Air Services International (ASI) for yokes, P/N ASI-4011-102, and to Arizona Aeroparts International (AAI) for yokes, P/N AAI-4011-102, both based on identicality with the Bell-manufactured yoke, P/N 204-011-102. The yokes manufactured under the PMAs are eligible for installation on Bell Model 204B, 205A, 205A-1, and 212 helicopters.

Transport Canada recently contacted the FAA about a PMA yoke, P/N AAI-4011-102-125, manufactured by AAI. A Canadian operator reported this part was no longer supported by the PMA-manufacturer. The Canadian operator was trying to determine if the inspections in the existing ADs applicable to the Bell yoke, P/N 204-011-102, needed to be performed on the PMA-manufactured yokes as well. Both of these PMA companies have gone out of business. There is no longer an FAA-approved PMA holder for these PMA yokes. This results in no continued operational safety oversight of the PMA parts by the manufacturer that produced the parts that were sold to operators. Because the PMA yokes are identical to the Bell parts, these yokes are susceptible to the same cracking conditions found in the same Bell part-numbered yokes.

This AD action proposes to give operators credit for the accumulated operating time on yokes, P/N 204-011-102 (all dash numbers), previously determined and recorded by following ADs 81-19-01 or 81-19-02; or the applicable Bell Model 204B, 205A-1, 205B, or 212 maintenance manuals, which results in equal or higher accumulated factored hours TIS. However, these values must be included for previously accumulated service time in the calculations of the accumulated total factored hours TIS. Any additional factored hours TIS would be determined for each yoke using the hours TIS factors in the proposed AD.

This proposal is prompted by the need to expand the applicability to include yokes produced under a PMA whose design approval was based on identicality with the affected Bell yoke parts and also a recent discovery of a cracked yoke on a Bell Model 212 helicopter.

The previously described unsafe condition is likely to exist or develop on other helicopters of these same type designs. We estimate 25 to 30 of the yokes manufactured under a PMA may still be installed on helicopters operating in the U.S. Therefore, the proposed AD would supersede the previously issued ADs and would require:

• For helicopters with yoke, P/N AAI-4011-102 (all dash numbers) and ASI-4011-102 (all dash numbers), installed, within 100 hours TIS, unless accomplished previously, creating a component history card or equivalent record for each yoke; determining the model for each helicopter on which the yoke has been installed from the time the yoke had zero hours TIS; calculating the factored hours TIS for each type of operation and rate of external load lifts and takeoffs for each hour TIS accumulated on each yoke; and recording the accumulated total factored hours TIS on the component history card or equivalent record for each yoke. Continuing to factor the hours TIS for each yoke and recording the additional factored hours TIS on the component history card or equivalent record. Tracking these factored hours TIS is only for the purpose of establishing a retirement life and not to be counted against the hours TIS used to track inspection intervals.

• For helicopters with yoke, P/N 204-011-102 (all dash numbers), installed, before further flight, unless accomplished previously:

○ Calculating the total factored hours TIS on the yoke for hours TIS accumulated before the effective date of this AD using the same requirements as ADs 81-19-01 and 81-19-02, which establishes the starting point for the new factoring of hours TIS contained in this AD.

○ Calculating and recording the factored hours TIS on the yoke for hours TIS accumulated after the effective date of this AD using the same requirements as used for calculating the total factored hours TIS in this AD for yokes, P/N AAI-4011-102 (all dash numbers) and ASI-4011-102 (all dash numbers).

• Revising the Airworthiness Limitations section of the applicable maintenance manuals or the Instructions for Continued Airworthiness (ICAs) by establishing or continuing a retirement life of 3,600 Total Factored Hours TIS for each yoke.

• Recording a life limit of 3,600 Total Factored Hours TIS for each yoke on the component history card or equivalent record.

• Within 100 hours TIS or 600 hours TIS since the last magnetic particle inspection (MPI) of the yoke, whichever occurs later, and thereafter at intervals not to exceed 600 hours TIS, for any yoke installed on any Model 205B or 212 helicopter:

○ Removing the yoke from the hub. Using a 5-power or higher magnifying glass, visually inspecting each pillow block bushing hole, spindle radius, and center section web for any corrosion or mechanical damage.

○ Performing an MPI of each yoke for a crack.

• Within 100 hours TIS or 2,400 hours TIS since the last MPI of the yoke, whichever occurs later, and thereafter at intervals not to exceed 2,400 hours TIS, for any yoke installed on any Model 204B, 205A, or 205A-1 helicopter:

○ Removing the yoke from the hub. Using a 5-power or higher magnifying glass, visually inspect each pillow block bushing hole, spindle radius, and center section web for any corrosion or mechanical damage.

○ Performing an MPI of each yoke for a crack.

• Before further flight, replacing each yoke with an airworthy yoke if:

○ The yoke has 3,600 or more Total Factored Hours TIS;

○ The Total Factored Hours TIS for the yoke is unknown and cannot be determined;

○ The yoke has any corrosion or mechanical damage that exceeds any of the maximum repair damage limits; or

○ The yoke has a crack.

We estimate that this proposed AD would affect about 15 helicopters of U.S. registry and would take about:

• 3 work hours to review the helicopter records and determine the total factored hours TIS (the cost of tracking the total factored flight hours will be negligible),

• 35 work hours to remove the yoke from the helicopter and do a visual inspection and MPI, and

• 32 work hours to replace a yoke, at an average labor rate of $85 per work hour per helicopter.

• Required parts would cost about $40,157 per helicopter.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. Additionally, this proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a draft economic evaluation of the estimated costs to comply with this proposed AD. See the AD docket to examine the draft economic evaluation.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1212; Directorate Identifier 2011-CE-034-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We received two reports of partial loss of engine power due to dislodged rubber gaskets/seals being ingested into one of the two turbochargers. The gasket/seal is located between the air-box mounting base and the turbochargers. Once the gasket/seal is ingested into a turbocharger the engine will experience a partial loss of power as the turbocharger fails to perform its function. A complete loss of power could occur if metal debris from the failing turbocharger migrates into the engine oil system and damages other engine components. Examination by Cirrus of other Cirrus Model SR22T airplanes showed early evidence of the gasket/seal starting to dislodge on at least one other airplane.

This condition, if not corrected, could result in engine failure.

We reviewed Cirrus Design Corporation SR22T Service Bulletin SB 2X-71-17 R1, dated September 30, 2011. The service information describes procedures for replacement of the air box seals.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require inspection and modification of the air box flange welds and slots and installation of air box seals and adhesive with materials better suited for the high-temperature environment encountered in close proximity to the turbocharger.

We estimate that this proposed AD affects 67 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

According to the manufacturer, all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1166; Directorate Identifier 2010-NM-169-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0080, dated April 29, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alaska program on March 23, 1983. You can find background information on the Alaska program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Alaska program in the March 23, 1983, Federal Register (48 FR 12274). You can also find later actions concerning Alaska's program and program amendments at 30 CFR 902.15 and 902.16.

By letter dated September 8, 2011, Alaska sent us a proposed amendment to its program (Administrative Record Document ID No. OSM-2011-0017 under SMCRA (30 U.S.C. 1201 et seq. ). Alaska sent the amendment to include changes made at its own initiative and in response to the required program amendment at 30 CFR 902.16(a)(14). The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES .

The provisions of the Alaska program that Alaska proposes to revise are: 11 Alaska Annotated Code (AAC) 90.043(b), concerning water quality analyses; 11 AAC 90.045(a), (b), (c), and (d), concerning description of geology; 11 AAC 90.057(a), (b), and (c), concerning fish and wildlife information; 11 AAC 90.085(a) and (e), concerning a plan for protection of hydrologic balance; 11 AAC 90.089(a)(1), concerning construction plans for ponds, impoundments, dams, and embankments; 11 AAC 90.101(a) through (f), concerning a subsidence control plan and the definition of material damage; 11 AAC 90.173(b), concerning eligibility for assistance under the small operator assistance program; 11 AAC 90.179(a) and (b), concerning data collection that would be covered by the small operator assistance program; 11 AAC 90.185(a), concerning applicant liability under the small operator assistance program; 11 AAC 90.201(d), concerning the requirement to file a reclamation bond; 11 AAC 90.211(a), concerning bond release procedures and criteria; 11 AAC 90.321(d), (e), and (f), concerning replacement of water supplies affected by underground mining activities; 11 AAC 90.323(a), concerning water quality standards; 11 AAC 90.323(b), concerning sediment control measures; 11 AAC 90.325(b) and (c) and 11 AAC 90.327(b), concerning stream channel diversions; 11 AAC 90.331(d), concerning sedimentation ponds; 11 AAC 90.331(e), concerning removal of siltation structures; 11 AAC 90.331(h), concerning the design of other treatment facilities; 11 AAC 90.336(a), (b), (f), and (g), concerning impoundment design and construction; 11 AAC 90.337(a), concerning impoundment inspection; 11 AAC 90.345(e), concerning requirements for surface water monitoring; 11 AAC 90.349, concerning discharges of water or coal mine waste into an underground mine working; 11 AAC 90.375(f) and (g), concerning public notice of blasting; 11 AAC 90.391(n) and (t), concerning disposal of excess spoil or coal mine waste; 11 AAC 90.395(a), concerning general requirements for coal mine waste; 11 AAC 90.397(a), concerning inspections of disposal areas for excess spoil, underground development waste or coal processing waste; 11 AAC 90.401(a), (b), (d), (e), and (f), concerning construction plans for coal mine waste refuse piles; 11 AAC 90.407(c) and (f), concerning coal mine waste dams or embankments; 11 AAC 90.423(h), concerning protection of fish and wildlife; 11 AAC 90.443(a), (k), (l), and (m), concerning requirements for backfilling and grading; 11 AAC 90.444(a) and (b), concerning requirements for backfilling and grading where there is thick or thin overburden; 11 AAC 90.447(c), concerning requirements for auger mining; 11 AAC 90.457(c), concerning standards for revegetation success on areas to be developed for fish and wildlife habitat, recreation, undeveloped land, or forest products; 11 AAC 90.461(b), (g), (h), (i), (j), (k), and (l), concerning subsidence control; 11 AAC 90.491(f), concerning the requirements for construction and maintenance of roads; 11 AAC 90.601(h), (i) and (j), concerning inspections of abandoned sites; 11 AAC 90.629(a), concerning procedures for assessment conference; 11 AAC 90.631(a), concerning violations and requests for a public hearing; 11 AAC 90.635(a) and (b), concerning when an individual civil penalty may be assessed; 11 AAC 90.637(a) and (b), concerning the amount of individual civil penalty; 11 AAC 90.639(a), (b), and (c), concerning procedures for assessment of an individual civil penalty; 11 AAC 90.641(a), (b), (c), and (d), concerning payments of an individual civil penalty; 11 AAC 90.652 through 11 AAC 90.669, concerning requirements for incidental mining of coal; 11 AAC 90.701(a), (b), and (c), concerning the filing of a petition to designate lands as unsuitable for surface coal mining operations; 11 AAC 90.901(a), concerning the applicability of Alaska's rules to all coal exploration and surface coal mining and reclamation operations; 11 AAC 90.911(125), concerning the definition of “community or institutional building;” 11 AAC 90.911(126), concerning the definition of “cumulative impact area;” 11 AAC 90.911(128), concerning the definition of “other minerals;” 11 AAC 90.911(129), concerning the definition of “other treatment facility;” 11 AAC 90.911(130), concerning the definition of “precipitation event;” 11 AAC 90.911(133), concerning the definition of “registered professional engineer;” 11 AAC 90.911(134), concerning the definition of “registered professional land surveyor;” and 11 AAC 90.911(135), concerning the definition of “siltation structure.”

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Alaska program.

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed above (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available in the electronic docket for this rulemaking at www.regulations.gov . While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on November 17, 2011. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public; if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated April 25, 2011, and received by OSM on May 2, 2011 (Administrative Record Number WV-1561), the WVDEP submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The proposed amendment consists of both statutory and regulatory revisions. However, this notice only addresses that portion of the amendment that concerns revisions to West Virginia's Surface Mining Reclamation Regulations at Code of State Regulations (CSR) Title 38, Series 2.

Enrolled Committee Substitute for Senate Bill No. 121 (SB 121) passed the West Virginia Legislature on March 18, 2011, and was signed by the Governor on March 30, 2011. SB 121 authorized WVDEP to promulgate several revisions to its Surface Mining Reclamation Regulations. SB 121 authorizes regulatory revisions which codifies an Emergency Rule filed on December 2009 which relates to trust funds and annuities; clarifies the format and information necessary for complete application submittal and clarification on the renewal process to take into account WVDEP's electronic permit filing processes; modifies the provision that an approved person must be capable and maintain the capability of submitting maps, plans and all other technical data in an electronic format proscribed by the Secretary; modifies the provision that pre-subsidence surveys shall be confidential and only used for evaluating damage relating to subsidence; clarifies that bonding for a permit in inactive status shall remain in effect for the life of the operation; and modifies the provision that the Secretary shall provide email notice of the issuance of a show cause order to members of the public who have subscribed to the Secretary's email notification service and otherwise provide notice to any person whose citizen complaint has resulted in the issuance of any violation that led to the issuance of a show cause order.

The State proposes adding the words “if available” before “MSHA number” to require the submission of the MSHA number by the applicant if it is available. This proposed State revision falls under the Federal provisions at 30 CFR 778.12(c) and sections 507, 508, 510, and 515 of SMCRA.

The State is proposing to add the language “either in the application or in an electronic database accessible to the agency which has been updated within three months of submittal” after the word “List” to indicate the kinds of ownership or control information that is to be included in the permit application. This proposed State revision falls under the Federal provisions at 30 CFR 778.12 and sections 507, 508, 510, and 515 of SMCRA.

The State is proposing to add the language “either in the application or in an electronic database accessible to the agency which has been updated within three months of submittal” after “List” to indicate the kinds of violation information that is to be included in the permit application. This proposed State revision falls under the Federal provisions at 30 CFR 778.12 and 778.14 and sections 507, 508, 510, and 515 of SMCRA.

The State is proposing to add the word “technically” and removing the word “administratively” before “complete” to indicate that a permit application must be technically complete, not administratively complete, to begin the advertisement. This proposed State revision falls under the Federal provisions at 30 CFR 773.6 and sections 506, 507, and 513 of SMCRA.

The State is proposing to add the language “in a format proscribed by the Secretary and either be” on paper 30 by 42 inches after the word “submitted” and “or, if electronic, be capable of being printed on paper of this size.” after the word “less” to allow for the submission of paper or electronic maps in a format prescribed by the Secretary. This proposed State revision falls under the Federal provisions at 30 CFR 779.24 and 783.24 and sections 506 and 507 of SMCRA.

The State is proposing to add new language in this subsection that will provide “All surveys” of the condition of all non-commercial buildings or residential dwellings and structures related thereto “shall be confidential and only used for evaluating damage relating to subsidence. The Secretary shall develop a procedure for assuring surveys shall remain confidential.” This proposed State revision falls under the Federal provisions at 30 CFR 784.20 and sections 507(a), 508(a), 510(b), 515(b), and 516 of SMCRA.

Throughout the regulations the words “licensed land” have been deleted and the word “professional” added before “surveyor” to clarify that surveyors certified and licensed in West Virginia are considered to be professional surveyors. The proposed State revisions fall under the Federal provisions at 30 CFR 780.14(c), 780.25, 780.37, 784.23, 784.16, 784.24, 816/817.46(b), 816/817.49(a)(11), and 816/817.151 and sections 507(b)(14) and 515(b)(10)(B)(ii) of SMCRA.

The State is proposing to add new language at the end of the paragraph to read: “Furthermore, any person seeking an approval must be capable and maintain the capability of submitting maps, plans and all other technical data in an electronic format proscribed by the Secretary.” Although there are no specific Federal requirements governing approved persons, these proposed revisions fall under the provisions at 30 CFR 780.14(c) and sections 507(b)(14) and 515(b)(10)(B)(ii) of SMCRA.

All of subsection 11.3.f is new and can be viewed in its entirety at http://www.regulations.gov. Under the proposed rule, a permittee, with the approval of the Secretary, may establish a trust fund, annuity or both to guarantee treatment of long-term postmining pollutional discharges in lieu of posting a bond. The trust fund or annuity will be subject to certain conditions. The proposed revisions fall under the Federal provisions at 30 CFR 800.4, 800.11, 800.13, 800.14, 800.16, and 800.17, and sections 509 and 519 of SMCRA.

Under the proposed rule, the Secretary may grant inactive status for a term longer than those set forth currently in (e), (f), and now (g). This will allow the Secretary to grant inactive status for coal refuse sites to exceed a period of 10 years. New language is also being added to provide that “Bonding in this manner shall remain in effect for the life of the operation.” This will require the permittee of an operation that receives inactive status approval to furnish and maintain a full-cost reclamation bond for the life of the operation. These proposed revisions fall under the Federal provisions at 30 CFR 816 and 817.131 and sections 509, 510, and 515 of SMCRA.

The State is proposing to add new language to provide that “The Secretary shall provide email notice of the issuance of a show cause order to members of the public who have subscribed to the Secretary's email notification service and otherwise provide notice to any person whose citizen's complaint has resulted in the issuance of any violation that led to the issuance of the show cause order.” This is to ensure that citizens who subscribe to the Secretary's email notification system get notified of all show cause orders, and any citizen whose complaint resulted in an enforcement action that led to a show cause notice is also notified. These proposed revisions fall under the Federal provisions at 30 CFR 843.14 and sections 521, 525, and 526 of SMCRA.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the West Virginia program.

