History

On February 21, 2012, the FAA published in the Federal Register a final rule amending Class E airspace at City of Colorado Springs Municipal Airport, Colorado Springs, CO (77 FR 9840). Airspace reconfiguration is necessary due to the decommissioning of the Black Forest Tactical Air Navigation System. This rule was originally scheduled to become effective May 31, 2012; however, a need for additional internal processing requires a delay in the effective date until September 20, 2012.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at City of Colorado Springs Municipal Airport, Colorado Springs, CO.

The effective date on Airspace Docket No. 11-ANM-21, published in the Federal Register on February 21, 2012 (77 FR 9840), is hereby delayed from May 31, 2012, to September 20, 2012.

Jefferson Parish has requested a temporary deviation from the operating schedule for the Lapalco Boulevard Bridge across the Harvey Canal Route, Intracoastal Waterway, mile 2.8 at New Orleans, Jefferson Parish, Louisiana. The bridge has a vertical clearance of 45 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position; however, during the deviation time periods, the vertical clearance beneath the bridge will be reduced to 35 feet above mean high water.

In accordance with 33 CFR 117.451(a), the bridge currently opens on signal for the passage of vessels; except that, from 6:30 a.m. to 8:30 a.m. and from 3:45 p.m. to 5:45 p.m. Monday through Friday except holidays, the draw need not be opened for the passage of vessels. This deviation allows the bridge to remain closed to navigation from 6 p.m. on Friday, June 22, 2012 until 6 a.m. on Monday, June 25, 2012 and from 6 p.m. on Friday, June 29, 2012 until 6 a.m. on Monday, July 2, 2012. At all other times, the bridge will open on signal for the passage of vessels in accordance with 33 CFR 117.451(a).

The closure is necessary in order to remove and replace the span lock systems. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.

Navigation on the waterway consists mainly of tugs with tows with some commercial fishing vessels and recreational craft. Coordination between the Coast Guard and the waterway users determined that there should not be any significant effects on these vessels. An alternate route is available via the GIWW (Algiers Alternate Route). The bridge can open during the maintenance for emergencies. Opening the bridge will take approximately 90 minutes to remove the tarps and equipment as required to open the bridge.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The North Carolina Department of Transportation (NCDOT) owns and operates the swing span of the Route 70/Harkers Island Bridge across The Straights, in Harkers Island, NC. The bridge has a vertical clearance in the closed position to vessels of 14 feet, above mean high water. The current operating regulations are outlined at 33 CFR 117.5, which require the bridge to open when a request or signal to open is given.

NCDOT has requested a temporary deviation to the existing regulations for the Route 70/Harkers Island Bridge to facilitate necessary repairs. The repairs consist of the maintenance to the bridge motor. Under this deviation, the swing span of the drawbridge will be maintained in the closed-to-navigation position from 9 a.m. on June 12, 2012, through 3 p.m. on June 13, 2012.

Bridge opening data, supplied by Harkers Island Bridge Tender and reviewed by the Coast Guard, revealed that the bridge opened for vessels on average 2 times in a 24 hour period during early June.

The Coast Guard will also inform the users of the waterway, through our Local and Broadcast Notices to Mariners, of the closure period so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

Vessels that can pass under the bridge without a bridge opening may continue to do so at anytime. There are several alternate routes available for vessels with mast heights greater than 14 feet. In the event of an emergency, the drawbridge will not be able to open for vessels.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulation is authorized under 33 CFR 117.35.

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to these rules because doing so would be impracticable. The details of these emergent events were not received in sufficient time for the Coast Guard to solicit public comments before the start of the fireworks and race. Thus, waiting for a notice and comment period to run would inhibit the Coast Guard from protecting the public and vessels from the hazards associated with the race and with maritime fireworks displays.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making these rules effective less than 30 days after publication in the Federal Register . Delaying these rules would be impracticable for the the same reasons discussed in the preceding paragraph.

On May 27, 2012, the Catawba Island Club Fireworks event will be held on the waters of Lake Erie. The fireworks will be launched from a point located at position 41°34′18.10″ N, 082°51′18.70″ W (NAD 83). They will be launched approximately between the hours of 9:15 p.m. and 9:45 p.m.

On June 3, 2012, the Racing for Recovery Half & Sprint triathlon will take place on the waters of Lake Erie in the vicinity of Sterling State Park, Monroe, MI. The triathlon will take place from 7 a.m. until 9 a.m.

On June 16, 2012 and again on June 23, 2012, the Put-In-Bay Fireworks event will take place on the waters of Lake Erie. The fireworks will be launched from a point located at position 41°39′19″ N, 082°48′57″ W (NAD 83). They will be launched approximately between the hours of 9:15 p.m. and 10:30 p.m. on each day.

The Captain of the Port Detroit has determined that these fireworks displays and the triathlon will present hazards to participants and spectators. Such hazards include obstructions to the waterway that may cause marine casualties, vessels colliding with swimmers that may cause death or serious bodily harm, and the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm.

Because of the aforementioned safety concerns, the Captain of the Port Detroit has determined that temporary safety zones are necessary to ensure the safety of spectators and vessels for each of the aforementioned events. The Catawba Island Fireworks Display safety zone will encompass all U.S. navigable waters of Lake Erie within a 250-yard radius of the fireworks launch site located at position 41°34′18.10″ N, 082°51′18.70″ W (NAD 83). This safety zone will be enforced from 9:15 p.m. until 9:45 p.m. on May 27, 2012.

The Racing for Recovery Half & Sprint safety zone will include all waters of Lake Erie bound by a line beginning onshore at 41°54″14″ N; 083°20′01″ W to 41°54′13″ N; 083°19′48″ W to 41°54′50″ N; 083°19′39″ W to 41°54′51″ N; 083°19′52″ W (NAD 83), and from thence along the shoreline to the beginning. This safety zone will be enforced from 7 a.m. until 9 a.m. on June 3, 2012.

The Put-in-Bay Fireworks events safety zone will encompass all U.S. navigable waters of Lake Erie within a 66-yard radius of the fireworks launch site located at position 41°39′19″ N, 082°48′57″ W (NAD 83). This safety zone will be enforced from 9:15 p.m. until 10:30 p.m. on June 16, 2012 and again on June 23, 2012.

Entry into, transiting, or anchoring within the safety zones established by this rule is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16. All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the on-scene representative.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed them under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that during the short time these zones will be in effect, they will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel or legal policy issue. The safety zones will be enforced for a relatively short amount of time, and vessels may still pass through the zones with permission of the Captain of the Port Detroit.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in any portion of the following locations: Lake Erie, Catawba Island, Port Clinton, OH between 9:15 p.m. and 9:45 p.m. on May 27, 2012; Lake Erie, Sterling State Park, Monroe, MI, from 7 a.m. until 9 a.m. on June 3, 2012; Lake Erie, South Bass Island, Put-in-Bay, OH from 9:15 p.m. until 10:30 p.m. on June 16, 2012 and June 23, 2012.

The safety zones created by this rule will not have a significant economic impact on a substantial number of small entities for the following reasons: each safety zone will only be enforced for a relatively short time—approximately thirty minutes to two hours. In the event that these temporary safety zones affect shipping, commercial vessels may request permission from the Captain of the Port, Sector Detroit to transit through the safety zone(s). The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulations are in effect. Additionally, the COTP will suspend enforcement of the safety zone if the event for which the zone is established ends earlier than the time expected.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because they are not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated this rule as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34) of the Instruction because it involves the establishment of safety zones. An environmental analysis check list and categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On December 2, 2011, VA published in the Federal Register (76 FR 75458) an interim final rule that expanded the Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program to add certain genitourinary (GU) system losses to the TSGLI Schedule of Losses for which a TSGLI benefit is payable. The additional GU losses are being added to the TSGLI program in response to the increase in the number of GU injuries experienced by active duty servicemembers who are insured under TSGLI.

We provided a 60-day comment period that ended on January 31, 2012. We received one comment. The commenter stated that the TSGLI program should be available to all servicemembers and veterans who suffer from GU injuries, not just servicemembers and veterans who have suffered GU injuries since October 7, 2001. We will not make any changes based on this comment. As noted in the interim final rule, Congress authorized TSGLI payments for losses resulting from traumatic injuries incurred on or after October 7, 2001. Expansion of coverage to include injuries sustained prior to that date would require legislative action.

Based on the rationale set forth in the interim final rule, we adopt the interim final rule without change as a final rule.

This document affirms as final, without change, the interim final rule that is already in effect. In accordance with 5 U.S.C. 553(d)(3), the Secretary of Veterans Affairs has concluded that there is good cause to publish this rule with an immediate effective date.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, or tribal governments or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by the Office of Management and Budget (OMB) as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action and has determined that it is not a significant regulatory action under Executive Order 12866.

The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance Program number and title for this regulation is 64.103, Life Insurance for Veterans.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on May 24, 2012, for publication.

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table 1 lists the rule we are approving with the dates that it was adopted by the local air agency and submitted by the California.

On July 20, 2009, EPA determined that the submittal for SCAQMD Rule 1156 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

EPA approved an earlier version of Rule 1156 into the SIP on March 10, 2008 (72 FR 12639). SCAQMD adopted a revision to the SIP-approved version on March 6, 2009 and CARB submitted it to us on April 29, 2009.

PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control PM emissions. Revised Rule 1156 would require total enclosure of clinker storage and handling conducted within 1000 feet from, and inside, a facility's property line. Rule 1156 would allow the use of alternatives, such as a three-sided barrier covered with a roof and wind fence for active barn-type storage, tarp and barrier/wind fence for other active piles, and tarp for inactive piles. EPA's technical support document (TSD) has more information about this rule.

Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). In addition, SIP rules must implement Reasonably Available Control Measures (RACM), including Reasonably Available Control Technology (RACT), in moderate PM nonattainment areas, and Best Available Control Measures (BACM), including Best Available Control Technology (BACT), in serious PM nonattainment areas (see CAA sections 189(a)(1) and 189(b)(1)). The SCAQMD regulates a PM nonattainment area classified as serious (see 40 CFR part 81), so Rule 1156 must implement BACM/BACT.