Send your written comments to OSM at one of the addresses given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ) or sent to an address other than those listed above (see ADDRESSES ).

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on November 17, 2011. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If there is limited interest in participation in a public hearing, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the Administrative Record.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

The following is provided to aid in locating information in this preamble.

EPA is proposing to approve Pennsylvania's SIP submission, which was submitted by the Pennsylvania Department of Environmental Protection (PADEP) to EPA on April 12, 2010 to demonstrate attainment of the 1997 annual PM 2.5 NAAQS for the Pennsylvania portion of the Philadelphia area (herein called the state's “PM 2.5 attainment plan”). This PM 2.5 attainment plan includes Pennsylvania's attainment demonstration and MVEBs used for transportation conformity purposes. The attainment demonstration includes a base year emissions inventory, an analysis of RACM/RACT, and contingency measures. RFP plan is not required because the Pennsylvania portion of the Philadelphia area demonstrated that attainment of the 1997 annual PM 2.5 NAAQS occurred by the attainment date, April 2010.

EPA has determined that the Pennsylvania's PM 2.5 attainment plan meets the applicable requirements of the CAA, as described in the PM 2.5 Implementation Rule issued by EPA on April 25, 2007 (72 FR 20586). EPA's analysis and findings are discussed in this proposed rulemaking. In addition, technical support documents (TSDs) for this proposal are available online at www.regulations.gov , Docket No. EPA-R03-OAR-2010-0391. These TSDs provide additional explanation on EPA's analysis supporting this proposal.

On July 18, 1997 (62 FR 36852), EPA established the 1997 PM 2.5 NAAQS, including an annual standard of 15.0 micrograms per cubic meter (µg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations and a 24-hour (or daily) standard of 65 µg/m 3 based on a 3-year average of the 98th percentile of 24-hour concentrations. EPA established these standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to PM 2.5 .

Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. In 1999, EPA and State Air Quality Agencies initiated the monitoring process for the 1997 PM 2.5 NAAQS and by January 2001, established a complete set of air quality monitors. On January 5, 2005 (70 FR 944), EPA promulgated initial air quality designations for the 1997 PM 2.5 NAAQS, which became effective on April 5, 2005, based on air quality monitoring data for calendar years 2001-2003.

On April 14, 2005 (70 FR 19844), EPA promulgated a supplemental rule amending the Agency's initial designations, with the same effective date (April 5, 2005) as 70 FR 944. As a result of this supplemental rule, PM 2.5 nonattainment designations are in effect for 39 areas, comprising 208 counties within 20 states (and the District of Columbia) nationwide, with a combined population of about 88 million. The Pennsylvania portion of the Philadelphia area, which is the subject of this rulemaking, is included in the list of areas not attaining the 1997 annual PM 2.5 NAAQS. The Pennsylvania portion of the Philadelphia area consists of the following counties: Bucks, Chester, Delaware, Montgomery, and Philadelphia.

It should be noted that on November 13, 2009 (74 FR 58688), EPA revised the existing designation tables in 40 CFR part 81.339 to clarify that the 1997 designations were for both the annual PM 2.5 NAAQS and the 24-hour PM 2.5 NAAQS. The Pennsylvania portion of the Philadelphia area was designated unclassifiable/attainment for the 24-hour PM 2.5 NAAQS.

On April 25, 2007 (72 FR 20586), EPA issued the PM 2.5 Implementation Rule for the 1997 PM 2.5 NAAQS. The “PM 2.5 Implementation Rule” describes the CAA framework and requirements for developing SIPs for areas designated nonattainment for the 1997 PM 2.5 NAAQS. An attainment plan must include a demonstration that a nonattainment area will meet the applicable NAAQS within the timeframe provided in the statute. This demonstration must include modeling (40 CFR 51.1007) that is performed in accordance with EPA modeling guidance (EPA-454/B-07-002, April 2007). It must also include supporting technical analyses and descriptions of all relevant adopted Federal, State, and local regulations and control measures that have been adopted in order to provide attainment of the 1997 PM 2.5 NAAQS by the proposed attainment date.

For the 1997 PM 2.5 NAAQS, an attainment plan must show that a nonattainment area will attain the 1997 PM 2.5 NAAQS as expeditiously as practicable, but within five years of designation (i.e. attainment date of April 2010 based on air quality data for 2007 through 2009). If the area is not expected to meet the NAAQS by April 2010, a state may request to extend the attainment date by one to five years based on the severity of the nonattainment problem or the feasibility of implementing control measures (CAA section 172(a)(2)) in the specific area. For EPA to approve an extension of the attainment date beyond 2010, the state must provide an analysis to support the request and demonstrate that the attainment date is as expeditious as practicable for the area given the facts and circumstances of the area and consistent with the statutory criteria for an extension.

For each nonattainment area, the state must demonstrate that it has adopted all RACM, including all RACT for the appropriate emissions sources, needed to provide for attainment of the PM 2.5 standards in the specific nonattainment area “as expeditiously as practicable.” The PM 2.5 Implementation Rule provided guidance for making these RACM/RACT determinations ( See, Section IV.A.4 below). Any measures that are necessary to meet these requirements that are not already Federally promulgated or in an EPA-approved part of the state's SIP must be submitted as part of a state's attainment demonstration. Any state measures must meet the applicable statutory and regulatory requirements, and in particular, must be Federally enforceable.

The PM 2.5 Implementation Rule also included guidance on pollutants that states must address in their attainment plans. The CAA (section 302(g)) authorizes EPA to regulate criteria pollutants and their precursors. In the case of PM 2.5 , the main chemical precursors are sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), ammonia (NH 3 ), and volatile organic compounds (VOCs). The effect of reducing emissions of precursor pollutants that contribute to PM 2.5 concentrations varies by area, however, depending on PM 2.5 composition, emission levels, and other area-specific factors. For this reason, the PM 2.5 Implementation Rule provided guidance recommending that states elect direct PM 2.5 emissions and the precursor that would be most effective for attaining the NAAQS within the specific area, based upon an appropriate technical demonstration.

In accordance with the PM 2.5 Implementation Rule, direct PM 2.5 emissions means “solid particles emitted directly from an air emissions source or activity, or gaseous emissions or liquid droplets from an air emissions source or activity which condense to form particulate matter at ambient temperatures. Direct PM 2.5 emissions include elemental carbon, directly emitted organic carbon (OC), directly emitted sulfate (SO 4 ), directly emitted nitrate (NO 3 ), and other inorganic particles (including but not limited to crustal material, metals, and sea salt).”

The PM 2.5 Implementation Rule requires all states to address SO 2 as a PM 2.5 attainment plan precursor and to evaluate SO 2 for possible control measures in all PM 2.5 nonattainment areas. States are required to address NO X as a PM 2.5 attainment plan precursor and evaluate reasonable controls for NO X in all PM 2.5 attainment plans, unless the state and EPA make a finding that NO X emissions from sources in the state do not significantly contribute to PM 2.5 concentrations in the relevant nonattainment area.

Although current scientific information shows that certain VOC emissions are precursors to the formation of secondary organic aerosol, and significant progress has been made in understanding the role of gaseous organic material in the formation of organic particular matter (PM), this relationship remains complex. Further research and technical tools are needed to better characterize emissions inventories for specific VOC compounds and to determine the extent of the contribution of specific VOC compounds to organic PM mass. Because of these factors, the PM 2.5 Implementation Rule did not require states to address VOCs as PM 2.5 attainment plan precursors and evaluate them for control measures, unless the state or EPA makes a finding that VOCs significantly contribute to a PM 2.5 nonattainment problem in the specific area or to other downwind air quality concerns.

The PM 2.5 Implementation Rule also describes the formation of particles related to NH 3 emissions, which is a complex, nonlinear process. Though recent studies have improved our understanding of the role of NH 3 in aerosol formation, ongoing research is needed to better describe the relationships between NH 3 emissions, PM concentrations, and related impacts. Also, area-specific data is needed to evaluate the effectiveness of reducing NH 3 emissions on reducing PM 2.5 concentrations in different areas, and to determine where NH 3 decreases may increase the acidity of particles and precipitation. For these reasons, in the PM 2.5 Implementation Rule, NH 3 is presumed not to be a PM 2.5 attainment plan precursor, meaning that the state is not required to address NH 3 in its attainment plan or evaluate sources of NH 3 emissions for reduction measures, unless the state or EPA makes a finding that NH 3 significantly contributes to a PM 2.5 nonattainment problem in the area or to other downwind air quality concerns.

The presumptive inclusion of NO X , and the presumptive exclusion of VOC and NH 3 as attainment plan precursors can be reversed based on an acceptable technical demonstration for a particular nonattainment area by the state or EPA. Such a demonstration should include information from multiple sources, including results of speciation data analyses, air quality modeling studies, chemical tracer studies, emission inventories, or special intensive measurement studies to evaluate specific atmospheric chemistry in an area ( See, the PM 2.5 Implementation Rule for more information).

The PM 2.5 Implementation Rule also provided guidance for the other elements of a state's attainment plan, including, but not limited to, emission inventories, contingency measures, and MVEBs used for transportation conformity purposes.

There are, however, three aspects of the PM 2.5 Implementation Rule for which EPA received petitions requesting reconsideration. These pertain to the presumption or advance determination that compliance with the requirements of the Clean Air Interstate Rule (CAIR) automatically satisfies the requirements for RACT or RACM for NO X or SO 2 emissions from electric generating unit (EGU) sources participating in regional cap and trade programs; the suggestion in the preamble that the economic feasibility element of a RACT determination for EGUs should include consideration of whether the cost of a measure is reasonable in light of the benefits; and the policy described in the preamble of allowing certain emissions reductions from outside the nonattainment area to be credited as meeting the RFP requirement. EPA is granting these petitions and intends to undertake rulemaking to change these aspects of the PM 2.5 Implementation Rule. The attainment plan for the Pennsylvania portion of the Philadelphia area did not rely on any of these aspects of the rule.

The data in Table 1 indicates that the Pennsylvania portion of the Philadelphia area is meeting the 1997 annual PM 2.5 NAAQS. In addition, Table 2 shows that the Philadelphia area continues to attain the 1997 annual PM 2.5 NAAQS by 2010. More detailed information can be found in the TSD entitled, “Technical Support Document for the Modeling Portion of the Commonwealth of Pennsylvania's Fine Particulate Matter State Implementation Plan,” dated October 11, 2011, available on line at www.regulations.gov , Docket No. EPA-R03-OAR-2010-0391. However, this action does not determine that the Pennsylvania portion of the Philadelphia area has attained the 1997 annual PM 2.5 NAAQS and the information is included here only to support Pennsylvania's demonstration that the Pennsylvania portion of the Philadelphia area could meet the attainment date of April 5, 2010, and continues to attain based on the most recent data available. EPA plans to take action to formally determine the Pennsylvania portion of the Philadelphia area's attainment of the 1997 annual PM 2.5 NAAQS in a separate action.

In accordance with section 172(c) of the CAA and the PM 2.5 Implementation Rule, the attainment plan submitted on April 12, 2010 by PADEP for the Pennsylvania portion of the Philadelphia area included: (1) An emissions inventory for the plan's base year (2002); (2) an attainment demonstration; and (3) MVEBs for the attainment year. The attainment demonstration includes: (a) Technical analyses that locate, identify, and quantify sources of emissions contributing to violations of the 1997 annual PM 2.5 NAAQS; (b) analyses of future year emissions reductions and air quality improvements expected to result from national and local programs from new measures to meet RACM/RACT; (c) adopted emission reduction measures with schedules for implementation; and (d) contingency measures for NO X and SO 2 to be implemented if the area did not meet RFP or did not attain the standard by the attainment date.

To analyze future year emissions reductions and air quality improvements, Pennsylvania used local, regional, and national modeling analyses that have been developed to support Federal and local emission reduction programs. This modeling was performed in accordance with EPA's “Guidance on the Use of Models and Other Analyses for Determining Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze” (EPA-454/B-07-002, April 2007).

In accordance with policies described in the PM 2.5 Implementation Rule, Pennsylvania's PM 2.5 attainment plan evaluates emissions of direct PM 2.5 , SO 2 , and NO X in the Pennsylvania portion of the Philadelphia area. Because of uncertainties regarding NH 3 emission inventories and the efficacy of ammonia control technologies as noted earlier in this notice, the final rule sets forth the presumption that NH 3 is not a PM 2.5 precursor and that the states are not required to address NH 3 in their attainment plan. Similarly, VOC emissions are presumed not to be an attainment plan precursor because of uncertainties regarding the role of VOC in secondary organic aerosol formation. Pennsylvania's attainment plan does not reverse this presumption.

States are required under section 172(c)(3) of the CAA to develop emissions inventories of point, area, onroad mobile, and nonroad mobile sources for their attainment demonstrations. These inventories provide a detailed accounting of all emissions and emission sources by precursor or pollutant. In addition, inventories are used to model air quality to demonstrate that attainment of the 1997 PM 2.5 NAAQS as expeditiously as practicable, and if an attainment extension beyond 2010 is needed to support the need for such an extension. Emissions inventory guidance was provided in the April 1999 document “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter NAAQS and Regional Haze Regulations” (EPA-454/R-99-006), which was updated in November 2005 (EPA-454/R-05-001). Emissions reporting requirements were provided in the 2002 Consolidated Emissions Reporting Rule (CERR) (67 FR 39602). On December 17, 2008 (73 FR 76539), EPA promulgated the Air Emissions Reporting Requirements (AERR) to update emissions reporting requirements in the CERR, and to harmonize, consolidate and simplify data reporting by states.

In accordance with the AERR and the November 2005 guidance, the PM 2.5 Implementation Rule required states to submit inventory information on directly emitted PM 2.5 and PM 2.5 precursors and any additional inventory information needed to support an attainment demonstration.

The SIP base year inventory is the primary inventory from which other inventories (3-year cycle inventories, RFP inventories, modeling inventories) are derived. The CAA calls for state, local, and tribal agencies to ensure that the base year inventory is comprehensive, accurate, and current for all actual emissions (EPA-454/R-05-001). The base year inventory includes emissions estimates from stationary point and nonpoint sources, onroad mobile sources, and nonroad mobile sources. For the PM 2.5 NAAQS, the pollutants to be inventoried are primary emissions (including condensables) of PM 10 and PM 2.5 , and emissions of SO 2 , NH 3 , VOC, and NO X , and are reported as actual annual weekday emissions. The State Air Agencies defined 2002 as the base year inventory. The pollutants inventoried for the Pennsylvania portion of Philadelphia area included PM 10 , PM 2.5 , SO 2 , NH 3 , VOC, and NO X . Information on the manmade sources of direct PM and its potential precursors, SO 2 , NH 3 , VOC, and NO X was compiled for:

Stationary sources (or point sources), which are sources for which PADEP collects individual emissions-related information, generally represent major stationary sources but may be smaller. The point source data for 2002 is derived from the Air Information Management System/environment, Facility, Application, Compliance Tracking System (AIMS/eFACTS). The AIMS/eFACTS database is comprised of sources identified and inventoried by PADEP's regional and central offices through permitting, field inspections, and surveys.

Area sources, which are industrial, commercial, and residential sources too small or too numerous to be handled individually, include, but are not limited, to commercial and residential open burning, architectural and industrial maintenance coatings applications and clean-up, consumer product use, and vehicle refueling at service stations. Where there is overlap between stationary point sources and stationary area sources, the area source values are adjusted to remove any double counting. PADEP's inventory contained estimations of emissions by multiplying an emission factor by an indicator or activity level for each category at the county level. These emissions are calculated on an annual basis since the activity data are generally available on an annual basis. Area source estimates were provided by source classification code (SCC).

Highway vehicles, which include passenger cars and light-duty trucks, other trucks, buses, and motorcycles, are onroad mobile source emissions inventory that was developed using the most current version of EPA's highway mobile source emissions model MOBILE6.2. PADEP also used PPSUITE, an enhanced version of the Post Processor for Air Quality software systems used for previous inventory submissions in Pennsylvania. The Pennsylvania Department of Transportation (PennDOT) provided estimates of vehicles miles traveled (VMT) by vehicle type and roadway type. PADEP provided sample MOBILE6.2 input files and estimates for review.

Nonroad sources, which encompass a diverse collection of engines, including, but not limited to, outdoor power equipment, recreational vehicles, farm and construction machinery, lawn and garden equipment, industrial equipment, recreational marine vessels, commercial marine vessels, locomotives, ships, and aircraft were estimated using the EPA NONROAD 2005 model.

The emissions inventory for the base year, 2002, was developed in accordance with EPA guidance, “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards and Regional Haze Regulations, EPA-454/R-05-001, August 2005, updated November 2005.” Table 3 summarizes the emissions for 2002.

The review and evaluation of the methods used for the emissions inventory submitted by Pennsylvania are found in the attainment plan submittal (section III) and a TSD entitled “Technical Support Document for the Pennsylvania portion of the Philadelphia-Wilmington, PA-NJ-DE PM 2.5 Noanattainment Area: State Implementation Plan Attainment Demonstration and Base Year Inventory,” dated October 11, 2011, available on line at www.regulations.gov, Docket No. EPA-R03-OAR-2010-0391. EPA is proposing to approve the 2002 base year emissions inventory for the Pennsylvania portion of the Philadelphia area as meeting the requirements of section 172(c)(3) of the CAA.