Guidance and policy documents that we use to evaluate enforceability and BACM/BACT requirements consistently include the following:

1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

3. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

4. “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994).

5. “PM-10 Guideline Document,” EPA 452/R-93-008, April 1993.

6. “Fugitive Dust Background Document and Technical Information Document for Best Available Control Measures,” EPA 450/2-92-004, September 1992.

7. Standards of Performance for Portland Cement Plants (40 CRF Ch.1 (7-1-09 Edition), Subpart F § 60.60).

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, BACM, and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by July 2, 2012, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on July 31, 2012. This will incorporate the rule into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this 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 Clean Air Act; and

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

In addition, this rule 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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The Agency included in the final rule a list of those who may be potentially affected by the action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA issued a final rule in the Federal Register of October 24, 2007 (72 FR 60266) (FRL-8152-9), establishing tolerances for residues of the fungicide fenamidone in or on various commodities. In Units II., III., and V., of the preamble, the text correctly listed the tolerance level for the commodity “strawberry” at 0.02 parts per million (ppm). The table in § 180.579(d), of the regulatory text, incorrectly listed the tolerance level for “strawberry” at 0.15. This technical amendment corrects that error.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical amendment final without prior proposal and opportunity for comment, because this action merely corrects a typographical error. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

No. For a detailed discussion concerning the statutory and executive order reviews, refer to Unit VI. of the October 24, 2007 final rule.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ) EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR part 180 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0802 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 31, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b). In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2009-0802, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), Mail Code: 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

In the Federal Register of May 4, 2012 (77 FR 26477) (FRL-9348-3), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9F7626) by Loveland Products, Inc., 7251 W. 4th St., Greeley, Colorado 80634. The petition requested that 40 CFR 180.590 be amended by establishing tolerances for residues of the insecticide 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates, 2,6- DIPN and its metabolites and degradates, in or on potato, granules/flakes at 5.5 parts per million (ppm); potato, wet peel at 6.0 ppm; potato, whole at 2.0 ppm; cattle, fat at 0.2 ppm; cattle, meat at 0.02 ppm; cattle, meat byproducts, except fat at 0.02 ppm; goat, fat at 0.2 ppm; goat, meat at 0.02 ppm; goat, meat byproducts, except fat at 0.02 ppm; horse, fat at 0.2 ppm; horse, meat at 0.02 ppm; horse, meat byproducts, except fat at 0.02 ppm; milk, fat at 0.02 ppm; sheep, fat at 0.2 ppm; sheep, meat at 0.02 ppm and sheep, meat byproducts, except fat at 0.02 ppm. One comment was submitted. An anonymous commenter (EPA-HQ-OPP-2009-0802-0003) generally expressed opposition to EPA granting this tolerance specifically because “it is time to stop allowing so many toxic chemicals to poison earth, which end up in American bodies causing cancer and other killing deseases and even in breast milk”. After conducting a comprehensive assessment of the data and information submitted by the petitioner, EPA has concluded there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of 2,6-DIPN. Thus, under the standard in FFDCA section 408(b)(2), a tolerance is appropriate. Based upon review of the data supporting the petition, EPA has modified the tolerance expressions such that only the parent need be included in the tolerance expression for livestock commodities. The reason for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 2,6-Diisopropylnaphthalene (2,6-DIPN) and it's metabolites and degradates including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with 2,6-Diisopropylnaphthalene (2,6-DIPN) and it's metabolites and degradates follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of

1. Acute toxicity. While EPA's complete discussion and analysis of acute toxicity of 2,6-DIPN can be found in the Federal Register of August 8, 2003 (68 FR 47246) (FRL-7321-6), in summary, 2,6-DIPN is classified as Toxicity Category IV for the oral route of exposure (median lethal dose (LD 50 ) > 5,000 milligrams per kilogram (mg/kg)).

2. Short- and intermediate-term toxicity. While EPA's complete discussion and analysis of short- and intermediate-term toxicity of 2,6-DIPN can be found in the Federal Register of August 8, 2003, a summary is provided here. The subchronic toxicity study submitted and reviewed suggests the endpoint selection (value/dose at which an effect was observed) is the 104 milligrams per kilogram per day (mg/kg/day) no observed adverse effect level (NOAEL) based on reduced body weight, weight gain, and food consumption. Although the developmental toxicity study indicated a lower NOAEL (50 mg/kg/day) for the same toxicity, the maternal lowest observed adverse effect level (LOAEL) of 150 mg/kg/day is between the subchronic NOAEL of 104-121 mg/kg/day and the LOAEL of 208-245 mg/kg/day. The NOAEL of 50 mg/kg/day may have been appropriate for use in characterization of risks for the subpopulation of women of childbearing age; however, the response at 50 mg/kg/day in the developmental study was minimal, and the observations for toxic effects were more thoroughly documented in the subchronic study.

3. Chronic toxicity. EPA has established the reference dose (RfD) for 2,6-DIPN at 1 mg/kg/day. This RfD is based on results from the subchronic and developmental toxicity studies described in the Federal Register of September 1, 2006 (71 FR 52011) (FRL-8081-9). In support of these tolerances, the RfD remains unchanged.

4. Carcinogenicity. No new study results suggest that 2,6-DIPN is carcinogenic. See EPA's complete discussion and analysis in the Federal Register of August 8, 2003. Specific information on the studies received and the nature of the adverse effects caused by 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates as well as the NOAEL and the LOAEL from the toxicity studies are discussed in the final rule published in the Federal Register of August 8, 2003.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates used for human risk assessment is discussed in Unit III. of the final rule published in the Federal Register of December 16, 2009 (74 FR 66574) (FRL-8798-5).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates, EPA considered exposure under the petitioned-for tolerances as well as all existing 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates tolerances in 40 CFR 180.590. EPA assessed dietary exposures from 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment anticipated residue and/or percent crop treated (PCT) were not used.

Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. In the case of 2,6-DIPN, the toxicity database did not indicate an acute endpoint, but the 100 mg/kg/day NOAEL from the subchronic toxicity study (rounded from 104 mg/kg/day) was used to evaluate potential acute dietary exposure as a conservative basis for risk characterization. Also, if the 50 mg/kg/day NOAEL from the developmental toxicity study had been used to establish an acute RfD, this choice would have been inconsistent with the use of the 100 mg/kg/day NOAEL since it implies that exposure to repeated daily doses at 100 mg/kg/day is potentially less hazardous than a single dose at 50 mg/kg/day. Given the minimal nature of the responses in the subchronic and developmental toxicity studies, and the fact that the NOAEL from the developmental study is only appropriate to the subgroup of females 13-49 years of age, using the 100 mg/kg/day RfD for the acute and chronic dietary assessments is more appropriate for assessing risk for other subgroups and the general population. Therefore, a conservative interpretation of these endpoints indicated the need for an acute dietary exposure assessment. The 100 mg/kg/day endpoint was also interpreted as requiring a chronic dietary exposure assessment.

Acute and chronic dietary exposure assessments for 2,6-DIPN were conducted using the Dietary Exposure Evaluation Model software (DEEM TM version 1.30), which incorporates consumption data from the United States Department of Agriculture's Continuing Surveys of Food Intakes by Individuals (CSFII, 1994-1996/1998). For acute exposure assessments, individual 1-day food consumption data define an exposure distribution, which is expressed as a percentage of the acute population adjusted dose (aPAD) (for 2,6-DIPN, aPAD = 0.1 mg/kg/day). For chronic exposure and risk assessment, an estimate of the residue level in each food or food-form (e.g., orange or orange juice) on the commodity residue list is multiplied by the average daily consumption estimate for the food or food-form. The resulting residue consumption estimate for each food or food-form is summed with the residue consumption estimate for all other food or food-forms on the commodity residue list to arrive at the total estimated exposure. Exposure estimates are expressed as mg/kg body weight/day and as a percent of the 2,6-DIPN chronic population adjusted dose (cPAD) (0.1 mg/kg/day). These procedures are performed for each population subgroup.

EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. If quantitative cancer risk assessment is appropriate, cancer risk may be quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or nonlinear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data are not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope factor approach is utilized.

Based on the data summarized in Unit III.A., EPA has concluded that 2,6-DIPN does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iii. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. Because 2,6-DIPN treatment of stored (i.e., post-harvest) potato occurs inside (in warehouses, for example), no concern from exposure through water is expected regarding acute and chronic dietary risk assessment. For this reason, the dietary risk assessment did not include drinking water values.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates is not registered for any specific use patterns that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates to share a common mechanism of toxicity with any other substances, and 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There were no observed prenatal and postnatal effects.

3. Conclusion. Based on the risk assessments and in consideration of residue data, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of 2,6-DIPN, including its metabolites and degradates, within the existing tolerance limits resulting from post-harvest applications, undertaken in accordance with good agricultural practices and EPA-approved labeling, to potatoes. Such exposure includes all anticipated dietary exposures and all other exposures for which there is reliable information. In arriving at this conclusion, EPA has retained the tenfold margin of safety in order to adequately account for potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, 2,6-Diisopropylnaphthalene (2,6-DIPN) and it's metabolites and degradates is not expected to pose an acute risk.

2. Chronic risk. There are no residential uses for 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates.

3. Short-term risk. Because no short-term adverse effect was identified, 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates is not expected to pose a short-term risk.

4. Intermediate-term risk. Because no intermediate-term adverse effect was identified, 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates is not expected to pose a intermediate-term risk.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, 2,6-DIPN is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates residues.

Loveland Products, Inc. has proposed a liquid chromatographic/ultraviolet (LC/UV) detection analytical method for enforcement of tolerances for residues of 2,6-DIPN in potatoes and potato peels. While tolerances are set for livestock commodities, no analytical method is being required for livestock commodities based on a re-evaluation of the cattle feeding study and the existing ruminant metabolism study which was conducted in goats at a feeding level two times the Maximum Reasonable Dietary Burden (MRDB). The parent compound DIPN and the metabolites M27 and M29 were quantifiable in all edible livestock matrices. In the cattle feeding study DIPN was quantifiable at exaggerated feeding levels, and at the MRDB in fat. The results of the metabolism and feeding studies indicate that fat will likely have the highest residues of any of the livestock matrices, and USDA monitors fat for pesticide residues accessed 5/10/12). Therefore, the parent will be an adequate marker for misuse, particularly with regard to fat which is the commodity most likely to have residues and most likely to be monitored. Accordingly, the residue definition for the tolerance expression can be modified to include the parent compound only.

The method (entitled, “Liquid Chromatographic Analysis for the Determination of 2,6-Diisopropylnaphthalene (DIPN) in Potatoes and Liquid Chromatographic Analysis for the Determination of 2,6-Diisopropylnaphthalene (DIPN) in Potato Peels” (Platte Report Number CARDC-1298-DIPN)) was used for the determination of residues of 2,6-DIPN in potatoes and potato peels.

The method includes instructions and chromatograms for analysis of samples of potatoes and potato peels. Briefly, samples are extracted with acetonitrile. The extracts are partitioned with hexane. The acetonitrile part is discarded. The hexane part is roto-evaporated to dryness. The residues are reconstituted in hexane and purified using a Florisil column. The residues are roto-evaporated to dryness and reconstituted in acetonitrile. The samples are filtered through Acrodisc® LC polyvinylidene difluoride (PVDF) 0.45 micrometer (μm) filters and analyzed by high performance liquid chromatography (HPLC) with ultraviolet (UV) detection at 254 nanometers (nm) using a Zorbax ODS column.

The validated limit of quantitation (LOQ) is 0.01 ppm for 2,6-DIPN in potatoes and 0.02 ppm in potato peels. The reported limits of detection (LODs) were 0.001 ppm for 2,6-DIPN in potatoes and potato peels. The method does not include instructions for confirmatory analysis. Method validation data for the LC/UV method demonstrated adequate method recoveries of residues of 2,6-DIPN. Potato samples were fortified with 2,6-DIPN at levels of 0.01 ppm, 0.02 ppm, 0.05 ppm, and 50 ppm. Samples were analyzed at the limit of quantitation of 0.01 ppm. Overall, recovery ranges (and CVs) from these matrices were 77.9-123.2 (13.9%) for 2,6-DIPN. Potato peel samples were fortified with 2,6-DIPN at levels of 0.02 ppm, 0.05 ppm, and 0.2 ppm. Samples were analyzed at the limit of quantitation of 0.02 ppm. Overall, recovery ranges (and CVs) from these matrices were 83.2-96.1 (5.3%) for 2,6-DIPN.

Acceptable independent laboratory validation is available for this method using potato and potato peel samples. As described in this unit, an adequate enforcement methodology (liquid chromatographic/ultraviolet detection analytical method) is available to enforce the tolerance expression for potatoes and potato peels only.

The radiovalidation data for HPLC/UV(CARDC-1298-DIPN) for the determination of residues of 2,6-DIPN in potatoes and potato peels adequately recovered residues of 2,6-DIPN from samples of whole potato and potato peels with the treatment of the active ingredient. Multiresidue testing for 2,6-DIPN showed that the multiresidue methods are not adequate for enforcement purposes since 2,6-DIPN was not recovered through any of the protocols.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates.

Time-limited tolerances for 2,6-DIPN are set to expire on May 18, 2012 (40 CFR 180.590). In consideration of whether or not the continued use of the active ingredient when used on potatoes would impose further risks to human health, EPA has reviewed newly submitted data/information multiresidue testing for 2,6-DIPN and radiovalidation of the analytical method and multiresidue testing method for determination of 2,6-DIPN in potato and potato peels as well as re-evaluated existing data/information in support of a full tolerance without time limitations. Receipt of this information satisfied the conditions of registration.

In the previous time limited tolerance, EPA determined that an acceptable revised enforcement analytical method for 2,6-Diisopropylnaphthalene (2,6-DIPN) and two metabolites (M27 and M29) in livestock commodities must be submitted. EPA also determined that radiovalidation data for 2,6-DIPN and its metabolites (M27 and M29) must also be submitted. These data have already been generated and final reports of these studies are anticipated to be submitted to the Agency by or before December 2012. Although EPA has requested additional data, EPA has revisited its original decision that the tolerance expression include two of the metabolites in addition to the parent compound. Based on this re-evaluation, EPA has decided to limit the tolerance expression to DIPN only. Feeding studies demonstrate that DIPN is quantifiable in all animal commodities. The highest residues are found in fat, and residues in fat were quantifiable without use of exaggerated feeding studies. Fat is also the commodity most frequently monitored for tolerance violative residues. Accordingly, EPA concludes that limiting the tolerance expression to parent only will be appropriate as a tolerance level for monitoring compliance with label application instructions for DIPN (the basis on which the safety determination for this tolerance was made). (Memorandum from C. Ollinger EPA/OPP/HED to L. Hollis EPA/OPP/BPPD dated May 11, 2012).

Therefore, the tolerances for residues of 2,6-Diisopropylnaphthalene (2,6-DIPN) and its metabolites and degradates, are amended, in or on potato, granules/flakes at 5.5 parts per million (ppm); potato, wet peel at 6.0 ppm; potato, whole at 2.0 ppm; cattle, fat at 0.2 ppm; cattle, meat at 0.02 ppm; cattle, meat byproducts, except fat at 0.02 ppm; goat, fat at 0.2 ppm; goat, meat at 0.02 ppm; goat, meat byproducts, except fat at 0.02 ppm; horse, fat at 0.2 ppm; horse, meat at 0.02 ppm; horse, meat byproducts, except fat at 0.02 ppm; milk, fat at 0.02 ppm; sheep, fat at 0.2 ppm; sheep, meat at 0.02 ppm and sheep, meat byproducts, except fat at 0.02 ppm.

Modification of the residue definition based on re-examination of existing data as described in Unit IV.A. and D., also require modification of the tolerance level. Residues in milk, skim milk, cream, meat, liver, and kidney will be below the limit of quantitation (LOQ) of 0.02 ppm. Therefore, the tolerance may be set at 0.02 ppm. Residues are likely to be quantifiable in fat. HED recommends a level of 0.2 ppm. This is based on the maximum residue of 0.095 from the 8.9 ppm feeding level (0.6x the MRDB) extrapolated to the 1x feeding level, (equal to 0.158 ppm) and rounded up to 0.2 ppm. The existing tolerances for DIPN residues on hog commodities may be revoked, since potatoes are no longer considered a major feed item for swine (memorandum from C. Ollinger (EPA/OPP/HED to L. Hollis EPA/OPP/BPPD dated May 11, 2012).

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

In FR Doc. 2012-8071 of April 12, 2012 (77 FR 22072), the final rule with comment period entitled “Medicare Program; Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for Contract Year 2013 and Other Changes” there were several technical errors and typographical errors that are identified and corrected in the Correction of Errors section.

On page 22072, in the DATES section, we erroneously referenced the amendments to the definitions of “other health or prescription drug coverage” at § 423.2305 and “supplemental benefits” at § 423.100 as being effective January 1, 2013. We also inadvertently omitted references to several sections of the regulation text that are effective January 1, 2013.

On page 22076, the table titled “Table 2: Finalized Revisions with Effective and/or Applicable Dates Other Than 60 Days After Publication” was inadvertently numbered “Table 2” instead of “Table 1.”

On page 22082, in the discussion regarding the effective and applicable dates of the regulatory and conforming changes to the definition of “other health or prescription drug coverage,” we inadvertently omitted language.

On page 22169, we made a typographical error in an amendatory instruction and inadvertently omitted a term in the definition of “daily cost-sharing rate” at § 423.100.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

Section 553(b) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register . This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

This correcting document does not constitute a rulemaking that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document corrects technical errors in the effective dates and typographical errors in the regulation text of the April 12, 2012 final rule with comment period and does not make substantive changes to the policies or payment methodologies that were adopted in the final rule with comment period. As a result, this correcting document is intended to ensure that information included in the April 12, 2012 final rule with comment period accurately reflects the policies adopted in that rule. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule with comment period would be contrary to the public interest. Furthermore, such procedures would be unnecessary, as we are not altering the policies that were already subject to comment and finalized in our final rule with comment period. Therefore, we believe we have good cause to waive prior notice and comment.

For the same reasons, we are also waiving the 30-day delay in effective date for these corrections. We believe that it is in the public interest to ensure that the April 12, 2012 final rule with comment period accurately states our policies as of the date they take effect. Therefore, we find that delaying the effective date of these corrections beyond the effective date of the final rule with comment period would be contrary to the public interest. In so doing, we find good cause to waive the 30-day delay in the effective date.

In FR Doc. 2012-8071 of April 12, 2012 (77 FR 22072), make the following corrections:

1. On page 22072, first column, “ DATES ” section, the paragraph that begins “These regulations are effective” and ends “are effective January 1, 2013” is corrected to read “These regulations are effective on June 1, 2012 unless otherwise specified in this final rule. The amendments to: the definition of “Part D drugs” at § 423.100; § 423.153(d)(1)(vii)(B); § 423.600(a) through (c); and § 423.602(a) are effective January 1, 2013. See section I.B. of this final rule with comment period and Table 1 for additional information regarding effective and applicability dates.”

2. On page 22076, bottom half of the page, the table heading, “TABLE 2—FINALIZED REVISIONS WITH EFFECTIVE AND/OR APPLICABLE DATES OTHER THAN 60 DAYS AFTER PUBLICATION” is corrected to read “TABLE 1—FINALIZED REVISIONS WITH EFFECTIVE AND/OR APPLICABLE DATES OTHER THAN 60 DAYS AFTER PUBLICATION”.