PM 2.5 is comprised of filterable and condensable emissions. Condensable particulate matter (CPM) can comprise a significant percentage of direct PM 2.5 emissions from certain sources, and are required to be included in national emission inventories based on emission factors. Test Methods 201A and 202 are available for source-specific measurement of condensable emissions. However, the PM 2.5 Implementation Rule acknowledged that there were issues and concerns related to availability and implementation of these test methods as well as uncertainties in existing data for condensable PM 2.5 . In recognition of these concerns, EPA established a transition period during which EPA could assess possible revisions to available test methods and to allow time for states to update emissions inventories as needed to address direct PM 2.5 , including condensable emissions. Because of the time required for this assessment, EPA recognized that states would be limited in how to effectively address CPM emissions, and established a period of transition, up to January 1, 2011, during which state submissions for PM 2.5 were not required to address CPM emissions. Amendments to these test methods were proposed on March 25, 2009 (74 FR 12969), and finalized on December 21, 2010 (75 FR 80118). The amendments to Method 201A added a particle-sizing device for PM 2.5 sampling, and the amendments to Method 202 revised the sample collection and recovery procedures of the method to reduce the formation of reaction artifacts that could lead to inaccurate measurements of CPM emissions.

The period of transition for establishing emissions limits for condensable direct PM 2.5 ended on January 1, 2011. PM 2.5 submissions made during the transition period are not required to address CPM emissions; however, states must address the control of direct PM 2.5 emissions, including condensable emissions, with any new action taken after this January 1, 2011. Pennsylvania submitted the Pennsylvania portion of the Philadelphia area attainment plan prior to January 1, 2011 and did not consider condensables.

In July 2008, EarthJustice filed a petition requesting reconsideration of EPA's transition period for CPM emissions provided in the PM 2.5 Implementation Rule. In January 2009, EPA decided to allow states that have not previously addressed CPM to continue to exclude CPM for Prevention of Significant Deterioration (PSD) permitting during the transition period. Today's action reflects a review of Pennsylvania's submittal based on current EPA guidance as described in the PM 2.5 Implementation Rule.

All attainment demonstrations must include modeling that is performed in accordance with EPA's “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze” (EPA-454/B-07-002, April 2007). Modeling may be based on national ( e.g., EPA), regional ( e.g., Ozone Transport Commission), local modeling, or a combination thereof, if appropriate. A brief description of modeling used to support Pennsylvania's attainment demonstration follows. More detailed information can be found in the TSD entitled, “Technical Support Document for the Modeling Portion of the Commonwealth of Pennsylvania's Fine Particulate Matter State Implementation Plan,” dated October 11, 2011, available on line at www.regulations.gov, Docket number EPA-R03-OAR-2011-0391. The Philadelphia area's attainment plan addressed the following components of a modeled attainment demonstration.

A conceptual model describes how weather patterns affect the formation and transport of PM 2.5 , accounting for emissions and photochemistry. A conceptual model for the Philadelphia area's attainment plan is described in a document prepared by the Northeast States for Coordinated Air Use Management (NESCAUM), “The Nature of the Fine Particle and Regional Haze Air Quality Problems in the Mid-Atlantic Northeast Visibility Union (MANE-VU) Region: A Conceptual Description (NESCAUM), November 2006,” for use by the Ozone Transport Commission (OTC) member states which provides the conceptual description of PM 2.5 issues in the OTC states and is consistent with EPA's guidance.

By agreement of OTC, the New York State Department of Environmental Conservation (NYSDEC) ran the Community Multi-scale Air Quality Model (CMAQ) for the states in the northeast ozone transport region that includes Pennsylvania. EPA agrees CMAQ is appropriate for this modeling demonstration. The inputs of the model are described in section V of the attainment plan submittal.

Since the Philadelphia area's attainment demonstration used a resource intensive photochemical grid model, EPA accepts the use of single, recent representative year to be used for an annual simulation. Two factors were used in selecting 2002 as the representative year. The observed annual mean concentrations of PM 2.5 are close to the 3-year observed design value at all, or most monitoring sites, and the pattern of quarterly mean values is similar to the pattern of quarterly mean concentrations averaged over 3 years.

The OTC modeling committee decided to use a prognostic meteorological model that provides life-like meteorological inputs to the photochemical grid model. The Pennsylvania State University/National Center for Atmospheric Research Mesoscale Meteorological Model (MM5) version 3.6 was chosen for the modeling analysis. The MM5 model provides a reasonable representation of weather conditions at the surface and aloft.

The modeling domain extends from Maine to Florida and out in the Atlantic Ocean on the east and west to the Mississippi River. The size of the modeling domain was made large enough to include all emission sources that affect PM 2.5 concentration in the northeastern United States. Even this boundary is defined by a larger photochemical modeling domain that covers much of North America. Over the northeastern United States, the model used 12 kilometer grid cells. The Pennsylvania portion of the Philadelphia area is included in the 12 kilometer grid cell area. The OTC Modeling Committee used a 12-kilometer grid size for the areas in and near its states to provide a fine enough grid resolution to adequately capture the PM patterns experienced in the ozone transport region (OTR). Outside the local areas the grid resolution used in the modeling is 36 kilometers. The selection of model domains and horizontal grid resolution was deemed acceptable to EPA.

Vertical resolution is the number of layers and the size of each layer in the model. The layers in the photochemical grid model were set up to be compatible with the model that produced weather conditions for the photochemical grid model. The vertical resolution used in the modeling exercise followed EPA's modeling guidance and therefore adequately represents the atmosphere where PM 2.5 is emitted, forms and is transported.

The emissions data for 2002 were generated by individual states within the OTR and assembled and processed through Mid-Atlantic Northeast Visibility Union (MANE-VU), a Regional Planning Organization (RPO). These emissions were then processed by NYSDEC using the sparse matrix operator kernel emissions (SMOKE) emissions processor to provide CMAQ compatible inputs. The 2002 emissions for the non-OTR areas within the modeling domain were obtained from the corresponding RPOs and were processed using SMOKE, in manner similar to that of the OTR emissions. The OTR states, through MANE-VU, contracted MACTEC Federal Programs (called Contractor) to develop 2009, 2012 and 2018 inventories based on 2002 inventories that the states had previously developed for the base-year model work. The Contractor, in consultation with the states, developed the necessary growth and control factors and applied to the 2002 inventory.

NYSDEC performed a model evaluation for the OTC to determine how well CMAQ reproduced the 2002 PM 2.5 concentrations. CMAQ was employed to simulate PM 2.5 for the calendar year 2002. A review of PM 2.5 and its individual species was conducted for the study domain. Several observations were made with respect to model performance: (1) Approximately 80-90 percent of organic mass (OM) is in the primary fraction; (2) CMAQ captures seasonal variation in SO 4 well; (3) CMAQ appears to overestimate primary PM 2.5 components, especially during colder months; and (4) CMAQ appears to underestimate secondary OM during the summer.

These issues are not of great regulatory concern since attainment tests are based on the application of relative response factors. Therefore, the regional and local model performance is acceptable for PM 2.5 . While there are some differences between the spatial data between sub-regions, there is nothing to suggest a tendency for the model to respond in a systematically different manner between regions. Examination of the statistical metrics by sub-region confirms the absence of significant performance problems arising in one area but not in another, building confidence that the CMAQ modeling system is operating consistently across the full OTC domain. This confidence in the modeling results allows for the modeling system to be used to support the attainment plan to meet the 1997 annual PM 2.5 NAAQS.

As previously mentioned, the Pennsylvania portion of the Philadelphia area has an attainment date of April 5, 2010. The PM 2.5 NAAQS include an annual standard of 15 μg/m 3 based on the 3-year average of annual mean PM 2.5 concentrations. The purpose of a modeling assessment is to determine if control strategies currently being implemented (“on the books”) will lead to attainment of the annual average NAAQS for PM 2.5 by 2009. The modeling is applied in a relative sense, similar to the 8-hour ozone attainment test. However, the PM 2.5 attainment test is more complicated and reflects the fact that PM 2.5 is a mixture. In the test, ambient PM 2.5 is divided into major components, with a separate relative response factor (RRF) and Future Design Value (FDV) calculated for each of the PM 2.5 components. Since the attainment test is calculated on a per species basis, the attainment test for PM 2.5 is referred to as the Speciated Modeled Attainment Test (SMAT).

Table 4 presents the results of the annual SMAT results for the Philadelphia area. The SMAT results demonstrate that the projected average annual arithmetic mean PM 2.5 concentration calculated at each Federal Reference Method (FRM) monitor attains the annual PM 2.5 NAAQS. Specifically, all calculations are less than15 μg/m 3 . Table 4 presents the results of the annual SMAT results for a suite of regional modeling runs conducted by OTC each representing OTB/OTW—“On the Books, On the Way” control measures. All runs demonstrate compliance with the annual PM 2.5 NAAQS.

In summary, the basic photochemical grid modeling, presented in the Philadelphia area attainment plan, used the methods recommended in EPA's modeling guidance. When EPA's attainment test is applied to the modeling results, the 2009 annual-average PM 2.5 design value is predicted to be 13.5μg/m 3 in the Philadelphia area. Therefore, based on EPA's modeled attainment test, the Pennsylvania portion of the Philadelphia area reached attainment of the annual average PM 2.5 standard in 2009 before the attainment date of April 5, 2010.

EPA's modeling guidance states that additional analyses are recommended to determine if attainment will be likely, even if the modeled attainment test is “passed.” The guidance recommends supplementary analyses in all cases. EPA's modeling guidance describes how to use a photochemical grid model and additional analytical methods to complete a WOE analysis to estimate if emissions control strategies will lead to attainment. A WOE analysis is a supporting analysis that helps to determine if the results of the photochemical modeling system are correctly (or not correctly) predicting future air quality.

All models, including the CMAQ model have inherent uncertainties. Over or under prediction may result from uncertainties associated with emission inventories, meteorological data, and representation of PM 2.5 chemistry in the model. Therefore, EPA modeling guidance provides for other evidence to address these model uncertainties so that proper assessment of the probability to attain the applicable standards can be made. EPA modeling guidance states that those modeling analyses that show that attainment with the NAAQS will be reached in the future with some margin of safety ( i.e., estimated concentrations below 14.5 μg/m 3 for annual PM 2.5 and 62 μg/m 3 for 24-hour PM 2.5 ) need more limited supporting material.

Due to the fact that the modeling results presented in Table 4 fall below the aforementioned “weight of evidence” thresholds established by EPA, a limited supplemental analysis was deemed necessary to support the 2009 attainment demonstration. PADEP's supporting evidence includes a brief summary of the modeling demonstration, recent trends in the Philadelphia area's monitoring data and a brief analysis of some of the largest SO 2 sources within the nonattainment area.

CAA section 172(c)(1) requires that each attainment plan “provide for the implementation of all RACM as expeditiously as practicable, including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of RACT, and shall provide for attainment of the national primary ambient air quality standards.” EPA interprets RACM including RACT under section 172 as measures that a state finds are both reasonably available and contribute to attainment as expeditiously as practicable in the nonattainment area. Thus, what constitutes RACM or RACT in a PM 2.5 nonattainment area is closely tied to the expeditious attainment demonstration of the plan. See, 40 CFR 51.1010; 72 FR 20586 at 20612.

States are required to evaluate RACM/RACT for direct PM 2.5 emissions and all of the area's attainment plan precursors. See, 40 CFR 51.1002(c); 72 FR 20586 at 20589-97. Consistent with the guidance provided for the PM 2.5 Implementation Rule, a state initially must evaluate RACM/RACT for sources that emit direct PM 2.5, SO 2 , and NO X . A state may establish with an appropriate demonstration that it should not regulate NO X in the specific nonattainment area, so it could thereby forgo evaluation of RACM/RACT for NO X . Because EPA concluded that VOC and NH 3 are presumptively not regulatory precursors for PM 2.5 , unless the state or EPA determines that it is necessary to regulate them in a specific nonattainment area, the state is not required to evaluate RACM/RACT for sources of VOC or NH 3 unless there is a determination supported by an appropriate demonstration that such emissions need to be regulated for expeditious attainment of the NAAQS in the specific area.

For PM 2.5 attainment plans, the PM 2.5 Implementation Rule requires a combined approach to RACM and RACT under subpart 1 of Part D of the CAA. Subpart 1, unlike subparts 2 and 4, does not identify specific source categories for which EPA must issue control technique documents or guidelines, or identify specific source categories for state and EPA evaluation during attainment plan development. See 72 FR 20586 at 20610. Rather, under subpart 1, EPA considers RACT to be part of an area's overall RACM obligation consistent with the section 172 definition. Because of the variable nature of the PM 2.5 problem in different nonattainment areas which may require states to develop attainment plans that address widely disparate circumstances, EPA determined not only that states should have flexibility with respect to RACM/RACT controls, but also that in areas needing significant emission reductions, RACM/RACT controls on smaller sources may be necessary to reach attainment as expeditiously as practicable. See, 72 FR 20586 at 20612, 20615. Thus, under the PM 2.5 Implementation Rule, RACM and RACT are those reasonably available measures that contribute to attainment as expeditiously as practicable in the specific nonattainment area. See, 40 CFR 51.1010; 72 FR 20586 at 20612.

Specifically, the PM 2.5 Implementation Rule requires that attainment plans include the list of measures that a state considered and information sufficient to show that the state met all requirements for the determination of what constitutes RACM/RACT in a specific nonattainment area. See, 40 CFR 51.1010(a). In addition, the PM 2.5 Implementation Rule requires that the state, in determining whether a particular emissions reduction measure or set of measures must be adopted as RACM/RACT, consider the cumulative impact of implementing the available measures and to adopt as RACM/RACT any potential measures that are reasonably available considering technological and economic feasibility if, considered collectively, they would advance the attainment date by one year or more. If a measure or measures is not necessary for expeditious attainment of the NAAQS in the area, then by definition that measure is not RACM/RACT for purposes of the 1997 PM 2.5 NAAQS in that area. Any measures that are necessary to meet these requirements which are not already either Federally promulgated, part of the state's SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan for the area. See, 72 FR 20586 at 20614.

Guidance provided in the PM 2.5 Implementation Rule for evaluating RACM/RACT level controls for an area also indicated that there could be flexibility with respect to those areas that were predicted to attain the 1997 PM 2.5 NAAQS within five years of designation as a result of existing national or local measures. See, 72 FR 20586 at 20612. In such circumstances, EPA indicated that the state may conduct a more limited RACM/RACT analysis that does not involve additional air quality modeling. Moreover, the RACM/RACT analysis for such area would focus on a review of reasonably available measures, the estimation of potential emissions reductions, and the evaluation of the time needed to implement the measures. Thus, the PM 2.5 Implementation Rule guidance recommended that not all areas would need to conduct as rigorous an analysis, and suggested that a less rigorous analysis would be needed for those areas expected to attain within the initial five years from designation as a nonattainment area for the 1997 PM 2.5 NAAQS. A more comprehensive discussion of the RACM/RACT requirement for PM 2.5 attainment plans and EPA's guidance for it can be found in the PM 2.5 Implementation Rule preamble. See, 72 FR 20586 at 20609-20633.

Based upon the emissions inventory for the area, Pennsylvania determined that it would be appropriate to evaluate sources of PM 2.5 , SO 2 , and NO X located in the nonattainment area for potential control as RACM/RACT. Pennsylvania did not determine that controls of sources of VOC or NH 3 would be necessary for expeditious attainment of the NAAQS in this area, nor does EPA believe that there is a need to do so.

After evaluating which pollutants should be addressed in the attainment plan, Pennsylvania identified all source categories of those emissions located within the nonattainment area to determine available controls that could bring the area into attainment as expeditiously as possible. See, section IV.B of the attainment plan submittal. Based on the emissions inventory and other information, Pennsylvania identified the following source categories as sources that should be evaluated for controls: Consumer products; portable fuel containers; adhesives and sealants application; diesel engine chip reflash; cutback and emulsified asphalt paving; cement kilns; glass furnaces; industrial, commercial, and institutional (ICI) boilers; regional fuels; and electric generating units (EGUs).

The attainment plan submittal contains the Ozone Transport Commission (OTC) report entitled, “Identification and Evaluation of Candidate Control Measures, Final Technical Support Document (MACTEC, February 2007).” This final report contains detailed information about the process and includes tables summarizing the emission reduction potential of each control measure by source category and projection year. Pennsylvania also participated in an assessment of control measures for pollutants and sources affecting visibility though the MANE-VU regional haze process. MANE-VU developed a list of control measures for consideration and analysis: coal and oil-fired EGUs; point and area source industrial, commercial, and institutional boilers; cement kilns; lime kilns; the use of heating oil; and residential wood combustion and open burning.

The attainment plan submittal, contains the final report entitled, “Assessment of Reasonable Progress for Regional Haze in MANE-VU Class I Areas (MACTEC, July 2000),” from the MANE-VU control measure assessment project. This report presents the results of an analysis of the economic and environmental impacts of the potential scenarios that could be implemented by MANE-VU states to reduce emissions from selected source categories in order to make reasonable progress toward meeting visibility improvement goals.