3. On page 22082, third column, second full paragraph, line 17, the phrase “existing definition will on” is corrected to read” “existing definition will be applicable on”.

The snapper-grouper fishery of the South Atlantic 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 Fishery Conservation and Management Act (Magnuson-Stevens Act).

On January 31, 2012, NMFS published a notice of availability for Amendment 18A and requested public comment (77 FR 4754). On March 23, 2012, NMFS published a proposed rule for Amendment 18A and requested public comment (77 FR 16991).

NMFS partially approved Amendment 18A on May 2, 2012. NMFS disapproved the action establishing transferability criteria for the black sea bass pot endorsement, explaining that the amendment identified the wrong preferred alternative selected for this action, and there were discrepancies in the record regarding the Council's discussion of the alternatives and the text describing and analyzing this alternative in the document. Because the Council's intent was unclear from the administrative record, NMFS was unable to implement this action in compliance with the Administrative Procedure Act. The Council is addressing transferability criteria for black sea bass pot endorsements in a separate FMP amendment, which is currently under development.

The proposed rule and Amendment 18A outline the rationale for the actions contained in this final rule. The proposed rule incorrectly indicated that it would modify the black sea bass rebuilding strategy and ABC. Although these measures are included in Amendment 18A, they are not codified in the regulations. A summary of the actions implemented by this final rule is provided here.

This rule modifies the black sea bass annual catch limit (ACL); limits participation in the black sea bass pot segment of the snapper-grouper fishery through an endorsement program; establishes an appeals process for fishermen excluded from the black sea bass pot endorsement program; limits the number of pot tags issued to participants in the black sea bass pot segment of the snapper-grouper fishery; implements measures to reduce black sea bass bycatch; modifies accountability measures (AMs) for black sea bass; establishes a commercial trip limit for black sea bass; modifies the current commercial and recreational black sea bass size limits; and improves data reporting in the for-hire sector of the snapper-grouper fishery. The intent of this rule is to reduce overcapacity in the black sea bass segment of the snapper-grouper fishery.

A total of 28 comments were received on the proposed rule and Amendment 18A from individuals, Federal agencies, and fishing associations. NMFS received 2 comments of general support and 26 individual comments opposing one or more actions contained in Amendment 18A. Several of the comments recommended alternative management measures for black sea bass. Specific comments related to the actions contained in the amendment and the rule as well as NMFS' respective responses, are summarized below.

Comment 1: Several commenters stated they have recently seen more black sea bass and larger black sea bass than in previous years. Additionally, several commenters stated they are seeing black sea bass in areas where they were not previously found. For these reasons the same commenters stated the commercial and recreational ACLs for black sea bass should be significantly increased to allow for more fishing of the stock.

Response: Many fishery participants have indicated they are now seeing more black sea bass and larger black sea bass than in recent years, which is consistent with the finding of the most recent Southeast, Data, Assessment, and Review (SEDAR) for black sea bass which was completed in October 2011 (SEDAR 25). SEDAR 25 indicates that black sea bass are no longer overfished, but are not yet fully rebuilt, and that black sea bass was experiencing overfishing to a small extent based on data from 2009 and 2010. Amendment 17B to the FMP (Amendment 17B), which was implemented on January 31, 2011, established ACLs and AMs for black sea bass to ensure overfishing of black sea bass does not occur (75 FR 82280).

The Magnuson-Stevens Act requires rebuilding plans to rebuild a stock within 10 years except under limited circumstances. The rebuilding strategy for black sea bass, which was implemented in 2006 through Amendment 13C to the FMP (71 FR 55096, September 21, 2006), holds catch at a constant level as the stock size increases. The target time for rebuilding black sea bass is 2016. Because the stock is rebuilding, fishermen are encountering black sea bass more frequently than in recent years.

NMFS is implementing, through this final rule, a modified rebuilding strategy that holds the combined commercial and recreational ACL at 847,000 lb (384,200 kg), round weight [717,797 lb (325,587 kg), gutted weight] for the next 2 fishing years; then changes the ACL to the yield at F Rebuild . The Council's Scientific and Statistical Committee (SSC) endorsed this modification to the current rebuilding strategy, but recommended the ACL not be modified until a stock assessment update is completed before the 2014/2015 fishing year. This rebuilding strategy has a 66 percent probability of rebuilding the stock by 2016 while allowing increases to the ACL, if supported by the next stock assessment.

Comment 2: One commenter is concerned that the continued shortening of the commercial fishing season for black sea bass has led to decreased revenues for his business.

Response: The black sea bass commercial sector has closed much earlier the past 3 fishing years than in previous years, and in each of these years the fishing season was shorter than the previous fishing season. Thus, fishermen have experienced market glut during the months of June, July, and August, and the purchase and sale of black sea bass have been prohibited for the remainder of the season. Actions in Amendment 18A are intended to extend fishing opportunities further into the fishing season to mitigate these negative socioeconomic effects.

Comment 3: One commenter states that the early in-season closures in the commercial and recreational sectors during the 2011/2012 fishing year were not necessary because the stock is no longer overfished.

Response: Results of a 2011 stock assessment indicate that black sea bass are no longer overfished but are not rebuilt, and that the stock was undergoing overfishing to a minor degree according to 2009 and 2010 data. Following this overfishing determination, Amendment 17B implemented AMs and ACLs on January 31, 2011, as required by the Magnuson-Stevens Act, to ensure that overfishing of black sea bass does not occur. In-season closures are a part of the system of commercial and recreational AMs and ACLs for the black sea bass component of the snapper-grouper fishery. The commercial sector AM for black sea bass closes the commercial sector if commercial landings reach, or are projected to reach, the commercial quota, which serves as the functional commercial sector ACL.

The recreational sector AMs for black sea bass include closing the recreational sector when the ACL is met or projected to be met if the stock is overfished. Because the stock was still considered overfished during the 2011/2012 fishing year the sector was closed on October 17, 2011, based on projections that the recreational ACL would be reached by that time. This final rule will modify the current recreational AMs to provide the Regional Administrator with the authority to close the recreational sector when the ACL is met or projected to be met regardless of the overfished status of black sea bass.

Comment 4: One commenter states that the most recent stock assessment for black sea bass should have been delayed until 2011 data for the black sea bass segment of the snapper-grouper fishery could be included. One commenter recommends doing a new stock assessment for black sea bass as soon as possible because the species may no longer be undergoing overfishing.

Response: NMFS and the Council must schedule stock assessments several years in advance to allow time for the needed data to be compiled for use by stock assessment scientists. Stock assessment schedules are reviewed by the Council and approved by the SEDAR Steering Committee. The schedule may be found at the SEDAR Web site: http://www.sefsc.noaa.gov/sedar/SEDAR_PlanSchedule_Nov2011.pdf . The next black sea bass stock assessment has not been scheduled yet.

Amendment 17B (75 FR 82280, December 30, 2010) contained ACLs and AMs to address black sea bass overfishing, and prevent future overfishing from occurring, as required by the Magnuson-Stevens Act. Delaying the assessment until 2011 data became available would have delayed the implementation of Amendment 18A by 1 to 2 years. The Council's SSC endorsed a modified rebuilding strategy, previously discussed under the response to Comment 1, but recommended that the ACL not be modified until a stock assessment update is completed prior to the 2014/2015 fishing year. The stock assessment update would include any effects the actions in Amendment 17B may have had on ending overfishing of black sea bass.

Comment 5: One commenter inquired as to why Mid-Atlantic and New England black sea bass have been successfully rebuilt while South Atlantic black sea bass have not.

Response: Black sea bass are managed as separate stocks north and south of Cape Hatteras, North Carolina. When establishing a rebuilding plan for an overfished species, each Council must take into account many variables including the degree to which overfishing is occurring, Magnuson-Stevens Act requirements, the social and economic environment, and trends in effort which are unique to different fisheries. In 2000, black sea bass north of Cape Hatteras, North Carolina, were considered to be overfished and undergoing overfishing, and actions were taken to rebuild the stock. According to the 2010 Status of U.S. Fisheries found at: http://www.nmfs.noaa.gov/sfa/statusoffisheries/2010/2010_FSSI_non_FSSI_stockstatus.pdf, black sea bass north of Cape Hatteras, North Carolina, are no longer overfished and are not undergoing overfishing. A 2005 stock assessment indicated that the black sea bass stock south of Cape Hatteras, North Carolina, was still overfished and undergoing overfishing. Amendment 15A to the FMP implemented a 10-year rebuilding plan for South Atlantic black sea bass in 2008, designating 2006 as year one of the plan. The most recent stock assessment for South Atlantic black sea bass, SEDAR 25, indicates that the stock is on track to be rebuilt by 2016.

Comment 6: Several commenters stated the amount of regulatory discards of species, such as black sea bass, caused by a low bag limit and small recreational ACL has negatively impacted for-hire businesses because paying customers are not willing to charter vessels for trips that only allow catch-and-release. Thus, the number of trips and quality of trips for some for-hire businesses has decreased. On the other hand, two recreational anglers support a reduced bag limit in order to keep the recreational fishing season open longer.

Response: Amendment 17B to the FMP implemented a recreational ACL for black sea bass of 409,000 lb (185,519 kg), gutted weight [482,620 lb (218,913 kg), round weight]. In Amendment 18A, the Council considered a range of alternatives for modifying the rebuilding plan and the combined commercial and recreational ACL. The Council decided to maintain the combined ACL established in Amendment 17B through the 2013/2014 fishing year until a stock assessment update can be completed. At that time the Council can decide whether increasing the combined ACL is appropriate. Further, the Council and NMFS anticipate a large increase in the allowable catch when the stock is rebuilt in 2016. Regulatory Amendment 9 to the FMP and its implementing final rule (76 FR 34892, June 15, 2011) reduced the recreational bag limit from 15 fish to 5 fish per person. The recreational bag limit was not the subject of the proposed rule to implement Amendment 18A; and therefore, the comments related to the recreational bag limit are beyond the scope of this rulemaking.

Comment 7: One commenter stated it is incorrect for NMFS to partially attribute the early ACL closures in the black sea bass segment of the snapper-grouper fishery to shifting effort from other more heavily regulated species. The commenter states that anglers who would normally target species such as red snapper, for which harvest is now prohibited in the exclusive economic zone (EEZ), are not likely to shift their fishing effort to black sea bass. The commenter suggested effort would likely shift towards groupers, mutton snapper, or some other large fish species, all of which are legal to harvest June through October.

Response: The rebuilding black sea bass population, which has led to increased catch per unit effort, is likely a more significant contributor to the ACLs being met early in the fishing season than effort shifting during the past 2 fishing years. However, during the initial development of Amendment 18A, the black sea bass commercial sector of the snapper-grouper fishery was open during seasonal closures for other species (vermillion snapper and shallow-water groupers) and total prohibitions on other species (red snapper). This scenario is likely to have caused some level of effort shifting to black sea bass. Additionally, the Council determined that management restrictions placed on other snapper-grouper species could cause further effort shifting to black sea bass in the South Atlantic.

Comment 8: One commenter recommends that each state be assigned its own black sea bass quota based on historical landings, and argues that the Council process is no longer effective for the successful management of black sea bass because it does not allow for state-by-state quotas. One commenter suggests that the Council manage black sea bass off the coast of Florida separately from the other states in the South Atlantic, and another commenter suggests that the Council manage black sea bass off the coast of North Carolina separately from the other states in the South Atlantic. One commenter recommends the creation of separate ACLs for the two gear components of the commercial black sea bass sector; namely, an ACL for the pot component and an ACL for the hook-and-line component.

Response: The Council has discussed state-by-state quotas several times in reference to various fish species including black sea bass. However, enforcement of different state quotas or ACLs along state boundary lines is likely to be very difficult. Additionally, administrative difficulties associated with monitoring very small state ACLs have prevented the Council from endorsing state-by-state quotas as a management tool. Implementing gear specific ACLs for the pot and hook-and-line components of the commercial black sea bass sector would have similar issues, and enforcement of these separate component ACLs would be difficult if fishermen used both gear types on one vessel. Again, monitoring these smaller component ACLs would be administratively difficult. However, the Council will continue to discuss these issues and explore options for implementation of state ACLs and separate gear ACLs as quota monitoring capabilities improve over time.

The Council process is effective in managing the black sea bass stock in the South Atlantic. In 2005, a stock assessment indicated that black sea bass in the South Atlantic was still overfished and undergoing overfishing. Through the Council process a rebuilding plan was implemented and the most recent stock assessment indicates that this stock is no longer overfished and is on track to be rebuilt by 2016.

Comment 9: One commenter recommends a recreational tag program where recreational anglers are issued a pre-set number of tags (similar to North Carolina swan tags) that can be used to harvest black sea bass throughout the year. The commenter believes that a tag system for black sea bass would allow recreational fishermen to participate in the black sea bass segment of the snapper-grouper fishery throughout the year, and could improve recreational data for black sea bass. One commenter recommends that NMFS use game wardens to perform dockside checks to gather recreational harvest data, or have state game wardens fill out catch reports because recreational fishermen may not accurately report their catch during dockside and phone interviews.

Response: The suggestion of tag limits to allow participation throughout the year or improve data collection, and the use of game wardens were not the subject of the proposed rule to implement Amendment 18A; the purpose of Amendment 18A is to address overcapacity in the black sea bass segment of the snapper-grouper fishery and therefore, the comments related to tag limits and game wardens are beyond the scope of this rulemaking. However, the Council is not precluded from considering a fish tag program or other ways to collect data in the future.

Comment 10: One commenter is concerned the increasing rate of recreational harvest of black sea bass is shrinking the allocation for the commercial sector. The same commenter recommends establishing a control date using a year when commercial and recreational harvest were closer to being equal and implementing a Federal recreational fishing permit with reporting requirements.

Response: As noted in response to Comment 6 above, the Council considered modifying the combined commercial and recreational ACL in Amendment 18A but chose to maintain the combined ACL established in Amendment 17B until a stock assessment update is completed. These ACLs are based on the 57 percent recreational/43 percent commercial allocation established in Amendment 13C to the FMP (71 FR 55096, September 21, 2006), which used historical landings data from 1999-2003. The Council did not consider changing this allocation formula in Amendment 18A.

The Council recommended a control date of December 4, 2008, for the black sea bass pot segment of the snapper-grouper fishery (74 FR 7848, February 20, 2009) based on concerns about a potential increase in the number of participants in the fishery that may result because of increased regulations on other species in the snapper-grouper complex. However, the Council did not use the December 4, 2008 control date because they decided that the eligibility criteria should give more weight to present participation in the fishery. The Council's eligibility criteria included average annual historical landings of at least 2,500 lb (1,134 kg), round weight [2,118 lb (961 kg), gutted weight] between January 1, 1999, and December 31, 2010, in addition to having some (at least 1 1b (0.4 kg)) reported black sea bass landings between January 1, 2008, and December 31, 2010.

A recreational permit program for private recreational anglers was also not the subject of the proposed rule implementing Amendment 18A, and therefore, the comments related to a recreational permit program are beyond the scope of this rulemaking. However, this does not preclude the Council from considering such a program in the future.

Comment 11: Two commenters state that the Council should declare its long-term objectives for the black sea bass commercial sector in order to establish reasonable allocations. Additionally, one commenter states that NMFS is disproportionately swayed by environmental organizations in their precautionary approach to managing black sea bass, and NMFS does not adequately take into account the concerns of the recreational sector when making decisions.

Response: The Council's long-term objective for the commercial black sea bass sector within the snapper-grouper fishery is to achieve the optimum yield (OY) for the resource. The Council did not consider changing the commercial and recreational allocations in Amendment 18A. However, the Council did consider minimizing adverse socioeconomic impacts to the recreational and commercial black sea bass sectors when developing the management measures contained in Amendment 18A and this final rule.

Throughout the development of Amendment 18A and this rulemaking, the Council and NMFS considered input from all stakeholders. No one organization or entity was given a disproportionate influence in public participation during the Council and rulemaking process.

Comment 12: One commenter states that NMFS should allocate fewer funds to the Council's advisory panels (APs) and re-allocate those funds to law enforcement because the APs do not function adequately.

Response: This comment is beyond the scope of this rulemaking and, therefore, is not addressed here.

Comment 13: One commenter supports a mid-August to mid-December seasonal closure if NMFS chooses to implement a seasonal closure. These months are considered the slowest time of year for the for-hire sector in the state of Florida, and any closure that would include the months of May through July is discouraged because black sea bass are one of the only species available when bottom water off the Florida coast cools in the summer. One commenter recommended changing the opening date of the black sea bass component of the snapper-grouper fishery to coincide with the opening of the vermilion snapper fishing season, which is July 1, in order to reduce the directed targeting of black sea bass during the month of June.

Response: The Council only considered seasonal closures during the black sea bass spawning season, which is March through May. The Council chose not to implement a spawning season closure for black sea bass based on information that indicated black sea bass do not have increased vulnerability during the spawning season like other snapper-grouper species, such as shallow-water groupers. Additionally, Amendment 18A states that peak spawning for black sea bass occurs at different times of the year in different areas of the South Atlantic, ranging from late winter/early spring off Georgia and Florida to primarily spring off North Carolina and South Carolina. The lack of a spawning season closure should not have a negative impact on spawning of black sea bass. The Council could revisit options for black sea bass seasonal closures in the future.

Amendment 13C to the FMP (71 FR 55096, September 21, 2006) established a June 1 start date for the black sea bass fishing year for both the commercial and recreational sectors with the intent that, if a closure should occur, it would most likely coincide with the black sea bass spawning season. The Council again considered a change in the black sea bass fishing year as a possible means to extend the black sea bass season during the development of Regulatory Amendment 9 to the FMP (76 FR 34892, June 15, 2011), although they decided not to change the starting date for the fishing year at that time. Furthermore, the Council considered two 6-month fishing seasons (June-November and December-May) for black sea bass in Regulatory Amendment 9. However, NMFS disapproved this action due to concerns this action could result in the presence of numerous vertical black sea bass pot buoy lines within the endangered northern right whale migration route during the time of year when the whales are transiting off the Southeast coast.

The Council recognizes that the timing of the opening and closing dates of the fishing season affects South Atlantic states differently. For this reason, the Council has discussed the possibility of state-by-state quotas for black sea bass and could consider such a regional approach to management in a future amendment. Additionally, the Snapper-Grouper AP has expressed its support for this type of a regional approach to the management of black sea bass.

Comment 14: Four commenters state that an in-season closure of the black sea bass segment of the snapper-grouper fishery during the winter is not an appropriate management measure because the winter months are the time when black sea bass are most prolific off the coast of North Carolina, and fishing during the winter would help maximize profitability of for-hire operations.

Response: Regulations implementing Amendment 17B included AMs for black sea bass to ensure that the ACL is not exceeded and to correct for an ACL overage should one occur. One component of the system of AMs implemented through Amendment 17B is that the recreational sector will close when the recreational sector ACL is met or projected to be met, but it only applies if the stock is overfished. Regardless of overfished status, the ACL would be reduced by the amount of the overage in the following year. The Council determined that an in-season closure is needed for the recreational sector regardless of the overfished status because catches have increased for black sea bass as the stock rebuilds. Thus, the overage could be very large, and a substantial reduction in the ACL could occur in the following year if there is no in-season closure of black sea bass. Therefore, the Council selected the alternative that provides the RA authority to close the recreational sector when the ACL is met or projected to be met regardless of the overfished status of the stock. The timing of a commercial or recreational in-season closure will depend on the fishing effort and when landings reach the appropriate level to trigger the AMs.