In accordance with 40 CFR 51.1010, a SIP revision for a PM 2.5 nonattainment area is required to demonstrate that all RACM, including RACT stationary sources necessary to demonstrate attainment as expeditiously as practicable have been adopted. The cumulative impact of implementing available measures must be considered in determining whether a particular emission reduction measure or set of measures is required to be adopted as RACM. Potential measures that are reasonably available considering technical and economic feasibility must be adopted as RACM if, considered collectively, they would advance the attainment date by one year or more. Since the Pennsylvania portion of the Philadelphia area attained at the end of 2009, any RACM measures need to be in effect in 2008. PADEP determined that there are no additional control measures that could be adopted by January 1, 2008. In addition, existing measures and measures planned for implementation by 2009, enabled the Philadelphia area to attain the 1997 PM 2.5 NAAQS. Therefore, no further actions on RACM or RACT are warranted.

In accordance with section 172 of the CAA, the Pennsylvania portion of the Philadelphia area has adopted all RACM, including RACT, needed to attain the standards “as expeditiously as practicable.” Pennsylvania's demonstration for attaining the 1997 PM 2.5 NAAQS in the Pennsylvania portion of the Philadelphia area is based on the following enforceable measures: Small sources of NO X , cement kilns and large stationary internal combustion engines; new source review programs; Federal standards for hazardous air pollutants; source surveillance; Federal Motor Vehicle Control Programs and Pennsylvania Clean Vehicle Program for passenger vehicles and light-duty trucks and cleaner gasoline; reformulated gasoline; heavy-duty diesel control programs; vehicle emission inspection/maintenance program; low sulfur gasoline; diesel vehicle idling restrictions; and nonroad sources regulations.

Although VOC is not a regulated PM 2.5 precursor for the Philadelphia area, VOC control measures approved by EPA were included in the modeling associated with this attainment plan: Portable fuel containers (December 8, 2004, 69 FR 70893); consumer products (December 8, 2004, 69 FR 70895); and architectural and industrial maintenance (AIM) coatings (November 23, 2004, 69 FR 69080).

EPA is proposing to approve Pennsylvania's evaluation of RACM/RACT control measures for the Pennsylvania portion of the Philadelphia area. As noted above, the most current monitoring data for this area indicates that it is attaining the 1997 PM 2.5 NAAQS. EPA's guidance for the PM 2.5 Implementation Rule recommended that if an area was predicted through the attainment plan to attain the standard within five years after designation, then the state could submit a more limited RACM/RACT analysis and the state could elect not to do additional modeling.

In light of the fact that the Pennsylvania portion of the Philadelphia area is now attaining the standards, EPA proposes to conclude that the attainment plan meets the RACM/RACT requirements of the PM 2.5 Implementation Rule, and that the level of control in the State's attainment plan constitutes RACM/RACT for purposes of the 1997 PM 2.5 NAAQS. Because the PM 2.5 Implementation Rule defines RACM/RACT as that level of control that is necessary to bring the area into attainment, the current level of Federally enforceable controls on sources located within the area is by definition RACM/RACT for this area for this purpose.

Section 172(c)(2) of the CAA requires that attainment plans include RFP to achieve steady progress toward meeting air quality standards by showing generally linear progress toward attainment. The PM 2.5 Implementation Rule set forth that an area that demonstrates attainment by 2010 will be considered to have satisfied the RFP requirement and need not submit any additional material to satisfy the RFP requirement. The EPA views the attainment demonstration as also demonstrating that the area is making reasonable further progress toward attainment. A state is required to submit a separate RFP plan for any area for which the state seeks an extension of the attainment date beyond 2010. The RFP plan is required to provide emission reductions such that emissions in 2009 represent generally linear progress from the 2002 baseline year to the attainment year. The Pennsylvania portion of the Philadelphia area attained by 2010, and has therefore met the RFP requirements.

In accordance with section 172(c)(9) of the CAA, the PM 2.5 Implementation Rule requires that PM 2.5 attainment demonstrations include contingency measures. These measures must be fully adopted and should contain trigger mechanisms and an implementation schedule. In addition, they should be measures not already included in the SIP control strategy and should provide for emission reductions equivalent to one year of RFP. Contingency measures are implemented if RFP targets are not achieved, or if attainment is not realized by the attainment date. Where an area has already achieved attainment by the attainment date, it has no need to rely on contingency measures to come into attainment or to make further progress towards attainment. However, in accordance with section 110(k)(2) of the CAA, EPA must take action on the contingency measures that were submitted by Pennsylvania. The attainment plan for the Pennsylvania portion of the Philadelphia area includes contingency measures to be implemented if the area fails to attain by its attainment date. The following describes the specific control measures that are anticipated to be in place in order to bring the area back into attainment should a violation occur.

The Diesel-Powered Commercial Motor Vehicle Idling Act (Act 124) went into effect on February 6, 2009. PADEP estimates 50 percent of all long duration idling for Class 8 trucks will be eliminated in 2010 when the temperature exemption for sleeper truck rest expires. Statewide emission reductions are estimated to be 1610 tons, 45 tons and 30 tons per year for NO X , VOC and PM 2.5 , respectively. PADEP will also utilize enhanced enforcement to obtain additional emission reductions.

Significant additional reductions in NO X , direct PM 2.5 and SO 2 emissions will occur in emissions from highway and nonmobile sources after 2009. In addition, NO X controls for cement kilns and glass furnaces were approved by EPA on July 19, 2011 (76 FR 42258) and August 22, 2011 (76 FR 52283), respectively. Furthermore, PM 2.5 control from the operation of outdoor wood-fired boilers was approved by EPA on September 20, 2011 (76 FR 58114). Sulfur limits for fuel oil (home heating oil and residential oil) are anticipated to be adopted later. Regulations to reduce VOC emissions are also in development, including controls on the manufacture and use of adhesives, primers and sealants and regulations incorporating the Control Technique Guidelines issued by EPA in 2006, 2007 and 2008.

As required, these measures were fully adopted rules or control measures that were ready to be implemented quickly upon failure of the area to attain, were in addition to those measures otherwise relied upon for attainment, had trigger mechanisms and a schedule for implementation, and were at the level of reductions equal to at least one year's worth of reductions needed for attainment in the area. EPA finds that the measures submitted by Pennsylvania have satisfied the requirements for contingency purposes.

EPA's General Preamble interprets the control measure requirements of sections 172(c)(9) and 182(c)(9) to allow states to implement measures before they are triggered (57 FR 13498, 13511). EPA has previously approved a number of SIPs under this interpretation (66 FR 15844, April 3, 1997; 62 FR 66279, December 18, 1997; 66 FR 30811, June 8, 2001; and 66 FR 586, and 66 FR 634, January 3, 2001) and the Fifth Circuit has upheld EPA's interpretation. Louisiana Environmental Action Network v. EPA, 382 F.3d 575 (Fifth Cir. 2004). It does not matter whether or not a specific contingency measure is already required by law, as long as the emissions reductions that will result from the contingency measure have not been relied upon in the attainment demonstration.

The contingency measures in Pennsylvania's attainment demonstration (described above) that are already implemented and provide reductions in excess of those required by the attainment demonstration to attain the standards. The level of reductions provided is equal to at least one year's worth of reductions needed for attainment in the Pennsylvania portion of the Philadelphia area. Contingency measures are implemented in the event that the Philadelphia area fails to attain the standards by its attainment date. Although the Philadelphia area, as indicated above, met their attainment date of April 5, 2010, and thus is not required to implement contingency measures, by relying on those measures that were already in place, Pennsylvania effectively implemented their control measures in advance.

Pennsylvania provided a demonstration of attainment of the 1997 PM 2.5 NAAQS in the Pennsylvania portion of the Philadelphia area by 2010. Areas, such as this, that demonstrate attainment of the standard by 2010 are considered to have satisfied the requirement to show RFP toward attainment and need not submit a separate RFP plan. For similar reasons, such areas are not subject to a requirement for a mid-course review.

Section 176(c) of the CAA requires Federal actions in nonattainment and maintenance areas to “conform to” the goals of SIPs. This means that such actions will not cause or contribute to violations of a NAAQS, worsen the severity of an existing violation, or delay timely attainment of any NAAQS. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the transportation conformity rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with State Air Quality and Transportation Agencies, EPA, and the FHWA and FTA to demonstrate that their long range transportation plans and transportation improvement programs (TIP) conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit projects are less than or equal to the MVEBs contained in the SIP.

The MVEBs for the 2009 attainment year are based on the projected 2009 on-road motor vehicle source emissions, accounting for the emission reductions from on-road vehicle source control measures, including transportation control measures and vehicle technology, fuel or maintenance-based measures. MVEBs for 2009 attainment year for the Pennsylvania portion of the Philadelphia area are 699 tons per year for PM 2.5 direct and 36,318 tons per year for NO X . More detailed information can be found in the TSD entitled, “Adequacy Findings for Motor Vehicle Emissions Budgets in the Attainment Demonstration for the Pennsylvania Portion of the Philadelphia-Wilmington-New Jersey City 1997 PM 2.5 NAAQS Nonattainment Area, dated October 6, 2011, available online at www.regulations.gov, Docket number EPA-R03-OAR-2011-0391.

For MVEBs to be approvable, they must meet, at a minimum, EPA's adequacy criteria (40 CFR 93.118(e)(4)). The MVEBs for the Pennsylvania portion of the Philadelphia area PM 2.5 attainment plan are being posted to EPA's conformity Web site concurrently with this proposed action. The public comment period will end at the same time as the public comment period for this proposed action. In this case, EPA is concurrently processing the action on the attainment plan and the adequacy process for the MVEBs contained therein. In this action, EPA is proposing to find the MVEBs adequate, and also proposing to approve the MVEBs as part of the attainment plan. The MVEBs cannot be used for transportation conformity until the attainment plan and associated MVEBs are approved in a final Federal Register notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. Our action on the Pennsylvania portion of the Philadelphia area MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov/otaq/stateresources/transconf/index.htm, (once there, click on “Adequacy Review of SIP Submissions).

The budgets that Pennsylvania submitted were calculated using the MOBILE6.2 motor vehicle emissions model. EPA is proposing to approve the inventory and the conformity budgets calculated using this model because this model was the most current model available at the time Pennsylvania was performing its analysis. Separate from today's proposal, EPA has issued an updated motor vehicle emissions model known as the Motor Vehicle Emission Simulator or MOVES. In its announcement of this model, EPA established a grace period for continued use of MOBILE6.2 in transportation conformity determinations for transportation plans and TIPs, after which states and MPOs (other than California) must use MOVES for transportation plan and TIP conformity determinations. This grace period will expire in March 2012 (or March 2013 once the extension becomes official).

Additional information on the use of MOVES in SIPs and conformity determinations can be found in the December 2009, “Policy Guidance on the Use of MOVES2010 for State Implementation Plan Development, Transportation Conformity, and Other Purposes.” This guidance document is available at: http://www.epa.gov/otaq/models/moves/420b09046.pdf. During the conformity grace period, the state and MPO(s) should use the interagency consultation process to examine how MOVES2010a will impact their future transportation plan and TIP conformity determinations, including regional emissions analyses. For example, an increase in emission estimates due to the use of MOVES2010a may affect an area's ability to demonstrate conformity for its transportation plan and/or TIP. Therefore, state and local planners should carefully consider whether the SIP and motor vehicle emissions budget(s) should be revised with MOVES2010a or if transportation plans and TIPs should be revised before the end of the conformity grace period, since doing so may be necessary to ensure conformity determinations in the future.

We would expect that states and MPOs would work closely with EPA and the local FHWA and FTA offices to determine an appropriate course of action to address this type of situation if it is expected to occur. If Pennsylvania chooses to revise its PM 2.5 attainment plan, it should consult Question 7 of the December 2009, “Policy Guidance on the Use of MOVES2010 for State Implementation Plan Development, Transportation Conformity, and Other Purposes,” for information on requirements related to such revisions.

EPA is proposing to approve the 1997 annual PM 2.5 NAAQS attainment plan for the Pennsylvania portion of the Philadelphia area that was submitted on April 12, 2010. The attainment plan includes Pennsylvania's attainment demonstration, the MVEBs used for transportation conformity purposes, an analysis of RACM/RACT, a base year emissions inventory, and contingency measures. EPA has determined that the SIP revision meets the applicable requirements of the CAA, as described in the PM 2.5 Implementation Rule. Specifically, EPA has determined that the Pennsylvania SIP revision includes an attainment demonstration and adopted state regulations and programs needed to support a determination that the Pennsylvania portion of the Philadelphia area would have attain the 1997 annual PM 2.5 NAAQS by the April 2010 deadline. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, pertaining to the 1997 PM 2.5 attainment plan for the Pennsylvania portion of the Philadelphia area, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

We request comments and suggestions on this topic from other concerned governmental agencies, the scientific community, industry, or any other interested parties. You may submit your comments and materials concerning this issue by one of the methods listed in the ADDRESSES section. We will not consider comments sent by email or fax or to an address not listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we use in preparing a proposed rule, will be available for public inspection at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service (contact the person listed under FOR FURTHER INFORMATION CONTACT ).

On July 6, 2011, we published in the Federal Register an advance notice of proposed rulemaking to gather information and suggestions from the public to help us formulate a proposed regulation for a specific permit authorizing the use of raptors in abatement activities (76 FR 39368). The comment period for the advance notice of proposed rulemaking was open for 90 days, ending on October 4, 2011. At a commenter's request, we are reopening the comment period on the advance notice of proposed rulemaking for an additional 60 days (see DATES section). We specifically seek comments concerning any aspect of the use of trained MBTA-protected raptors for abatement activities and potential regulations to govern Federal permitting. We particularly solicit comments on the topics listed below. Explaining the reasons and rationale for your comments where appropriate will help as we consider them in the preparation of a proposed rule.

(1) Qualifications and experience necessary to qualify for a Federal abatement permit.

(2) Limits on the species that should be authorized for use in abatement activities.

(3) Limits on the numbers of raptors that should be authorized for use in abatement activities.

(4) Qualifications and experience of subpermittees (both those authorized to fly the permit holder's raptors and those allowed to care for birds).

(5) Caging requirements for birds, while traveling, being transported and held in “temporary” caging for extended periods of time, i.e., multiple birds held in a trailer while conducting seasonal abatement activities at multiple locations.

(6) The use of falconry birds held by subpermittees for abatement.

(7) Any other considerations relating to subpermittees conducting abatement activities under a permit holder's permit, including their business relationship to the permit holder. For example, should falconers located elsewhere in the United States be allowed to conduct abatement activities in their own locale as subpermittees under a permit holder's abatement permit? Why or why not?

(8) Comments on what has worked well under existing permits and what has not worked well.

(9) Report information that should be required from a permit holder, if any.

(10) Other conditions that should apply to these permits.

(11) Examples of situations where raptors are used for abatement and information or documentation of success or lack of success in accomplishing abatement objectives.

If you previously submitted comments in response to the July 6, 2011, advance notice of proposed rulemaking, do not resubmit them. They will be fully considered as we prepare a proposed rule. For more information concerning the advance notice of proposed rulemaking, please refer to that document at 76 FR 39368 (July 6, 2011).

Background

On August 5, 2011, we, the National Marine Fisheries Service (NMFS), received a petition from the Natural Resources Defense Council (NRDC), requesting that we list alewife ( Alosa pseudoharengus ) and blueback herring ( Alosa aestivalis ) each as threatened throughout all or a significant portion of their range under the Endangered Species Act (ESA). In the alternative, they requested that NMFS designate distinct population segments (DPS) of alewife and blueback herring as specified in the petition (Central New England (CNE), Long Island Sound (LIS), Chesapeake Bay (CB) and Carolina for alewives, and CNE, LIS, and CB for blueback herring). The petition contains information on the two species, including the taxonomy; historical and current distribution; physical and biological characteristics of the species' habitat and ecosystem relationships; population status and trends; and factors contributing to the species' decline. NRDC also included information regarding the possible DPSs of alewife and blueback herring as described above. The petition addresses the five factors identified in section 4(a)(1) of the ESA: (1) Present or threatened destruction, modification, or curtailment of habitat or range; (2) over-utilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting the species' continued existence.

Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires that we make a finding as to whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating the petitioned action may be warranted. ESA implementing regulations define substantial information as the amount of information that would lead a reasonable person to believe the measure proposed in the petition may be warranted (50 CFR 424.14(b)(1)). In determining whether substantial information exists for a petition to list a species, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the finding is to be published promptly in the Federal Register . If we find that a petition presents substantial information indicating that the requested action may be warranted, section 4(b)(3)(A) of the ESA requires the Secretary of Commerce (Secretary) to conduct a review of the status of the species. Section 4(b)(3)(B) requires the Secretary to make a finding as to whether the petitioned action is warranted within 12 months of the receipt of the petition. The Secretary has delegated the authority for these actions to the NOAA Assistant Administrator for Fisheries.

The ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range (ESA section 3(6)).” A threatened species is defined as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (ESA section 3(19)).” As stated previously, under section 4(a)(1) of the ESA, a species may be determined to be threatened or endangered as a result of any one of the following factors: (1) Present or threatened destruction, modification, or curtailment of habitat or range; (2) over-utilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. Listing determinations are made solely on the basis of the best scientific and commercial data available, after conducting a review of the status of the species and taking into account efforts made by any state or foreign nation to protect such species.

Under the ESA, a listing determination can address a species, subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532 (16)). NRDC presents information in the petition proposing that DPSs of alewife and blueback herring are present in the United States and indicating that it may be appropriate to divide the population into DPSs of alewife and blueback herring as specified in the petition. If we find that listing at the species level is not warranted, we will determine whether any populations of these species meet the DPS policy criteria, and if so, whether any DPSs are endangered or threatened under the ESA.

Alewife and blueback herring are collectively referred to as “river herring.” Due to difficulties in distinguishing between the species, they are often harvested together in commercial and recreational fisheries, and managed together by the Atlantic States Marine Fisheries Commission (ASMFC). Throughout this finding, where there are similarities, they will be collectively referred to as river herring, and where there are distinctions they will be identified by species.

River herring can be found along the Atlantic coast of North America, from the maritime provinces of Canada to the southeastern United States (Mullen et al., 1986; Shultz et al., 2009). The coastal ranges of the two species overlap, with blueback herring found in a greater and more southerly distribution ranging from Nova Scotia down to the St. John's River, Florida; and alewife found in a more northerly distribution, from Labrador and Newfoundland to as far south as South Carolina, though the extreme southern range is a less common occurrence (Collette and Klein-MacPhee, 2002; ASMFC, 2009a; Kocik et al., 2009). Adults are most often found at depths less than 100 m (328 ft) in waters along the continental shelf (Neves, 1981; ASMFC, 2009a; Shultz et al., 2009).

River herring have a deep and laterally compressed body, with a small, pointed head with relatively large eyes, and a lower jaw that protrudes further than the upper jaw (Collette and Klein-MacPhee, 2002). The dorsal fin is small and slightly concave, pelvic fins are small, pectorals are moderate and low on the body, and the caudal fin is forked (Collette and Klein-MacPhee, 2002).

The coloring varies, ranging from dark blue and bluish green to grayish green and bluish gray dorsally; and silvery with iridescence in shades of green and violet on the sides and abdomen. In adults, there is often a dusky spot that is located at eye level on both sides behind the margin of the gill cover. The colors of alewife are thought to change in shade according to substrate as the fish migrates upstream, and sea run fish are thought to have a golden cast to their coloring (Collette and Klein-MacPhee, 2002).

Blueback herring and alewife are similar in appearance; however, there are some distinguishable characteristics: Eye diameter and the color of the peritoneum. The eye diameter with alewives is relatively larger than that of blueback herring. In blueback herring, the snout length is generally the same as the eye diameter; however with alewives, the snout length is smaller than the diameter of the eye (Collette and Klein-MacPhee, 2002). In alewives, the peritoneum is generally pale/light gray or pinkish white, whereas the peritoneum in blueback herring is generally dark colored and either brown or black, and sometimes spotted (Collette and Klein-MacPhee, 2002; ASMFC, 2009a).

River herring are anadromous, meaning that they migrate up coastal rivers in the spring from the marine environment, to estuarine and freshwater rivers, ponds, and lake habitats to spawn (Collette and Klein-MacPhee, 2002; ASMFC, 2009a; Kocik et al., 2009). They are highly migratory, pelagic, schooling species, with seasonal spawning migrations that are cued by water temperature (Collette and Klein-MacPhee, 2002; Schultz, 2009). Depending upon temperature, blueback herring typically spawn from late March through mid-May. However, they have been documented spawning in the southern parts of their range as early as December or January, and as late as August in the northern range (ASMFC, 2009a). Alewives generally migrate earlier than other alosine fishes, but have been documented spawning as early as February to June in the southern portion of their range, and as late as August in the northern portion of the range (ASMFC, 2009a). It is thought that river herring return to their natal rivers for spawning, and do exhibit natal homing. However, colonization of streams where river herring have been extirpated has been documented; therefore, some effective straying does occur (ASMFC, 2009a).

Throughout their life cycle, river herring use many different habitats ranging from the ocean, up through estuaries and rivers, to freshwater lakes and ponds. The substrate preferred for spawning varies greatly and can include substrates consisting of gravel, detritus, and submerged aquatic vegetation. Blueback herring prefer swifter moving waters than alewife (ASMFC, 2009a). Nursery areas can include freshwater and semi-brackish waters; however, little is known about their habitat preference in the marine environment (Meadows, 2008; ASMFC, 2009a).

In the following sections, we use the information presented in the petition and in our files to: (1) Describe the distribution of alewife and blueback herring; and (2) evaluate whether alewife and blueback herring are at abundance levels that would lead a reasonable person to conclude that listing under the ESA may be warranted due to any of the five factors listed under section 4(a)(1) of the ESA.

The NRDC asserts that alewife and blueback herring populations have suffered dramatic declines over the past 4 decades (ASMFC, 2008). The NRDC cites the ASMFC as stating that alewife and blueback herring harvest averaged almost 43 million pounds (19,504 metric tons (mt)) per year from 1930 to 1970. NRDC also cites ASMFC (2008) in stating that peak harvest occurred in the late 1940s and early 1950s and was highest in Virginia and North Carolina. The NRDC notes that commercial landings of river herring began declining sharply coastwide in the 1970s. However, ASMFC (2009a) reports that 140 million pounds (63,503 mt) of river herring were commercially landed in 1969, marking the peak in river herring catch; this is a discrepancy from what is stated in the petition. From the peak landings in 1969, landings declined to a point where domestic landings recently (2000-2007) exceeded only 2 million pounds (907 mt) yearly (ASMFC, 2009a). Declines in catch per unit effort (CPUE) have also been observed in two rivers for blueback herring and for alewife, and declining trends in CPUE for the combined species were also observed in two out of three rivers examined (ASMFC, 2009a).

ASMFC (2009a) also reports declines in abundance through run size estimates for river herring combined, as well as for individual species of alewife and blueback herring. Abundance declined in seven out of fourteen rivers in New England from the late 1960s to 2007, with no obvious signs of recovery; however, since 2004, there have been some signs of recovery in five out of fourteen rivers (ASMFC, 2009a). Coastwide declines have been observed, particularly in southern New England (Davis and Schultz et al., 2009). In the Connecticut River the number of blueback herring passing Holyoke Dam declined from 630,000 in 1985 to a low of 21 in 2006 (Schultz et al., 2009).

In the petition, the NRDC states that habitat alterations, loss of habitat, and impaired water quality have contributed to the decline of river herring since colonial times. NRDC further states that climate change now poses an increasing threat as well. NRDC states that dams and turbines block access to spawning and foraging habitat, may directly injure or kill passing fish, and change water quality through alterations in flow and temperature, which NRDC asserts is significantly impacting river herring. NRDC cites ASMFC (2009b) which indicates that flow variations caused by dams, particularly hydropower dams, can displace eggs as well as disrupt migration patterns, which will adversely affect the survival and productivity of all life stages of river herring as well as other anadromous fish. ASMFC (2009b) indicates that increased flows at dams with fishways can also adversely affect the upstream migration of adults, impeding their ability to make it up through the fishway, as well as the downstream migration of juveniles, causing an early downstream migration and higher flows through sluiceways resulting in mortality. According to NRDC, dams have caused river herring to lose access to significant portions of their spawning and foraging habitat. In addition to altering flow and changing environmental parameters such as temperature and turbidity, NRDC indicates that dams, particularly hydropower dams, cause direct mortality to various life stages of river herring through entrainment and impingement in turbines, and changing water pressures. In addition, NRDC states that turbines used in tidal hydroelectric power plants may impact river herring with each tidal cycle as the fish migrate through the area.

Dredging and blasting were also identified by NRDC as significant threats to river herring. The petition cites ASMFC (2009b), asserting that increased suspended sediment, changes in water velocities, and alteration of substrates through dredging can directly impact river herring habitat. In addition, NRDC asserts that these operations may affect migration patterns and spawning success, and they can directly impact gill tissues, producing near fatal effects (NMFS, 1998; ASMFC, 2009b).

The NRDC also asserts that water quality poses a significant threat to river herring through changes in water temperature and flow, introduction of toxic pollutants, discharge, erosion, and nutrient and chemical run-off (ASMFC, 2009b). NRDC states that “poor water quality alone can significantly impact an entire population of alewife or blueback herring.” ASMFC (2008) notes that significant declines in dissolved oxygen (DO) levels in the Delaware River during the 1940s and 1950s from heavy organic loading made portions of the river during the warmer months of the year uninhabitable to river herring. ASMFC (2008, 2009a) indicates that river herring abundance is significantly affected by low DO and hypoxic conditions in rivers and that these conditions may also prevent spawning migrations.

River herring susceptibility to toxic chemicals and metals was also identified by NRDC as a threat to the species. The NRDC asserts that river herring are subjected to contaminants through their habitat, which may be contaminated with dioxins, polychlorinated aromatic hydrocarbons, organophosphate and organochlorine pesticides, polychlorinated biphenyls, and other hydrocarbon compounds, as well as toxic metals. Citing ASMFC (1999), the NRDC states that because of industrial, residential, and agricultural development, heavy metal and various types of organic chemical pollution has increased in nearly all estuarine waters along the Atlantic coast, including river herring spawning and nursery habitat. NRDC asserts that these contaminants can directly impact fish through reproductive impairment, reduced survivorship of various life stages, and physiological and behavioral changes (ASSRT, 2007; 75FR 61872).

The NRDC also identified climate change as a threat to river herring habitat. According to NRDC, the spatial distribution, migration, and reproduction of alewife may be affected through rising water temperatures caused by climate change. Citing the International Panel on Climate Change (IPCC) (2001), NRDC states that fish larvae and juveniles may have a high sensitivity to water temperature and suggests that headwaters and rivers may be more vulnerable; thus, the effects of climate change may be more significant to anadromous species, which utilize a multitude of habitats. According to ASMFC (2009b), as water temperatures rise, the upstream spawning migration of alewife declines, and will mostly cease once temperatures have risen above 21 degrees Celsius. In addition to increasing water temperatures, climate change may affect river herring through increased precipitation that may affect rivers and estuaries along the coast. Citing Kerr et al. (2009), the NRDC reports that a 10 percent increase in annual precipitation is expected in the Northeast United States from 1990 to 2095 and that precipitation has already increased 8 percent over the past 100 years (Markham and Wake, 2005). As increased water flows may affect anadromous fish migration, increased precipitation and the potential for flooding in rivers due to climate change may pose a significant threat to river herring (Limburg and Waldman, 2009).

The NRDC identified direct harvest, bycatch, and incidental catch as significant threats to river herring. River herring were historically fished through inshore fisheries, and constitute one of the oldest fisheries in North America (Haas-Castro, 2006). Commercial landings of river herring reached nearly 34,000 metric tons (mt) in the 1950s, but in the 1970s, landings fell below 4,000 mt. According to ASMFC (2008), foreign commercial exploitation of river herring in the 1960s led to drastic declines in abundance of river herring. Annual commercial landings over the past decade have varied from 137 mt to 931 mt, and 90 percent of this catch was typically harvested by Maine, North Carolina, and Virginia fisheries (Haas-Castro, 2006). Historically, river herring were targeted for food, bait and fertilizer purposes; however, they are currently most often used for bait in commercial fisheries (Collette and Klein-MacPhee, 2002). The NRDC contends that declines in river herring abundance are greatly affected by commercial overharvest, noting that direct harvest of river herring currently takes place in Maine, New Hampshire, New York, New Jersey, some rivers in Delaware, Maryland, Virginia, and South Carolina.

Bycatch and incidental catch were also identified by NRDC as resulting in significant mortality of river herring, stating that this catch occurs in both state and Federal waters. NRDC asserts that the anadromous life history of river herring presents the potential for increased bycatch due to the species schooling behavior at congregation sites throughout different portions of migration. Citing Lessard and Bryan (2011), NRDC indicates that “hot spots” of bycatch and incidental catch have been found in the winter between Cape Cod and Cape Hatteras, in the spring with blueback herring in the southern region, and in the fall in the Gulf of Maine and Georges Bank. The NRDC states that a variety of sources including landings records, log books, portside sampling efforts, and the NMFS observer program provide information on bycatch and incidental catch, asserting that most of these sources are likely to underestimate the amount of bycatch that occurs.

The NRDC cites Lessard and Bryan (2011) in stating that the majority of bycatch of river herring is taken with mid-water otter paired trawls, and that catch with this gear type appears to be increasing from 2000-2008, with an estimation of around 500,000 to 2.5 million pounds (227 to 1,134 mt) of river herring caught annually as bycatch. In addition, the NRDC asserts that the Atlantic herring and Atlantic mackerel fisheries are increasing their use of single and pair mid-water trawls, and are using larger, more efficient nets, increasing the effort and efficiency in this fishery. The petition further outlines specific overharvesting issues within the Damariscotta, Hudson, Delaware, Potomac, Chowan, Santee-Cooper, and the St. John's Rivers, as well as Chesapeake Bay and Albermarle Sound.

The NRDC identifies predation and disease as another threat facing river herring. Citing the Maine Department of Marine Resources (ME DMR) (2003), NRDC states that river herring may be preyed upon by striped bass, bluefish, tuna, cod, haddock, halibut, American eel, brook trout, rainbow trout, brown trout, lake trout, landlocked salmon, smallmouth bass, largemouth bass, pickerel, pike, white and yellow perch, seabirds, bald eagle, osprey, great blue heron, gulls, terns, cormorants, seals, whales, otter, mink, fox, raccoon, skunk, weasel, fisher, and turtles. It asserts that the decline of some populations of river herring is due to increased predation, citing ASMFC (2008) as noting a concern with increasing striped bass abundance, and identifying predation by striped bass as contributing significantly to the decline of river herring in some rivers. Additionally, many species of cormorants along the coast are increasing in abundance, and predation on alosines by cormorants has been increasing, although Dalton et al. (2009) suggested that the double-crested cormorant is not believed to pose an immediate threat to the recovery of alewife in Connecticut.

According to the NRDC, significant cumulative mortality can occur with viral hemorrhagic septicemia, which is a viral infection known to infect certain anadromous fish, including river herring. Additionally, NRDC asserts that when levels of suspended solids are present during spawning, alewife eggs are significantly more likely to contract a naturally occurring fungus infection.

The NRDC states that state and Federal regulatory mechanisms are insufficient and contributing to drastic declines in river herring populations that continue throughout all or a significant portion of the species' ranges. Due to difficulties in distinguishing between the species, alewife and blueback herring are managed together by the ASMFC as river herring. NRDC states that ASMFC has the authority to develop and issue interstate fishery management plans (FMP) for fisheries administered by the state agencies and will coordinate management with Federal waters.

According to NRDC, ASMFC adopted an amendment to the coast-wide FMP for American shad and river herring in 2009, to specifically address the declining river herring populations coastwide. The petition asserts that this amendment is not likely to protect river herring sufficiently, as it “does not require, and is not likely to result in, adequate measures to reduce significant incidental catch and bycatch/bycatch mortality of these species, particularly in federal waters.” NRDC also asserts that this amendment does not address non-fishing stressors on river herring sufficiently. The petition further states that four states have already had prohibitions on the harvest of river herring in place, and even with this prohibition on all harvest, these states have continued to see declines.

The petition notes that river herring are not subject to the requirements and protections of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) because they are not currently managed under an FMP as a stock, and therefore, are not federally managed in regard to overfishing and depleted stocks under the MSA. Even though river herring are caught and sold as bycatch, and FMPs are meant to minimize bycatch, the NRDC asserts that any provisions in FMPs meant to address bycatch of river herring have proven to be ineffective and inadequate. NRDC further asserts that bycatch reporting is inadequate and limited and that there are currently no FMPs under the MSA that specifically address bycatch and bycatch mortality of river herring.

The NRDC notes that currently the Mid-Atlantic Fisheries Management Council (MAFMC) is developing two amendments to two separate FMPs that include proposals for improving the monitoring of bycatch of river herring in these fisheries; however, it asserts that it was unknown whether the bycatch monitoring measures for river herring would be included in the final amendment.

NRDC also indicates that under the MSA or the Atlantic Coast Fisheries Act, NMFS has the potential to initiate emergency rulemaking or other actions to reduce bycatch of river herring in small mesh fisheries, but has declined to do so thus far. NRDC further notes that NMFS has declined to take emergency rulemaking actions for bycatch of river herring in small-mesh fisheries in New England and the Mid-Atlantic.

Federally managed stocks are required to have essential fish habitat (EFH) designated under the MSA; however, since river herring are not considered a federally managed stock under the MSA, EFH has not been designated for this species. A provision under the 1996 amendments to the MSA provides for comments from regional councils on activities that may affect anadromous fish habitat; however, the NRDC asserts that this provision has not provided any significant modifications to activities affecting anadromous fish habitat.

In addition to fisheries, the petition indicates that Federal laws and regulations have also failed to protect river herring and their habitat from threats such as poor water quality, dredging, and altered water flows. The petition briefly describes the Clean Water Act (CWA), the Federal Power Act (FPA), and the Anadromous Fish Conservation Act, and identifies where these regulations present inadequacies that are failing to protect river herring. NRDC notes that the CWA should limit discharge of pollutants into navigable waters and that some progress has been made in terms of industrial sources. NRDC also concludes that the CWA has not “adequately regulated nutrients and toxic pollutants originating from non-point sources.” In addition, some permits for dredging and excavation require permitting from the Army Corps of Engineers, and NRDC notes that these may benefit river herring through placing restrictions on the timing and location of activities in river herring habitats. The FPA allows for protection of fish and wildlife that may be affected by hydroelectric facilities. As mentioned previously, NRDC asserts that fish passage at hydroelectric facilities can be inefficient, and the dams themselves affect water flow which can pose a significant threat to river herring. Thus, according to NRDC, FPA protections for river herring are inadequate. The NRDC further states that the Anadromous Fish Conservation Act does not require any measures for river herring that would improve habitat, reduce bycatch, or mitigate other threats to river herring, and therefore provides inadequate protection for the species. The NRDC notes that there are Federal protections that may benefit river herring which are intended for other anadromous species such as Atlantic salmon and shortnose sturgeon; however, it asserts that any benefits from these protections are minor and insufficient to fully protect river herring.