Comment 15: Two recreational anglers state that the two main issues that negatively impact the black sea bass stock are inadequate Federal management and continuing to allow the use of black sea bass pots.

Response: For reasons articulated in Amendment 4 to the FMP, black sea bass pots are an allowable and appropriate gear type for black sea bass. The final rule implementing Amendment 4 to the FMP contained a prohibition on the use of fish traps in the South Atlantic EEZ based on concerns related to ghost fishing by lost traps, habitat damage, enforcement difficulties, and bycatch mortality issues. Page 71 of Amendment 4 outlines the rationale for the Council's choice to prohibit all fish traps, except black sea bass pots, north of 28°35.1′ N latitude because black sea bass pot construction specifications make them highly selective for black sea bass, and bycatch is minimal.

Federal management of black sea bass includes a rebuilding plan and commercial and recreational ACLs and AMs. Currently, when the commercial ACL is reached or projected to be reached, commercial harvest and sale of the species is prohibited and the black sea bass pots must be removed from the water. This rule implements an endorsement program that limits the number of commercial permit holders allowed to fish for black sea bass with pot gear. This rule also limits the number of black sea bass pot tags issued to each endorsement holder each permit year; specifies a commercial trip limit; increases the commercial minimum size limit; and requires that all black sea bass pots be brought back to shore at the conclusion of each trip. The Council and NMFS believe that these measures, together with the existing measures, comprise an appropriate conservation and management program for black sea bass in the South Atlantic.

Comment 16: Two commenters support the actions contained in Amendment 18A that update the rebuilding plan for black sea bass based on the most recent stock assessment. One commenter states that the rebuilding strategy should be based upon a constant fishing mortality rate, rather than a constant catch rate.

Response: NMFS agrees that the actions updating the rebuilding plan based on the most recent stock assessment are appropriate.

The Council considered various rebuilding plans based on either a constant fishing mortality rate or on a constant catch rate. Originally, the Council chose to define a rebuilding strategy for black sea bass that maintains a constant fishing mortality rate throughout the remaining years of the rebuilding timeframe, which would allow the greatest amount of harvest possible, while still having a 50 percent chance of rebuilding by 2016. However, at its December 2011 meeting, the Council determined a more conservative rebuilding strategy alternative that incorporates a higher probability of rebuilding by the start of the 2016/2017 fishing year is more appropriate for the stock. Therefore, the preferred rebuilding strategy alternative was changed from a constant fishing mortality rate to a rebuilding strategy that would hold catch at the current level for the 2012/2013 and 2013/2014 fishing years, and then change to a constant catch rebuilding strategy. The Council's preferred rebuilding strategy has a 66 percent chance of rebuilding the stock by 2016.

Comment 17: A number of commenters expressed concerns regarding the eligibility criteria for the black sea bass pot endorsement. Two commenters oppose the landings qualification because it will exclude some fishermen who have invested in the black sea bass commercial sector of the snapper-grouper fishery. Another commenter believes too many Unlimited South Atlantic Snapper-Grouper Permit holders will qualify for the endorsement. Two commenters are concerned that the endorsement program favors older fishermen with a more established catch history for black sea bass. One commenter states that the Councils choice of qualifying criteria for the endorsement program is not fair and equitable.

Response: The objective of the black sea bass endorsement program is to reduce the rate of harvest and limit the number of the participants in the black sea bass pot segment of the snapper-grouper fishery to curtail derby fishing conditions, which have caused the commercial fishing season to close early for the past 3 fishing years. In determining which eligibility criteria were most appropriate, the Council considered this objective and the requirements for establishing a limited access system set forth in section 303(b)(6) of the Magnuson-Stevens Act (16 U.S.C. 1853(b)(6)), which include present participation in the fishery and historical fishing practices in, and dependence on the black sea bass segment of the snapper-grouper fishery, and the fair and equitable distribution of fishing privileges.

Regarding the number of permit holders who will qualify for the endorsement, prior to the Council finalizing Amendment 18A at its December 2011 meeting, the preferred endorsement eligibility criteria required that fishermen have average annual historical landings greater than 3,500 lb (1,588 kg), round weight [2,966 lb (1,345 kg), gutted weight] between January 1, 1999, and December 31, 2010. Under the 3,500-lb (1,588-kg), round weight criterion, 24 fishery participants would be eligible to receive black sea bass pot endorsements.

After reviewing public comments during its December 2011 meeting, the Council determined that limiting the number of black sea bass pot endorsements to 24 participants would eliminate too many fishermen from the black sea bass pot segment of the snapper-grouper fishery who had historically fished large quantities of black sea bass with pot gear. Therefore, the Council chose to change its preferred eligibility criteria to average annual historical landings of at least 2,500 lb (1,134 kg), round weight [2,118 lb (961 kg), gutted weight] between January 1, 1999, and December 31, 2010, in addition to having some (at least 1 1b (0.4 kg)) reported black sea bass landings between January 1, 2008, and December 31, 2010. This addressed both historical fishing practices as well as current participation in the black sea bass pot segment of the snapper-grouper fishery. Applying these new criteria will result in the issuance of 31 endorsements. The Council determined that this resulted in the fair and equitable distribution of fishing privileges.

Comment 18: Two commenters recommend that the Council allow management measures such as the commercial trip limit and the limit on the number of black sea bass pot tags issued to each permit holder each permit year, to work before reducing capacity in the pot segment of the fishery through an endorsement program.

Response: As noted in the response to comment 17, the objective of the black sea bass endorsement program is to reduce the rate of harvest and limit the number of the participants in the black sea bass pot segment of the snapper-grouper fishery to curtail derby fishing conditions, which have caused the commercial fishing season to close early for the past 3 fishing years. The Council does not believe that a commercial trip limit and limitation on the number of black sea bass pots alone will be sufficient to ease derby fishing conditions.

Comment 19: One commenter states that only two black sea bass pot fishermen in the state of Florida would qualify for the endorsement.

Response: NMFS estimates that six fishermen from Florida (identified by the address on record with the NMFS Permits Office) will qualify for a black sea bass endorsement.

Comment 20: One commenter suggests that a catch share program for black sea bass is a more appropriate means of managing the commercial sector rather than an endorsement program. The commenter cites the need to provide black sea bass to consumers year round and prevent market gluts when the black sea bass season opens.

Response: This comment is beyond the scope of this rulemaking. However, the Council previously considered an action to establish a catch share program for black sea bass in Amendment 21 to the FMP but tabled that amendment due to lack of public support. The Council may decide to again consider a catch share program for black sea bass in the future.

Comment 21: Two commenters support the endorsement program appeals process included in Amendment 18A.

Response: NMFS agrees that setting aside a period of time for those who feel they may have been inappropriately excluded from the black sea bass pot endorsement program to appeal their exclusion from the program is important and consistent with appeals processes for limited access programs implemented by NMFS.

Comment 22: Three commenters support limiting the number of black sea bass pot tags issued to each endorsement holder per permit year to 35.

Response: NMFS agrees that limiting the number of black sea bass pot tags issued to each endorsement holder to 35 tags per permit year will be an effective means of reducing the rate of harvest of black sea bass in the commercial sector, improve in-season management of the species, reduce the amount of vertical-line gear in the water to reduce entanglement risks to protected species in the area, reduce the chance that pots could be lost and that ghost fishing could occur, and limit overall effort in the black sea bass pot segment of the snapper-grouper fishery.

Comment 23: Two commenters support the provision to require black sea bass traps to be brought back to shore at the end of each trip. One commenter opposes this provision because some fishermen may fish differently in other regions of the South Atlantic and one commenter opposes this provision because the same is not required for spiny lobster traps, which are fished in much greater abundance than black sea bass pots. One commenter states that ghost fishing can be addressed through the use of improved biodegradable escape panels. This same commenter is concerned that traps would be required to be pulled from the water during foul weather events.

Response: Currently, black sea bass fishermen can leave black sea bass pots in the water for the duration of the commercial fishing season. Although approximately 62 percent of black sea bass pot fishermen currently bring their black sea bass pots back to shore at the conclusion of each trip, others may leave untended gear in the water for the entire season. Allowing this practice to continue would perpetuate the problem of ghost fishing by lost traps.

However, ghost fishing by lost black sea bass pots is not the only rationale for requiring that the pots be brought back to shore at the end of every trip. The longer the black sea bass pots remain in the water the greater the risk of lost pots, unintended bycatch of black sea bass, and the amount of vertical-line gear in the water. This is true regardless of where black sea bass pot fishing takes place within the South Atlantic Region.

Weather is always a factor that must be considered in planning fishing trips. NMFS believes that fishers will make informed decisions about when to fish and when to end a trip and pull traps from the water.

The Council recognized that there are similar concerns with spiny lobster traps and addressed the issue of removing derelict spiny lobster traps in Amendment 10 to the Spiny Lobster FMP (76 FR 75488, December 2, 2011).

Comment 24: Four commenters support the 1,000-lb (454-kg), gutted weight, commercial trip limit for black sea bass.

Response: NMFS supports the 1,000-lb (454-kg), gutted weight, commercial trip limit for black sea bass as a means of extending the commercial fishing opportunities further into the fishing year, while still allowing commercial black sea bass pot fishermen to have economically profitable trips.

Comment 25: Two commenters support requiring selected for-hire vessels to report landings information electronically.

Response: NMFS supports the requirement that selected for-hire (both charter and headboat) vessels report landings information electronically on a weekly or daily basis. Currently, selected charter vessels are required to report on a weekly basis, and selected headboat vessels are required to report at the end of each month. Increased reporting frequency for selected for-hire vessels will improve in-season management of the recreational sector for snapper-grouper.

Comment 26: Four commenters support increasing the commercial and recreational minimum size limits for black sea bass. Several commenters noted a disparity between commercial and recreational restrictions on fishing for black sea bass. Specifically, several commenters oppose increasing the recreational minimum size limit without increasing the commercial minimum size limit to the same size. One commenter states that the increase of the recreational minimum size limit is too large and would guarantee increased discards. Two commenters state the recreational minimum size limit should be 12 inches (30 cm), TL. Two commenters oppose the use of minimum size limits as a management measure for black sea bass.

Response: NMFS is increasing the minimum size limit for black sea bass in the commercial sector from 10 inches (25 cm), TL, to 11 inches (28 cm), TL, and in the recreational sector from 12 inches (30 cm), TL, to 13 inches (33 cm), TL. Public hearing comments were divided on the usefulness of increasing minimum size limits for black sea bass. The Snapper-Grouper AP supported increasing the minimum size limits to slow the rate of harvest of black sea bass. The SSC also supported increasing the recreational and commercial black sea bass minimum size limits because larger fish are economically more valuable.

The Council determined that it was unnecessary for the commercial and recreational minimum size limits to be the same because the commercial and recreational sectors for black sea bass are managed differently. The commercial and recreational sectors are each allocated their own portion of the allowable catch and each sector will close when their respective ACLs are met or are projected to be met.

The most recent stock assessment for black sea bass (SEDAR 25) indicates release mortality of black sea bass is very low (7 percent for hook-and-line; 1 percent for black sea bass pot) if fish are returned to the water quickly. The Council chose an 11-inch (27.9 cm) size limit for the commercial sector because pots catch a large number of fish and the Council was concerned that a substantial increase in the minimum size limit for the commercial sector could cause an increase in dead discards if there was an increase in the time undersized black sea bass were out of the water. The current minimum size limit in the commercial sector is 10 inches (25 cm), TL, and the 2-inch (5-cm) back panel of the pots culls out a large portion of fish less than 11-inches (28-cm), TL.

Recreational sector participants use hook-and-line gear, which generally catches one or two fish at a time. Therefore, regulatory discards in the recreational sector are more likely to be released quickly and alive, when compared to the commercial sector if there are large numbers of undersized fish to cull out.

Comment 27: Several commenters oppose implementing a 1,000-lb (454-kg), gutted weight, commercial trip limit, while the recreational sector is limited to only 5 fish per person per day.

Response: The Council did not address the recreational bag limit for black sea bass in Amendment 18A. The 5-fish bag limit was implemented through Regulatory Amendment 9 in 2011. Previously, the commercial sector had no trip limit, which contributed to derby fishing conditions that negatively affect profitability and safety of fishermen. The 1,000-lb (454-kg), gutted weight, trip limit is expected to reduce the rate of harvest and help constrain harvest to the ACL.

Comment 28: One commenter states that commercial trip limits and the requirement that pots be brought to shore each day is not necessary to reduce the risk of right whale interactions with black sea bass pots. This commenter believes that gear modifications could reduce the risk of interactions with right whales and notes that there has never been a documented interaction between black sea bass pot gear and right whales.

Response: NMFS completed a biological opinion on the South Atlantic snapper-grouper fishery on June 7, 2006. The biological opinion concluded that the continued authorization of the snapper-grouper fishery was not likely to adversely affect marine mammals, in part, because there has never been a documented interaction between black sea bass pot gear and large whales in the South Atlantic. However, for a majority of large whale entanglements, the actual fishery involved in the interaction cannot be determined and entanglements in trap gear similar to black sea bass pots have occurred in the South Atlantic. Thus, there is the risk of large whale entanglements in black sea bass pot gear.

The management measures contained in Amendment 18A, including the commercial trip limit and the requirement to return black sea bass pot gear to shore at the conclusion of each trip, lessen that risk. The Atlantic Large Whale Take Reduction Team (ALWTRT) has identified reducing the entanglement of North Atlantic right whales in vertical lines (i.e., trap lines), particularly in the Southeast during the winter calving season (November-April), as a conservation priority. As part of their objective of large whale conservation, the ALWTRT may consider the use of modified vertical line gear that decreases the risk of entanglement of large whales.

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is consistent with the FMP, Amendment 18A, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Council and NMFS prepared a final environmental impact statement (FEIS) for Amendment 18A. The FEIS was filed with the EPA on February 10, 2012. A notice of availability was published on February 17, 2012 (77 FR 9652). In partially approving Amendment 18A, NMFS issued a Record of Decision identifying the selected alternatives. A copy of the record of decision (ROD) is available from NMFS (see ADDRESSES ).

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

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.

No public comments specific to the IRFA were received and, therefore, no public comments are addressed in this FRFA. However, several comments with socioeconomic implications were received and are addressed in the Comments and Responses section in the responses to comments #2, 6, and 17. No changes in the final rule were made in response to public comments.

NMFS agrees that the Council's choice of preferred alternatives would best achieve the Council's objectives while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities. The preamble to the final rule provides a statement of the need for and objectives of this rule, and it is not repeated here.

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

This final rule will introduce certain changes to current reporting, record-keeping, and other compliance requirements. In particular, a sample of the 1,985 vessels with for-hire snapper-grouper permits would be required to electronically report their harvest. Because all headboats are currently subject to logbook reporting, the incremental professional skill needed under the new requirement would be relatively small. The incremental professional skill required of charterboats would be relatively higher because only about 10 percent of charter captains are currently contacted on a weekly basis to collect trip level information.

NMFS expects this final rule to directly affect commercial fishers and for-hire operators. The Small Business Administration established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide. For for-hire vessels, other qualifiers apply and the annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

From 2005-2010, an annual average of 247 vessels with valid permits to operate in the commercial snapper-grouper fishery landed black sea bass, generating dockside revenues of approximately $1.103 million (2010 dollars). Each vessel, therefore, generated an average of approximately $4,465 in gross revenues from black sea bass. Vessels that operate in the black sea bass segment of the snapper-grouper fishery may also operate in other segments of the snapper-grouper fishery, the revenues of which are not reflected in these totals.

Based on revenue information, all commercial vessels affected by the rule can be considered small entities.

From 2005-2010, an annual average of 1,985 vessels had valid permits to operate in the for-hire sector of the snapper-grouper fishery, of which 85 are estimated to have operated as headboats. The for-hire fleet consists of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The charterboat annual average gross revenue (2010 dollars) is estimated to range from approximately $62,000-$84,000 for Florida vessels, $73,000-$89,000 for North Carolina vessels, $68,000-$83,000 for Georgia vessels, and $32,000-$39,000 for South Carolina vessels. For headboats, the corresponding estimates are $170,000-$362,000 for Florida vessels, and $149,000-$317,000 for vessels in the other states.

Based on these average revenue figures, all for-hire operations that would be affected by the rule can be considered small entities.

Some fleet activity, i.e., multiple vessels owned by a single entity, may exist in both the commercial and for-hire snapper-grouper sectors to an unknown extent, and NMFS treats all vessels as independent entities in this analysis.

NMFS expects the final rule to directly affect all federally permitted commercial vessels harvesting black sea bass and for-hire vessels that operate in the South Atlantic snapper-grouper fishery. All directly affected entities have been determined, for the purpose of this analysis, to be small entities. Therefore, NMFS determines that this final rule will affect a substantial number of small entities.

NMFS considers all entities expected to be affected by the rule as small entities, so the issue of disproportional effects on small versus large entities does not arise in the present case.

Setting the ACL, ABC, and OY equal to one another would provide an economic environment that would allow small entities to maintain or increase their profits by way of maximizing their use of the black sea bass resource.

Establishing a black sea bass pot endorsement program would likely result in profit increases to those who would qualify and profit decreases to those who would not. Out of the 50 to 60 individuals that currently fish for black sea bass using pots, approximately 31 would qualify for the endorsement. Although those who would not qualify could still fish for black sea bass using other gear types, their harvest performance could suffer. Because a limited number of individuals could fish for black sea bass using pots under the endorsement program, the fishing season for the commercial sector would likely remain open longer than it has in the last few years. This could cause overall industry profits to increase or at least remain stable.

Establishing an appeals process for fishermen initially excluded from the black sea bass pot endorsement program would provide opportunities for those qualified to receive their endorsement. Given the narrow basis for appeals, only a limited number of appeals would likely be successful.

Limiting the number of pots per vessel would likely decrease the short-term profits of small entities. The maximum number of 35 pots allowed per vessel is lower than the current average of 45 pots per vessel fished, and would affect about 48 percent of the trips. Vessels that have historically used more than 35 pots per trip would generate lower revenues per trip or higher overall fishing costs to maintain the same overall revenues. However, because the endorsement program would limit the number of participants in the black sea bass pot segment of the snapper-grouper fishery, fishermen who would be adversely affected by the limit on the number of pot tags per vessel could take more trips to recoup their losses. Thus, overall industry profits, which are expected to increase or remain stable under the endorsement program, may remain unaffected by the potential losses to fishermen adversely affected by the limit on pot tags.

Requiring that black sea bass pots be brought back to shore at the conclusion of each trip as a means to reduce bycatch may restrict the fishing operations of some vessels. Its effects on profits are relatively unknown, but NMFS notes that in approximately 65 percent of trips, pots are brought back to shore. If vessels undertake longer trips to allow their pots to fish longer, costs could rise because no restriction exists on the length of each trip. If this practice results in maintaining the same revenues per trip, vessel profits could decrease. If, however, this requirement results in less ghost fishing and less interaction with protected species, future restrictions imposed on the fishery may lessen, such that long-term profits of small entities would remain sustainable.

The recreational AMs, consisting of the in-season harvest and possession restriction if the recreational ACL is met or projected to be met and the post-season reduction in the sector's ACL if the recreational ACL is exceeded in the current year, would likely reduce the short-term profits of for-hire vessels. Similarly, the commercial AMs consisting of the in-season prohibition on the purchase and sale of black sea bass and the post-season reduction in the sector's ACL, would likely result in profit reductions to the commercial vessels. To the extent that this provision allows the rebuilding target to be reached within the rebuilding period, long-term profits to for-hire and commercial fishing operations would increase. In addition, the projected increases in the aggregate (commercial and recreational) ACL under the rebuilding strategy, as long as the prior year's combined ACL is not exceeded, would tend to negate some or all of the adverse profit effects of the post-season AM applied to either the commercial or recreational sector. If either sector, but not both, exceeds its ACL in the current year, that sector's ACL would be reduced the following year. The combined commercial and recreational ACL, and therefore the sector ACLs, would still increase so long as the combined ACL is not exceeded in the prior year.