The petition describes other natural or manmade factors that may be affecting river herring, including invasive species, impingement, entrainment, and water temperature alterations. The petition states that invasive species may threaten food sources for alewives and blueback herring. ASMFC (2008) describes the negative effect zebra mussel introduction to the Hudson River had on phytoplankton and zooplankton, and subsequently water quality. According to ASMFC (2008), a decrease in both micro and macro zooplankton as well as phytoplankton improved water clarity and increased shallow water zoobenthos by 10 percent. Early life stages of river herring feed on zooplankton as well as phytoplankton (ASMFC, 2008). Strayer et al. (2004) hypothesized that the introduction of this invasive species created competition for availability of the preferred food source of early life stages of river herring, and found that larval river herring abundance decreased with increased zebra mussel presence. Thus, according to the petition, invasive species introduction and subsequent water quality changes which may affect plankton abundance can decrease the abundance of early life stages of river herring.

As described previously, the petition asserts that various life stages of river herring may be impinged or entrained through water intake structures from commercial, agricultural, or municipal operations. These intake structures alter flow, and may cause direct mortality to various life stages of river herring if they are impinged or entrained by the intake. In addition, aside from direct mortality, the petition asserts that intakes alter flow, which can affect water quality, temperature, substrate, velocity, and stream width and depth. NRDC suggests that these alterations can affect spawning migrations as well as spawning and nursery habitat, which could pose a significant threat to river herring.

Based on the above information, which indicates ongoing multiple threats to both species as well as potential declines in both species throughout their ranges, and the criteria specified in 50 CFR 424.14(b)(2), we find that the petition presents substantial scientific and commercial information indicating that the petitioned action concerning alewife and blueback herring may be warranted. Under section 4(b)(3)(A) of the ESA, this positive 90-day finding requires NMFS to commence a status review of the species. During our status review, we will review the best available scientific and commercial information, including the effects of threats and ongoing conservation efforts on both species throughout their ranges. Alewife and blueback herring are now considered to be candidate species (69 FR 19976; April 15, 2004). Within 12 months of the receipt of the petition (August 5, 2011), we will make a finding as to whether listing alewife and/or blueback herring as endangered or threatened is warranted, as required by section 4(b)(3)(B) of the ESA. If listing these species is not warranted, we will determine whether any populations of these species meet the DPS policy criteria (61 FR 4722; February 7, 1996), and if so, whether any DPSs are endangered or threatened under the ESA. If listing either species (or any DPS) is warranted, we will publish a proposed listing determination and solicit public comments before deciding whether to publish a final determination to list them as endangered or threatened under the ESA.

A complete list of the references used in this finding is available upon request (see ADDRESSES ).

To ensure the status review is based on the best available scientific and commercial data, we solicit information pertaining to alewife and blueback herring. Specifically, we solicit information in the following areas: (1) Historical and current distribution and abundance of these species throughout their ranges; (2) population status and trends; (3) any current or planned activities that may adversely impact these species, especially as related to the five factors specified in section 4(a)(1) of the ESA and listed above; (4) ongoing efforts to protect and restore these species and their habitat; and (5) any biological information (life history, morphometrics, genetics, etc.) on these species. We request that all information be accompanied by: (1) Supporting documentation such as maps and bibliographic references; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife Service, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). OMB issued its Final Information Quality Bulletin for Peer Review on December 16, 2004. The Bulletin became effective on June 16, 2005, and generally requires that all “influential scientific information” and “highly influential scientific information” disseminated on or after that date be peer reviewed. The intent of the peer review policy is to ensure that decisions are based on the best scientific and commercial data available. Independent peer reviewers will be selected to review the status review report from the academic and scientific community, tribal and other Native American groups, Federal and state agencies, the private sector, and public interest groups.

The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. 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. To further this goal, the Magnuson-Stevens Act requires fishery managers to specify their strategy to rebuild overfished stocks to a sustainable level within a certain time frame, and to minimize bycatch and bycatch mortality to the extent practicable. The reauthorized Magnuson-Stevens Act, as amended through January 12, 2007, requires the councils to establish ACLs for each stock/stock complex and AMs to ensure these ACLs are not exceeded. This proposed rule addresses these requirements for gag, red grouper, and the SWG complex.

Southeast Data, Assessment, and Review (SEDAR) update stock assessments were conducted for gag and red grouper in 2009. For gag, the assessment indicated the stock size had declined since 2005 and that a large part of the decline was attributed to a 2005 episodic mortality event (most likely associated with red tide). The update assessment indicated the gag stock was both overfished and undergoing overfishing. The Council was informed of this status determination in August 2009.

A rerun of the update assessment for gag was completed by the SEDAR update assessment review panel in December 2010. This rerun assessment identified issues with gag discards and was reviewed by the Council's Scientific and Statistical Committee (SSC) in January 2011. The rerun indicated the gag stock had improved from the 2009 update assessment; however, the improvement was not substantial enough to change the status of the gag stock. Based on the rerun, the Council requested a series of temporary rules to manage the gag stock until Amendment 32 could be implemented. The most recent temporary rule set the gag commercial quota to 430,000 lb (195,045 kg) and established a gag recreational season from September 16 through November 15 (76 FR 31874, June 2, 2011) and became effective June 1, 2011.

For red grouper, a 2009 SEDAR update assessment indicated that although the stock continues to be neither overfished nor undergoing overfishing, the stock has declined since 2005. In late 2010, after reviewing the rerun of the assessment update, the SSC recommended that the overfishing limit for red grouper be set at 8.10 million lb (3.67 million kg) (the equilibrium yield at F MSY (the fishing mortality associated with harvesting the maximum sustainable yield) and the ABC be set at 7.93 million lb (3.60 million kg) (the F associated with equilibrium optimum yield (F REBUILD )).

At the request of the Council, NMFS ran a new projection in 2011 that incorporated revised 2010 landings. Actual landings from 2010 were lower than projected, likely due to new longline restrictions implemented through Amendment 31 to the FMP (75 FR 21512, April 26, 2010) and disruptions in the fishery associated with the Deepwater Horizon oil spill that occurred in April 2010. The yield streams from this rerun showed that TAC could be increased in 2011. The Council has submitted a regulatory amendment for red grouper that, if approved, will increase the 2011 TAC and will set TAC through 2015 and subsequent fishing years, following F OY (fishing mortality associated with harvesting at the optimum yield stream as the stock rebuilds). The regulatory amendment also includes a provision to increase the red grouper bag limit.

The Council selected a 10-year rebuilding plan in Amendment 32 for gag. This is the maximum time frame allowed under the requirements of the Magnuson-Stevens Act. However, because the Council intends to manage the stock using the F OY yield stream, which results in more restrictive TACs than F REBUILD , the stock is projected to be rebuilt in 7 years. Given management uncertainties and uncertainties regarding stock assessment projections more than a few years in the future, a 10-year rebuilding plan would allow for fluctuations in catches and provide leeway to account for the needs of fishing communities when setting catch levels and management measures.

Based on protocols developed in Amendment 30B, sector-specific gag ACLs are derived from allocating the ABC between sectors.

The allocation of gag between the commercial and recreational sectors is 39 percent and 61 percent, respectively. This rule would implement ACLs for the gag commercial and recreational sectors based on this allocation. The ACLs would be set at the F REBUILD (the fishing mortality associated with the harvest needed to rebuild the stock). The ACTs (for the recreational sector only) would be set at the F OY (the fishing mortality associated with harvesting the optimum yield).

This rule would set the commercial gag ACLs at 0.788 million lb (0.357 million kg) for 2012, 0.956 million lb (0.434 million kg) for 2013, 1.100 million lb (0.499 million kg) for 2014, and 1.217 million lb (0.552 million kg) for 2015 and subsequent fishing years. For the recreational sector, this rule would set the ACLs at 1.232 million lb (0.599 million kg) for 2012, 1.495 million lb (0.678 million kg) for 2013, 1.720 million lb (0.780 million kg) for 2014, and 1.903 million lb (0.863 million kg) for 2015 and subsequent fishing years.

This rule would set the recreational ACTs for gag at 1.031 million lb (0.468 million kg) for 2012, 1.287 million lb (0.584 million kg) for 2013, 1.519 million lb (0.689 million kg) for 2014, and 1.708 million lb (0.775 million kg) for 2015 and subsequent fishing years. Recreational landings would be evaluated relative to the ACL based on a moving multi-year average of landings, as described in the FMP.

Reductions to the gag quota under the rebuilding plan assume a proportional reduction in dead discards of gag. However, due to the limited amount of gag IFQ allocation available in the initial years of the gag rebuilding plan, gag bycatch and discards from fishermen targeting red grouper or other fish may be higher than assumed in the assessment projections. Therefore, the Council determined the quota should be reduced from the ACT by 14 percent to account for additional dead discards not accounted for in the assessment analyses. Therefore, this rule would set the commercial gag quota at 0.567 million lb (0.257 million kg) for 2012, 0.708 million lb (0.321 million kg) for 2013, 0.835 million lb (0.378 million kg) for 2014, and 0.939 million lb (0.426 million kg) for 2015 and subsequent fishing years.

Reductions in the gag quota correspond to reductions in the SWG quota. Therefore, this rule would set the commercial SWG quota at 6.347 million lb (2.879 million kg) for 2012, 6.648 million lb (3.015 million kg) for 2013, 6.875 million lb (3.118 million kg) for 2014, 7.069 million lb (3.206 million kg) for 2015 and subsequent fishing years.

For red grouper, the protocols for setting sector-specific ACLs are similar to those for gag. The ABC recommended by the SSC is the equilibrium OY. This value was estimated at 7.93 million lb (3.60 million kg). Using the 76 percent commercial and 24 percent recreational allocation as established through Amendment 30B to the FMP (April 16, 2009, 74 FR 17603), this rule would set the commercial ACL at 6.03 million lb (2.735 million kg) and the recreational ACL at 1.90 million lb (0.862 million kg). The rule would set the recreational ACT at 1.730 million lb (0.785 million kg). Recreational landings would be evaluated relative to the ACL based on a moving multi-year average of landings, as described in the FMP. Red grouper commercial quotas and ACTs are being established through a separate regulatory amendment that is expected to become effective in late 2011.

Because the commercial SWG ACL is the sum of the commercial gag and red grouper ACLs, in addition to the 0.41 million lb (0.19 kg) of SWG allowance, the rule proposes to set the commercial SWG ACL at 8.04 million lb (3.65 million kg).

This proposed rule would modify the AMs for gag, red grouper, and SWG. AMs are intended to prevent ACLs from being exceeded or mitigate overages after ACLs have been exceeded. For the commercial sector, the current AMs were implemented through Amendment 30B to the FMP (74 FR 17603, April 16, 2009), before red grouper, gag and SWG were managed under an IFQ program. Therefore, AMs were triggered if the sector exceeded the respective species' quota. However, the IFQ program acts as an AM because the overall quota is divided among shareholders and the program includes controls that do not allow shareholders to exceed their individual allocation of the quota. To reduce redundancy in the commercial AMs, this rule proposes to eliminate the quota-based AM in favor of the existing IFQ program.

For the recreational sector, the current AMs pertain to red grouper and gag. The AMs restrict subsequent increases in future ACTs and ACLs if the current year's ACL is exceeded. The AMs also allow the Assistant Administrator for Fisheries (AA) to reduce the length of the following recreational SWG fishing season by the amount necessary to ensure recreational landings do not exceed the gag or red grouper ACT the following fishing year.

Current recreational AMs for gag and red grouper have no provisions for handling overages or in-season adjustments as authorized under the National Standard 1 guidelines (74 FR 3178, January 16, 2009). Overage adjustments are needed particularly for gag to follow guidance for stocks and stock complexes in rebuilding plans to include overage adjustments that reduce the ACLs in the next fishing year.

This rule would add an overage adjustment and in-season recreational AMs for gag and red grouper. Should gag or red grouper be in a rebuilding plan and the ACL exceeded, the overage adjustment would be equal to the full amount of the overage, unless the best scientific information available shows that a greater, lesser, or no overage adjustment is needed to mitigate the effects of the overage. In addition, the rule proposes that if gag or red grouper landings have met or are projected to exceed the ACL, as estimated by the Southeast Fisheries Science Center (SEFSC), without regard to overfished status, the AA would file a notification with the Office of the Federal Register closing the recreational harvest for the species projected to reach its ACL for the rest of the fishing year on the date the ACL is projected to be harvested.

In addition to these AMs, this rule proposes an AM for recreational red grouper that incorporates an adaptive management approach should the recreational sector exceed its ACL. A red grouper regulatory amendment, currently being reviewed by NMFS, includes a red grouper bag limit increase from two to four fish, within the four-fish aggregate grouper bag limit. The adaptive management AM would reduce the bag limit from four fish to three fish if, at the end of any season, it is determined that the recreational sector has exceeded the recreational red grouper ACL. The bag limit would be reduced from three fish to two fish if, at the end of any subsequent season, it is determined that the recreational sector has exceeded its ACL again. The minimum bag limit for red grouper would remain at two fish, regardless of whether the recreational sector exceeded the ACL in subsequent fishing years. Based on past annual landings, a two-fish bag limit is likely to be sufficient to avoid exceeding the recreational ACL.

The commercial grouper and tilefish fisheries are currently managed under an IFQ program implemented on January 1, 2010, through Amendment 29 to the FMP (74 FR 44732, August 31, 2009). To allow for flexibility and account for varying gag to red grouper ratios across the Gulf, at the beginning of each fishing year, a percentage of the gag and red grouper allocation is designated as multi-use allocation, valid for harvesting either gag or red grouper. Currently, 4 percent of the red grouper allocation and 8 percent of the gag allocation are designated as multi-use allocation. However, under the red grouper and gag ACLs proposed in this rule, the current multi-use allocations could result in commercial harvest of red grouper or gag exceeding its sector ACL. To prevent this from occurring, this rule proposes that if a stock is not under a rebuilding plan, the respective multi-use allocation would be based on the difference between the ACL and the ACT. If a stock is under a rebuilding plan, as with gag, then no multi-use allocation would be set aside. Therefore, red grouper multi-use allocation would be set to zero if gag is under a rebuilding plan. The equations used to determine multi-use allocation for gag and red grouper are as follows:

National Standard 9 dictates bycatch and the mortality of unavoidable bycatch should be minimized to the extent practicable. Because the commercial sector fishes in deeper waters on average than the recreational sector, it has a higher discard mortality rate. One possible way to reduce gag regulatory dead discards is to reduce the commercial minimum size limit so that gag that would have been discarded can be retained. To reduce gag discards, this rule would reduce the minimum size limit of gag from 24 inches (61 cm) to 22 inches (56 cm) TL. Until an IFQ shareholder's gag allocation is reached, this alternative is expected to reduce total gag discards (live plus dead) by 31 percent for the vertical line component of the Gulf reef fish fishery and by 27.8 percent for the longline component of the Gulf reef fish fishery. After an IFQ shareholder's gag allocation has been fished, all gag would be discarded. However, a commercial fisherman without IFQ allocation available to harvest gag would not specifically target gag and so the species would be encountered less frequently as fishermen target other stocks for harvest. An additional advantage of this measure is that it would simplify enforcement by having a single size limit for both sectors.

In determining the percentage reductions needed in total recreational gag removals (landed fish plus dead discards), the Council evaluated two baseline time periods: 2006-2008 when effort was high, and 2009 when effort was low. The needed reductions are between 36 percent and 61 percent depending on the baseline time period and F value used. In addition, different management strategies used to achieve reductions in the landed catch of gag change the number of discards and dead discards. Thus, the number of dead discards was taken into account in calculating the expected reductions from different management strategies.

In selecting a recreational management strategy, the Council favored achieving the longest fishing season for gag, while maintaining the current size and bag limits. Therefore, this rule proposes to set the gag fishing season from June 1 through October 31. The current two-gag bag limit within the four-fish grouper aggregate bag limit and 22-inch (56-cm) TL minimum size limit will remain unchanged.

This proposed rule also includes minor revisions to codified text to align existing language with new codified terminology. In § 622.49(a)(1) and (2), “commercial fishery” and “recreational fishery” would be revised to read “commercial sector” and “recreational sector”, and in § 622.49(a)(2)(ii), the last two sentences would be revised to a more generic statement to read, “Recreational landings will be evaluated relative to the ACL based on a moving multi-year average of landings, as described in the FMP.” These revisions are consistent with the terminology used in Amendment 32.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the AA has determined that this proposed rule is consistent with Amendment 32, 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 proposed rule. The IRFA describes the economic impact that this rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action 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. The preamble of this proposed rule provides a statement of the need for and objectives of this proposed rule, and it is not repeated here.

This rule is expected to directly affect commercial harvesting and for-hire operations. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including fish harvesters. A 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 $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For for-hire vessels, the other qualifiers apply and the receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

This rule is expected to directly affect commercial fishing vessels whose owners possess gag or red grouper fishing quota shares and for-hire fishing vessels that harvest gag. As of October 1, 2009, 970 entities owned a valid commercial Gulf reef fish permit and thus were eligible for initial shares and allocation in the grouper and tilefish IFQ program. Of these 970 entities, 908 entities initially received shares and allocation of grouper or tilefish, and 875 entities specifically received gag shares and an initial allocation of the commercial sector's gag quota in 2010. These 875 entities are expected to be directly affected by the actions to reduce the gag commercial quota to 86 percent of the ACT to account for dead discards, modify the percentages of red grouper and gag allocation that can be converted into multi-use allocation, and reduce the commercial size limit for gag. Of these 875 entities, 815 also received red grouper shares and an initial allocation of the commercial sector's red grouper quota in 2010.

Of the 875 entities that initially received gag shares, 215 were not commercially fishing in 2008 or 2009 and thus had no commercial fishing revenue during these years. On average, these 215 entities received an initial allocation of 874 lb (397 kg) of gag in 2010. Eight of these 215 entities also received a bottom longline endorsement in 2010. These 8 entities received a much higher initial allocation of gag in 2010, with an average of 3,139 lb (1,427 kg).

The other 660 entities that initially received gag shares and allocations in 2010 were active in commercial fisheries in 2008 or 2009. The maximum annual commercial fishing gross revenue in 2008 or 2009 by an individual vessel with commercial gag fishing quota shares was approximately $606,000 (2008 dollars).

The average charterboat is estimated to earn approximately $88,000 (2008 dollars) in annual gross revenue, while the average headboat is estimated to earn approximately $461,000 (2008 dollars). Based on these values, 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.

Of the 660 commercial fishing vessels with commercial landings in 2008 or 2009, 139 vessels did not have any gag landings in 2008 or 2009. Their average annual gross revenue in these 2 years was approximately $50,800 (2008 dollars). The vast majority of these vessels' commercial fishing revenue is from a combination of snapper, mackerel, dolphin, and wahoo landings. On average, in 2010, these vessels received an initial allocation of 540 lb (245 kg) of gag quota.

The remaining 521 commercially active fishing vessels did have landings of gag in 2008 or 2009. Their average annual gross revenue from commercial fishing was approximately $71,000 (2008 dollars) between the 2 years. On average, these vessels had 2,375 lb (1,080 kg) and 1,300 lb (591 kg) of gag landings in 2008 and 2009 respectively, or 1,835 lb (834 kg) between the 2 years. Gag landings accounted for approximately 8 percent of these vessels' annual average gross revenue, and thus they are somewhat, though not significantly, dependent on revenue from gag landings. These vessels' average initial gag allocation in 2010 was 2,121 lb (964 kg). Therefore, on average, their 2008 gag landings were very near their 2010 gag allocation, but their 2009 gag landings were considerably less than their 2010 allocation.

Of these 521 vessels, 52 vessels also received a bottom longline endorsement in 2010. These particular vessels' average annual revenue was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue from gag landings decreased from approximately $15,900 to $8,400 in 2009 and thus they became relatively less dependent on gag landings. These vessels are highly dependent on revenue from red grouper landings, which accounted for 54 percent and 47 percent of their gross revenue in 2008 and 2009, respectively. Revenue from deep-water grouper (DWG) landings decreased only slightly, from approximately $36,000 in 2008 to $31,000 in 2009, and thus these vessels became relatively more dependent on revenue from DWG landings. Their average initial 2010 allocation of gag was approximately 5,507 lb (2,503 kg) while their average gag landings were 3,933 lb (1,788 kg) and 2,204 lb (1,002 kg) in 2008 and 2009, respectively. Thus, vessels that now have a bottom longline endorsement have been harvesting well below that allocation in recent years, particularly in 2009.

The for-hire fleet is comprised of charter vessels, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The harvest of gag in the exclusive economic zone (EEZ) by for-hire vessels requires a charter vessel/headboat permit for Gulf reef fish. On March 23, 2010, there were 1,376 valid or renewable for-hire Gulf reef fish permits. A valid permit is a non-expired permit. Expired reef fish for-hire permits may not be actively fished, but are renewable for up to 1 year after expiration. Because of the extended permit renewal period, numerous permits may be expired but still renewable at any given time of the year during the renewal period after the permit's expiration. The majority (823, or approximately 60 percent) of the 1,376 valid or renewable permits were registered with Florida addresses. The registration address for the Federal permit does not restrict operation to Federal waters off that state; however, vessels would be subject to any applicable state permitting requirements. Although the permit does not distinguish between headboats and charter vessels, it is estimated that 79 headboats operate in the Gulf. The majority of these vessels (43, or approximately 54 percent) operate from Florida ports. Given that nearly 99 percent of target effort for gag and 97 percent of the economic impacts from the recreational sector for gag in the Gulf reef fish fishery are in west Florida, it is assumed that the 823 for-hire vessels (780 charter vessels and 43 headboats) in Florida are expected to be directly affected by the proposed action to establish a recreational gag fishing season of July 1 through October 31.

Establishing a rebuilding plan for gag not expected to generate direct, adverse economic effects on commercial or for-hire entities. Thus, the proposed action to establish a rebuilding plan for gag that would rebuild the gag stock to a level consistent with producing maximum sustainable yield in 10 years or less is not expected to reduce profits for commercial or for-hire entities.

Net operating revenues (NOR) are assumed to be representative of profit for for-hire vessels. It is assumed that 823 for-hire vessels, 780 charter vessels, and 43 headboats, participate in the recreational gag component of the Gulf reef fish fishery. Estimates of NOR from recreational fisheries other than gag, and thus across all fisheries in which these charter vessels and headboats participate, are not currently available. However, on average, NOR for charter vessels from trips targeting gag are estimated to be approximately $1.56 million per year while NOR for headboats from trips targeting gag are estimated to be $91,300 per year. NOR for all trips targeting gag are estimated to be approximately $1.65 million per year. The average annual NOR from trips targeting gag are estimated to be $2,000 per charter vessel and $2,124 per headboat.

When the length of the recreational gag season is reduced and the daily bag limit for gag is set at zero, some trips that formerly targeted gag will instead target other species while other trips that formerly targeted gag will be cancelled. Assuming the NOR per trip is constant regardless of the species targeted, for-hire operators will only lose NOR from trips cancelled as a result of the shortened season length. Information regarding the number of trips cancelled as a result of the shortened season is not currently available. Thus, this analysis assumes all of the current for-hire trips targeting gag will be cancelled when the recreational sector is closed. Because some of these trips would probably not be cancelled, this assumption is expected to overestimate the actual reduction in NOR associated with a shorter season. Thus, the following estimates of losses in NOR and profit for charter vessels and headboats should be considered maximum values.

Under the proposed action to establish a recreational gag fishing season of July 1 through October 31, the losses in NOR from trips targeting gag for charter vessels and headboats are estimated to be approximately $1,304,000 and $76,000, respectively, and thus NOR for all trips targeting gag is estimated to be approximately $1,380,000. The average annual losses in NOR from trips targeting gag are estimated to be $1,672 and $767 per charter vessel and headboat, respectively. These NOR losses represent a loss in profit from trips targeting gag of approximately 84 percent and 36 percent per charter vessel and headboat, respectively.

The proposed action to establish a recreational gag fishing season of July 1 through October 31 is not expected to affect profit from trips not targeting gag for charter vessels and headboats. For-hire vessel dependence on fishing for individual species cannot be determined with available data. Although some for-hire vessels are likely more dependent on trips that target gag than other for-hire vessels, overall, about 3 percent of for-hire anglers are estimated to target gag. As a result, while the action would be expected to substantially affect the NOR derived from gag trips, overall, gag trips do not comprise a substantial portion of total for-hire trips nor would they, by extension, be expected to account for a substantial portion of total for-hire NOR.

Under the proposed action to increase the recreational bag limit for red grouper from two fish to four fish, the number of trips in all recreational fishing modes is assumed to remain the same regardless of any change in the red grouper bag limit. As such, no changes to producer surplus in the for-hire sector are expected. Thus, the proposed action is not expected to reduce profits for for-hire entities.

The 215 entities with gag shares that did not participate in commercial fishing in 2008 or 2009 have no commercial fishing revenue and did not earn profit from commercial fishing in those 2 years. Under the proposed action to reduce the commercial gag quota to 86 percent of the ACT to account for dead discards, their average allocation of gag in 2012 would be reduced from 421 lb (191 kg) to 362 lb (165 kg), or by approximately 59 lb (27 kg). Using the average 2008 price of $3.52 per lb, this loss in allocation could potentially represent a loss of nearly $208 (2008 dollars) in gross revenue per entity. Using the 2010 average price of $1.00 per lb of gag allocation, this loss in allocation could potentially represent a loss of $59 (2008 dollars) in net revenue per entity. For 8 of these 215 entities that also possess longline endorsements, their average allocation of gag in 2012 would be reduced from 1,512 lb (687 kg) to 1,300 lb (591 kg), or by 212 lb (96 kg). Thus, their potential losses in gross revenue and net revenue, estimated to be $746 and $212 (2008 dollars) respectively, are expected to be somewhat higher.

However, in general, these potential losses in gross revenue and net revenue would only be realized if these 215 entities not only become active in commercial fishing but also specifically intend to harvest gag in 2012 and at a level above their reduced allocation. That is, a reduction in allocation can only lead to a reduction in landings, and thus gross revenue, if these entities intend to harvest at levels above their reduced allocation. Alternatively, these losses in gross and net revenue could be due to these entities' inability to sell the allocations they are losing under the proposed action, though this possibility presumes that a demand for these allocations exists. Regardless, the significance of these potential losses in gross and net revenue to these 215 entities cannot be evaluated given the lack of information on potential gross revenue, net revenue, and profits from commercial fishing in general and specifically for gag.

Similarly, for the 139 entities with gag shares that participated in commercial fisheries other than gag, they earned approximately $50,800 in annual gross revenue on average in 2008 and 2009. Profit estimates for these vessels are not currently available. However, because they did not have any gag landings, none of their gross revenue and thus none of their potential profits were the result of gag harvests. Under the proposed action to reduce the commercial gag quota to 86 percent of the ACT to account for dead discards, their average allocation of gag in 2012 would be reduced from 260 lb (118 kg) to 224 lb ((102 kg), or by 36 lb (16 kg). Using the average 2008 price of $3.52 per lb, this loss in allocation could potentially represent a loss of $127 (2008 dollars) in gross revenue per entity. Using the 2010 average price of $1.00 per lb of gag allocation, this loss in allocation could potentially represent a loss of approximately $36 (2008 dollars) in net revenue per entity.

However, these potential losses in gross and net revenue could only lead to a loss in profits if these 139 entities intend to commercially harvest gag in 2012 and at a level above their reduced allocation. That is, a reduction in allocation can only lead to a reduction in landings if these entities intend to harvest at levels above their reduced allocation. Thus, for example, if these vessels intended to harvest gag in 2012 at a level equivalent to their 2012 allocation, and this harvest was in addition to, rather than in place of, their recent commercial fishing activities, the reduction in allocation could lead to a maximum loss of approximately .3 percent in gross revenue, which could in turn reduce net revenue and profits. Alternatively, losses in gross and net revenue could be due to these entities' inability to sell the allocations being lost under the proposed action, though this possibility presumes that a demand for these allocations exists.

The 521 entities with gag shares that commercially harvested gag in 2008 or 2009 earned approximately $71,000 (2008 dollars) in annual gross revenue on average in 2008 and 2009. Profit estimates for these vessels are not currently available. However, gag landings accounted for approximately 8 percent of these vessels' annual average gross revenue, and thus they are somewhat but not significantly dependent on revenue from gag landings. Under the proposed action to reduce the commercial gag quota to account for dead discards, these vessels' 2012 gag allocations would be reduced from 1,022 lb (465 kg) to 879 lb (400 kg), or 143 lb (65 lb) on average. As these vessels have been harvesting at levels near their 2010 allocation in recent years on average, this reduction in gag allocation is likely to lead to an equivalent reduction in gag landings and therefore gross revenue. Using the average 2008 price of $3.52 per lb, it is estimated that these vessels could lose nearly $503 (2008 dollars), or approximately .7 percent, in annual gross revenue on average. Using the 2010 average price of $1.00 per lb of gag allocation, this loss in allocation would represent a loss of $503 (2008 dollars) in net revenue per entity. Since net revenue is assumed to be representative of profits for commercial vessels, these vessels are expected to experience a reduction in profits.

However, 52 of these 521 vessels also received a bottom longline endorsement in 2010. These particular vessels' average annual gross revenue was approximately $156,000 (2008 dollars) in 2008 and 2009, with gag landings accounting for approximately 8 percent of that gross revenue. These vessels are highly dependent on revenue from red grouper rather than gag landings. Under the proposed action to reduce the commercial gag quota, their allocation of gag in 2012 would decrease from 2,749 lb (1,250 kg) to 2,364 lb (1075 kg), or by 385 lb (175 kg). As these vessels have harvested at levels near their 2010 allocation in recent years on average, this reduction in gag allocation is likely to lead to an equivalent reduction in gag landings and therefore gross revenue. Using the average 2008 price of $3.52 per lb, it is estimated that these vessels could lose $1,355 (2008 dollars), or approximately .9 percent, in annual gross revenue on average. Using the 2010 average price of $1.00 per lb of gag allocation, this loss in allocation would represent a loss of approximately $1,355 (2008 dollars) in net revenue per entity. Since net revenue is assumed to be representative of profits for commercial vessels, these vessels are expected to experience a reduction in profits.

No additional economic effects would be expected to result from the revised SWG quota because the updated SWG quota simply reflects the reduction in the commercial gag quota, the effects of which have already been discussed.

Given the proposed action to establish a rebuilding plan for gag, the conversion of red grouper allocation into multi-use allocation valid toward the harvest of red grouper or gag would be suspended under the proposed action to modify the percentages of red grouper and gag allocation that can be converted into multi-use allocation. Because red grouper is not under a rebuilding plan at this time, gag shareholders would be allowed to convert 8 percent of their gag allocation into multi-use allocation and thus no adverse economic effects are expected. However, minimal adverse economic effects are expected as a result of commercial fishing entities not being allowed to convert 4 percent of their red grouper allocation into multi-use allocation. Multi-use allocation that has been converted from red grouper allocation can only be used to possess, land, or sell gag after an entity's gag and gag multi-use allocation has been landed, sold, or transferred. Given the proposed reduction in the commercial gag quota due to dead discards, it is possible these entities will exhaust their gag and gag multi-use allocations. Gross revenue from gag landings is greater than gross revenue from an equivalent amount of red grouper landings because gag commands a relatively higher market price. Thus, gross revenue from commercial fishing and therefore profits per vessel could be slightly lower than if the conversion were allowed to continue.

Under the proposed action to reduce the commercial size limit for gag from 24 inches (61 cm) to 22 inches (56 cm) total length, commercial fishing entities would be allowed to retain more and discard less of the gag they catch and thus are expected to be economically better off relative to the status quo. However, if commercial fishermen prefer to harvest larger gag due to a higher market demand for larger fish, then additional high-grading may be possible because the commercial sector is managed under the IFQ program. As such, few additional gag may be retained and thus the potential increases in gross revenue, net revenue, and profits per vessel are likely minimal.

Establishing AMs is not expected to generate direct, adverse economic effects on commercial or for-hire entities. Direct, adverse economic effects would only occur if and when the AMs are actually triggered. This action would replace current AMs established under Amendment 30B to the FMP with the current IFQ program because an IFQ functions as an AM. This action would also add an overage adjustment and an in-season closure to the current AMs for the recreational sector when the gag or red grouper stocks are overfished and under a rebuilding plan. Because red grouper is not overfished or under a rebuilding plan, this action does not currently apply to the red grouper component of the reef fish fishery. The action to establish a recreational fishing season of July 1 through October 31 for gag is expected to restrain landings in the gag recreational sector well below its 2012 ACL, and in fact is intended and expected to constrain landings below the 2012 recreational annual catch target. In turn, the probability an overage adjustment or in-season closure will be required in 2013 is also minimal. Thus, the proposed action to establish new AMs for the commercial and recreational sectors of the gag, red grouper, and SWG component of the reef fish fishery is not expected to reduce profits for commercial or for-hire entities.

Three alternatives, including the status quo, were considered for the action to establish a rebuilding plan for gag that would rebuild the gag stock to a level consistent with producing maximum sustainable yield in 10 years or less. In the absence of all fishing mortality, including bycatch mortality, the shortest possible time in which the gag stock can rebuild is 5 years. Under the National Standard 1 guidelines, the maximum time allowed for rebuilding the gag stock is 10 years. In the Generic ACL/AM Amendment, currently under development, the proposed ACLs are based on yields that are projected to rebuild the stock in 10 years, while the proposed ACTs are based on yields that are projected to rebuild the stock in 7 years.

The first alternative, the status quo, would not have established a rebuilding plan for gag. The fishing mortality rate for gag has shown an increasing trend over time and fishing mortality rates in recent years are not consistent with rebuilding or maintaining the gag stock at its maximum sustainable yield level. Moreover, because the gag stock has been determined to be overfished and undergoing overfishing, this alternative does not comply with Magnuson-Stevens Act requirements regarding rebuilding plans.

The second alternative would have established a rebuilding plan that would rebuild the gag stock to a level consistent with producing maximum sustainable yield in 7 years or less. Seven years is the estimated time to rebuild if the stock is managed at F OY rather than the rate corresponding to a 10-year rebuilding plan (F rebuilding ). Although the yields under a 7-year rebuilding plan would eventually catch up to those for a 10-year plan, the initial catch targets in the early years would be smaller under a 7-year rebuilding plan relative to a 10-year rebuilding plan. Thus, this alternative would potentially imply more restrictive regulations and thus more adverse indirect economic effects in the short-term relative to the proposed action.

The third alternative would have established a rebuilding plan that would rebuild the gag stock to a level consistent with producing maximum sustainable yield in 5 years. If this alternative were adopted, strong measures to reduce bycatch of gag in other fisheries would also need to be considered. Because a total elimination of discard mortality is unlikely to be achieved, this alternative would likely result in the stock being slightly under the rebuilding target at the end of 5 years. Most importantly, this alternative would require a complete closure of the gag component of the reef fish fishery for at least 5 years. Therefore, this alternative would eliminate all net revenue from the commercial sector and all consumer and producer surplus from the recreational sector for at least 5 years and, as such, would lead to the most restrictive regulations and, thus, considerably greater adverse indirect economic effects in the short-term relative to the proposed action.

Four alternatives, including the status quo, were considered for the action to establish a recreational gag fishing season of July 1 through October 31. The first alternative, the status quo, would maintain a year-round gag recreational fishing season, with the exception of the current February 1 through March 31 closed season for SWG. This alternative would be expected to result in a 14 percent reduction in gag removals relative to the 2006-2008 baseline and a 1 percent increase in gag removals relative to the 2009 baseline. As such, this alternative does not achieve the necessary reduction in removals to rebuild the gag stock, contrary to the Council's goals and objectives and Magnuson-Stevens Act requirements.

The second alternative, which would establish a gag recreational season of September 16 through November 15, would reduce gag removals by 60 percent relative to the 2009 baseline, which exceeds the annual catch target reduction of 47 percent. Relative to the 2006-2008 baseline, this alternative also reduces removals by 60 percent. Therefore, this alternative does not fully meet the annual catch target of 61 percent relative to the 2006-08 baseline, but does exceed the ACL and rebuilding yield reduction level of 53 percent. This alternative is more conservative biologically than the proposed action, but only allows a 61-day fishing season as opposed to the 123-day fishing season allowed under the proposed action.

The third alternative, which would establish a gag recreational season of January and April, would reduce removals by 52 percent, which exceeds the annual catch target reduction of 47 percent. Relative to the 2006-2008 baseline, this alternative reduces removals by 56 percent. This alternative does not fully meet the annual catch target of 61 percent relative to the 2006-2008 baseline, but it does exceed the ACL and rebuilding yield reduction level of 53 percent. This alternative is similar to the second alterative in that it allows 61 days of fishing, and thus is shorter than the 123-day fishing season allowed under the proposed action, but it splits the season into two segments to provide more fishing opportunities. Biologically, this alternative is as conservative as the proposed action.

The fourth alternative would establish the same gag recreational season of July 1 through October 31 as the proposed action. However, rather than maintain the current 22 inch (56 cm) recreational minimum size limit, it would implement a 22-30 inch (56-76 cm) slot limit. Although this alternative would achieve a larger reduction in removals relative to the proposed action, a larger percentage of those removals would consist of dead discards. Furthermore, a portion of those additional dead discards would consist of larger fish above the slot limit. These larger fish produce more eggs in spawning season. Thus, this alternative could negatively impact the spawning potential ratio and in turn the rate of rebuilding.

Two alternatives, including the status quo, were considered for the action to increase the recreational bag limit for red grouper from two fish to four fish. The first alternative, the status quo, would retain the current recreational bag limit for red grouper of two fish. The recreational ACL for red grouper has not been met in recent years. Recreational red grouper landings averaged less than 1 million lb (454,545 kg) between 2006 and 2009. With the planned increase in the red grouper TAC through a regulatory amendment currently under development, the recreational ACL would be increased from 1.51 million lb (686,364 kg) to 1.72 million lb (781,818 kg), which would create a larger difference between the ACL and the expected catch in 2012, and additional increases in the red grouper recreational ACL are planned through 2016. This alternative would not allow for-hire entities to increase their landings per trip even though the recreational sector's harvest has been and is expected to be well below its allocation. As such, opportunities to increase the economic value of red grouper harvests in the recreational sector would be unnecessarily foregone.

The second alternative would increase the recreational bag limit for red grouper from two fish to three fish. This alternative would allow for-hire entities to increase their landings per trip, but would not enhance their opportunities to increase the economic value of red grouper harvests to the same extent as the proposed action. Such opportunities should be enhanced as much as possible given the large difference between the recreational sector's ACL and the expected catch under the current bag limit. Like the proposed action, this alternative includes an adaptive feedback mechanism that would adjust the bag limit if the recreational sector exceeds its ACL, though it would not be a two-stage process as under the proposed action.

Two alternatives, including the status quo, were considered for the action to reduce the gag commercial quota to 86 percent of the ACT to account for dead discards. The first alternative, the status quo, would not adjust the gag commercial quota to account for dead discards. This alternative would set the gag commercial quota at the current ACT. The ACT assumes dead discards in the commercial sector will be reduced by the same proportion as landings. If this assumption is not valid, then total removals of gag will exceed the harvest levels projected in the assessment. The ACT provides a buffer against reaching the ACL, but this buffer may not be sufficient to offset increased removals due to dead discards.

The second alternative would reduce the gag commercial quota to 47 percent of the ACT to account for dead discards. This alternative represents the worst case scenario, under which dead discards are assumed to remain at their 2006-2008 level. Analyses associated with the 2011 gag interim rule indicated that, if dead discards remain at their 2006-2008 levels, the gag commercial quota would need to be reduced to 47 percent of the ACT in order to compensate for the increased removals. Although this alternative would provide the greatest allowance for dead discards and, thus, the highest likelihood of rebuilding the gag stock successfully, it is based on the unlikely assumption that dead discards will remain at their 2006-2008 levels. Longline vessels have historically landed about 34 percent of the commercial gag harvest. As a result of the longline endorsement requirements implemented in 2010, the number of reef fish longline vessels has decreased substantially. Of the 908 initial grouper/tilefish shareholders in 2010, 293 vessels used bottom longline or trap gear for commercial reef fish harvesting purposes between 1999 and 2007. However, only 62 of these vessels qualified for the bottom longline endorsement. Given the substantial reduction in the number of longline vessels, dead discards are expected to be considerably less now and in the future compared to their 2006-2008 levels. As such, reducing the gag commercial quota to 47 percent of the ACT would unnecessarily impose more significant economic and social impacts on commercial harvesters and associated communities relative to the proposed action.

Two alternatives, including the status quo, were considered for the action to modify the percentage of red grouper allocation that can be converted into multi-use allocation if a rebuilding plan for gag is in effect. The first alternative, the status quo, would allow 4 percent of the red grouper allocation to be converted into multi-use allocation at the beginning of each year. Under this alternative, the amount of red grouper multi-use allocation could exceed the available gag commercial quota, thereby leading to harvests that exceed the ACL. Such a result is contrary to the purposes of the action to establish a rebuilding plan for gag that would rebuild the gag stock to a level consistent with producing maximum sustainable yield in 10 years or less and is therefore inconsistent with Magnuson-Stevens Act requirements and National Standard 1 guidance.

The second alternative would base the amount of red grouper multi-use allocation on the buffer between the gag ACL and ACT. Subsequent ACLs and ACTs may be set by the ACL/ACT control rule adopted in the Generic ACL/AM Amendment. Although a control rule has not been adopted yet, the alternatives currently under consideration would have little or no buffer for IFQ fisheries, which would render this alternative unusable. Furthermore, the gag ACL is set at the level where there is only a 50-percent probability of meeting the target to rebuild the gag stock in 10 years or less. Thus, this alternative will reduce the probability of the rebuilding plan being successful.

One alternative, the status quo, was considered for the action to modify the percentage of gag allocation that can be converted into multi-use allocation if a rebuilding plan for red grouper is in effect. Under this alternative, 8 percent of the gag allocation would be converted into multi-use allocation. If a rebuilding plan for red grouper was necessary in the future, this alternative could result in red grouper harvests that would exceed the commercial ACL in the future, which would in turn trigger AMs and reduce the ability of the red grouper stock to rebuild.

Three alternatives, including the status quo, were considered for the action to reduce the commercial gag minimum size limit from 24 inches (61 cm) to 22 inches (56 cm) in TL. The first alternative, the status quo, would maintain the commercial gag minimum size limit at 24 inches (61 cm) TL. The size at 50 percent female maturity is approximately 24 inches (61 cm) TL. Under this alternative, regulatory discards due to the minimum size limit would continue at the current rate, which is contrary to the Council's goal of reducing gag discards.

The second alternative would reduce the commercial gag minimum size limit from 24 inches (61 cm) to 20 inches (51 cm) TL. Until a commercial fisherman's IFQ allocation is reached, this alternative is expected to reduce total gag discards by 62 percent for the vertical line component of the commercial sector and by 47.2 percent for the longline component. At the same time, the number of gag needed to fill an IFQ allocation is expected to increase by 29.7 percent for the vertical line component and by 0.9 percent for the longline component. This alternative has a greater likelihood of creating a price differential by size, which would in turn likely result in additional high-grading as fishermen attempt to maximize the economic return on their IFQ shares. Additional high-grading would lead to higher rather than lower levels of gag discards, which is contrary to the Council's goals.

The third alternative would eliminate the minimum size limit and thus would effectively require all commercially caught gag be retained regardless of size. As a result, this alternative also effectively requires that each commercial fisherman possess sufficient gag allocation to cover all harvest of gag. Grouper sizes in the commercial sector have been recorded as small as 11 inches (28 cm) prior to the implementation of size limits, but the numbers landed are few below 18 inches (46 cm). At a minimum size limit of 18 inches (46 cm), the expected reduction in total gag discards is 79.9 percent for the vertical line component and 66.7 percent for the longline component. At the same time, the increase in number of gag needed to fill an individual's allocation of gag is expected to be 38.2 percent for the vertical line component and 1.3 percent for the longline component. At minimum size limits less than 18 inches (46 cm), these values will change little because both gears become less selective for gag at smaller sizes. To the extent a market demand for larger fish exists, this alternative is likely to create a price differential for larger size fish. Given the limited amount of gag allocation expected to be distributed under the proposed gag commercial quota, this alternative could encourage high-grading by commercial fishermen, which would lead to higher rather than lower levels of gag discards, contrary to the Council's goals.

Four alternatives, including the status quo, were considered for the action to expand the current time and area closures off the west coast of Florida. The first alternative would expand the current closed areas of Madison-Swanson and the Edges by approximately 70 square miles (181 square km). Four options were considered under this alternative. The first option would prohibit all fishing from November 1 through April 30, but allow surface trolling from May 1 through October 31. The second option would prohibit all fishing from November 1 through April 30, but allow all fishing from May 1 through October 31. The third option would prohibit all fishing from January 1 through April 30, but allow all fishing from May 1 through December 31. The fourth option would prohibit all fishing year-round. The percentage of gag and red grouper commercial landings coming from this area ranges from 0.55 percent for gag and 0.06 percent of red grouper under the third option to 1.25 percent and 0.39 percent for gag and red grouper respectively under fourth option. These numbers indicate it is unlikely that gag and particularly red grouper are being targeted in this area. Thus, the expected reduction in gag bycatch is relatively small and, thus, so are the biological benefits.

The second alternative would expand the current closed areas of Madison-Swanson and the Edges by approximately 244 square miles (632 square km). Four options were considered under this alternative. The first option would prohibit all fishing from November 1 through April 30, but allow surface trolling from May 1 through October 31. The second option would prohibit all fishing from November 1 through April 30, but allow all fishing from May 1 through October 31. The third option would prohibit all fishing from January 1 through April 30, but allow all fishing from May 1 through December 31. The fourth option would prohibit all fishing year-round. Gag bycatch is expected to increase as a result of the proposed action to reduce the gag commercial quota and the resulting reduction in the gag to red grouper quota ratio. The percentage of gag and red grouper commercial landings coming from this area ranges from 3.23 percent for gag and 0.26 percent of red grouper under the third option to 5.92 percent and 0.93 percent for gag and red grouper respectively under fourth option. If this alternative was selected, by limiting where recreational fishermen may fish, the adverse economic and social effects incurred as a result of the proposed recreational fishing season for gag would be amplified, particularly under the fourth option. Furthermore, the Council determined that these additional adverse economic and social effects on the recreational sector outweighed the biological benefits to the gag stock.

The third alternative would modify the seasonal closure dates of The Edges 40 fathom contour area, which is approximately 390 square miles (1,010 square km) in size and currently prohibits all fishing from January 1 through April 30 and allows all fishing from May 1 through December 31. Four options were also considered under this alternative. The first option would prohibit all fishing from November 1 through April 30, but allow surface trolling from May 1 through October 31. The second option would prohibit all fishing from November 1 through April 30, but allow all fishing from May 1 through October 31. The third option would prohibit all fishing from January 1 through April 30, but allow all fishing from May 1 through December 31. The fourth option would prohibit all fishing year-round. This alternative would close a larger area than the other alternatives that would expand the existing closures. Because The Edges 40 fathom contour area is relatively large, the percentage of gag and red grouper commercial landings coming from it is greater than under the other alternatives that would expand the existing closures, ranging from 4.13 percent for gag and 0.57 percent of red grouper under the third option to 8.92 percent and 2.41 percent for gag and red grouper respectively under fourth option. Thus, the expected reduction in gag bycatch is greater than under the other alternatives that would expand the existing time/area closures. If this alternative was selected, by limiting where recreational fishermen may fish, the adverse economic and social effects incurred as a result of the proposed recreational fishing season for gag would be amplified, particularly under the fourth option. Furthermore, the Council determined that these additional adverse economic and social effects on the recreational sector outweighed the biological benefits to the gag stock.

The fourth alternative would modify the seasonal closure dates for the Madison Swanson and Steamboat Lumps closed areas, which cover approximately 219 square miles (567 square km). At present, these closures prohibit all fishing from November 1 through April 30, but allow surface trolling for species other than reef fish from May 1 through October 31. The first option would prohibit all fishing from November 1 through April 30, but allow surface trolling from May 1 through October 31. The second option would prohibit all fishing from November 1 through April 30, but allow all fishing from May 1 through October 31. The third option would prohibit all fishing from January 1 through April 30, but allow all fishing from May 1 through December 31. The fourth option would prohibit all fishing year-round. Because Madison Swanson and Steamboat Lumps have been closed to reef fish fishing for an extended time period, no data is available to determine how much harvesting activity may occur in these areas. As such, it is not possible to determine the potential effects from closing them for a longer time period and, thus, considerable uncertainty exists regarding those potential effects. However, it is highly likely the biological benefits to the gag stock would be minimal at best.

One alternative, the status quo, was considered for the action to replace the current AMs for the commercial sector of gag, red grouper, and the SWG component of the reef fish fishery with the IFQ program. By retaining the current AMs, this alternative would close the commercial SWG sector if commercial landings of red grouper, gag, or SWG reach or are projected to reach their respective quotas. As such, these measures are inconsistent with the Council's management goals and objectives for the commercial sector of the reef fish fishery, as reflected by the IFQ program. Furthermore, concerns regarding the need for additional AMs appear to be unfounded given that, to this point, commercial landings have been less than the quotas for all individual species and species complexes managed under the IFQ program.

Three alternatives, including the status quo, were considered for the action to establish additional AMs for the recreational harvest of gag and red grouper. The first alternative, the status quo, would retain the existing AMs for the recreational harvest of gag and red grouper. The current AMs do not include in-season management measures or an overage adjustment if either the gag or red grouper stocks are determined to be overfished. The gag stock is currently overfished. Thus, this alternative would allow the recreational ACLs to be exceeded before taking action, which could have short-term negative effects on the red grouper stock and particularly the gag stock. These additional AMs are recommended by the National Standard 1 guidance and are currently being considered by the Council for the management of other reef fish species in the Generic ACL amendment.

The second alternative would add an overage adjustment to the existing AMs if gag or red grouper are determined to be overfished. This alternative would provide some benefit to the gag and red grouper stocks if they are under a rebuilding plan. The Council is proposing an action to establish a rebuilding plan for gag, and, thus, this alternative would be expected to apply immediately to the gag recreational sector. If the recreational ACL is exceeded, the overage adjustment would mitigate any damage done to a stock's recovery by reducing the ACL for the following year by the size of the overage or by some other level depending on what the best available science indicates will place the stock back on its rebuilding path. However, relative to the proposed action, this alternative would not allow in-season closures as a result of projections indicating the recreational sector will exceed its red grouper or gag ACL. Thus, this alternative would allow the recreational ACLs to be exceeded before taking action, which could have short-term negative effects on the red grouper stock and particularly the gag stock.

The third alternative would add in-season AMs to the existing AMs that would allow the gag or red grouper recreational fishing seasons to close early if necessary. This alternative would provide some benefit to the gag and red grouper stocks. However, this alternative does not add an overage adjustment as per National Standard 1 guidance. Moreover, by not requiring an overage adjustment, this alternative would allow overages to occur from one year to the next if the in-season closures are implemented after the ACL has been exceeded. If these overages consistently occur over time, the cumulative effect could be sufficient to preclude rebuilding if a stock is under a rebuilding plan. As such, this alternative is not as beneficial to the red grouper and gag stocks as the proposed action.

This proposed rule does not establish any new reporting, recordkeeping, or other compliance requirements.

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