Establishing a commercial vessel trip limit of 1,000 lb (454 kg), gutted weight [1,180 lb (535 kg), round weight], would tend to adversely affect the catch and revenue per trip of vessels that generally land over this limit. Based on the 2010-2011 fishing season data, this alternative would adversely affect approximately 8.4 percent of trips accounting for a total of about 83,000 lb (37,648 kg), valued at about $203,000. NMFS notes, though, that this trip limit could lengthen the fishing season, allowing opportunities for some vessels to recoup some of their revenue losses for the year. At any rate, NMFS expects that some of these revenue reductions would filter into the bottom line of some vessels and potentially the bottom line of the entire industry. The actual extent of industry profit reduction cannot be estimated based on available information.

Increasing the recreational minimum size limit from 12 inches (30 cm), TL, to 13 inches (33 cm), TL, could reduce the black sea bass harvests of headboats from 20.9 percent to 22.6 percent and black sea bass harvests of other fishing modes ( i.e. charterboats and private vessels) from 18.8 percent to 20.3 percent. These harvest reductions could lead to trip cancellations because the quality of the fishing experience would decrease. However, these harvest reductions could be recouped through additional trips with a lengthened season. The actual effects on for-hire vessel profits depend on whether there would be trip cancellations, which is uncertain based on available information.

Increasing the commercial size limit from 10 inches (25 cm), TL, to 11 inches (28 cm), TL, could reduce the black sea bass harvests of commercial vessels by slightly over 9 percent. Actual reductions in harvest would partly depend on whether vessels take additional or longer trips to recoup potential harvest losses. Although additional or longer trips would maintain total revenues, either by maintaining the same harvest or by generating more revenue per fish since a bigger black sea bass generally commands a higher price, costs would also increase. The net effects on per vessel and industry profits cannot be determined with available information.

Requiring selected for-hire vessels to report electronically would affect some of the 1,985 vessels with for-hire snapper-grouper permits. This requirement would add costs to these vessels' operations. The incremental costs to selected headboats would not likely be as much as for charterboats because headboats are currently subject to logbook reporting. Charterboats are not currently subject to logbook reporting although NMFS now routinely contacts some charter captains to collect trip level information. The resulting effects to for-hire vessel profits are indeterminable.

Amendment 18A contains other provisions that could eventually have effects on the operations of small entities. First, modifying the rebuilding strategy and setting the ABC for black sea bass would retain the current economic status of small entities for the next 2 years of the rebuilding period. Thereafter, profits to small entities may increase with a shift from a constant catch strategy to a constant fishing mortality strategy that would allow the ABC to increase over time depending on the results of future stock assessments. Second, as part of modifying the rebuilding strategy, overfishing for black sea bass will be determined on an annual basis using the maximum fishing mortality threshold and the overfishing limit. This provision alone would not affect the profits of small entities. Third, an ACT for the recreational sector would account for management uncertainty in the recreational sector, related in part to the timely accounting of this sector's harvests. Currently, this ACT does not trigger application of AMs, so short-term profits to small entities would remain unaffected. If the Council decides in the future to use the ACT as the trigger for application of AMs, profits to small entities may be adversely affected. However, because this measure is designed to help ensure that the rebuilding strategy stays on track, long-term profitability would be sustainable.

Five alternatives, including the preferred alternative, were considered for modifying the rebuilding strategy and ABC. The preferred alternative has a relatively high probability of rebuilding the stock so that it is more likely to result in ABC increases after the first 2 years. The actual ABC levels after 2 years are currently unknown but would be specified based on future stock assessments. The first alternative, the no action alternative, would maintain the constant catch rebuilding strategy and current ABC throughout the rebuilding timeframe. This alternative has the same probability of rebuilding the stock as the preferred alternative. Because it would maintain the same ABC over time it would likely result in lower economic benefits than the preferred alternative. The second alternative would establish a new constant catch rebuilding strategy with a higher (than current) ABC throughout the remaining years of the rebuilding timeframe. Relative to the preferred alternative, the second alternative would provide for a higher ABC for 2 years and a lower or higher ABC thereafter depending on the results of future stock assessments. Thus, the sum of economic benefits over the rebuilding timeframe under this alternative could be lower or higher than that of the preferred alternative, depending on the preferred alternative's actual ABC level. It may only be noted that, being a constant catch strategy, this alternative would likely lead to the ACL being met sooner as the fish stock rebuilds, resulting in applications of in-season and post-season AMs. The third alternative, with two sub-alternatives, would establish a constant fishing mortality rebuilding strategy throughout the remaining years of the rebuilding timeframe. Under the first sub-alternative, the fishing mortality rate would be 75 percent of the fishing mortality at MSY (75-percent F MSY ), and under the second sub-alternative, the fishing mortality rate that would rebuild the stock by 2016 (F REBUILD by 2016). These two sub-alternatives would provide for higher ABCs than the preferred alternative during the first 2 years, and thus, higher economic benefits in the short term. These two sub-alternatives would also result in higher economic benefits in the long term if the preferred alternative's future ABCs were not substantially higher than those of the two sub-alternatives. The fourth alternative would maintain the current constant catch strategy and ABC for the next 2 years of the rebuilding timeframe and switch to a constant fishing mortality strategy at F REBUILD throughout the remainder of the rebuilding timeframe. This alternative would provide for the same ABC as the preferred alternative during the first 2 years, but relates to a lower probability of rebuilding the stock to biomass at MSY. Because this alternative has the same ABCs as the preferred alternative during the first 2 years and adopts a constant fishing mortality rebuilding strategy thereafter, it is possible the two alternatives would result in about the same economic effects over time.

Four alternatives, including the preferred alternative, were considered for modifying the ACL for black sea bass. The first alternative, the no action alternative, would maintain the existing ACL equal to ABC and OY equal to 75 percent of the fishing mortality at MSY. This alternative is more restrictive than the preferred alternative in setting OY as the underlying goal of managing the black sea bass stock. The second alternative would set the ACL equal to 90 percent of the ABC and the latter equal to OY. The third alternative would set the ACL equal to 80 percent of the ABC and the latter equal to OY. These other alternatives would provide for a lower ACL than the preferred alternative, and thus lower economic benefits as well.

Three alternatives, including the preferred alternative, were considered for establishing an endorsement program for the black sea bass pot segment of the snapper-grouper fishery. The first alternative, the no action alternative, would not establish an endorsement program. This alternative would continue to allow anyone with an Unlimited or 225-lb (102-kg) Limited Snapper-Grouper Permit to engage in the black sea bass pot segment of the snapper-grouper fishery. This would increase the likelihood of the derby-style fishing conditions, potentially dampening industry profitability. The second alternative includes seven sub-alternatives, of which one is the preferred sub-alternative that would require minimum landings of 2,500 lb (1,134 kg), round weight, to be eligible to participate in the endorsement program. The first sub-alternative would set the minimum landings at 500 lb (227 kg), round weight; the second sub-alternative, at 1,000 lb (454 kg), round weight; the third sub-alternative, at 2,000 lb (907 kg), round weight; the fourth, at 3,500 lb (1,588 kg), round weight; the fifth, at 5,000 lb (2,268 kg), round weight; and, the sixth, at 10,000 lb (4,536 kg), round weight. These sub-alternatives would allow varying numbers of individuals/entities to qualify for the endorsement: higher landings requirements would result in fewer qualifiers. The Council's choice of preferred alternative was based on the assessment that about 30 individuals/entities can be profitably sustained by the black sea bass pot segment of the snapper-grouper fishery. In this case, sub-alternatives requiring less than 2,500 lb (1,134 kg), round weight, of landings for endorsement eligibility would likely result in unsustainable profits. On the other end, sub-alternatives requiring higher than 2,500 lb (1,134 kg), round weight, of landings would severely restrict participation in the fishery although industry profitability would be more sustainable. In addition, a highly restrictive endorsement qualification criterion, such as 10,000 lb (4,536 kg), round weight, would tend to eliminate small scale operations that have historically characterized the black sea bass pot segment of the snapper-grouper fishery. The third alternative, with two sub-alternatives, would require that no South Atlantic state shall have fewer than two entities qualifying for the endorsement. The first sub-alternative would set a minimum landings requirement of 1,000 lb (454 kg), round weight, and the second, 2,000 lb (907 kg), round weight. This alternative, with the sub-alternatives, was intended to allow participation by all South Atlantic states in the endorsement program. Since the minimum number of qualifiers from each state would be the same under this alternative and the preferred alternative, the Council deemed this third alternative unnecessary.

Three alternatives, including the preferred alternative, were considered for establishing an appeals process for fishermen initially excluded from the endorsement program. The first alternative, the no action alternative, would not establish an appeals process. This alternative has the potential to unduly penalize participants if they were incorrectly excluded from the endorsement program. The second alternative is the same as the preferred alternative, except that it would establish a special board, composed of state directors and designees, that would review, evaluate, and make individual recommendations to the RA. This alternative would introduce an additional administrative burden that may not improve the appeals process because the only appealable issues are eligibility and landings.

Five alternatives, including the preferred alternative, were considered for limiting effort in the black sea bass pot segment of the snapper-grouper fishery. The first alternative, the no action alternative, would not limit the number of black sea bass pots deployed or pot tags issued to holders of snapper-grouper commercial permits. Among the alternatives, this is potentially the best alternative for efficient operations in the black sea bass pot segment of the snapper-grouper fishery. But with no limit on the number of pots, a high likelihood arises that more pots may be lost and “ghost fish” for black sea bass or other species. In addition, the more pots, the more vertical lines are in the water, which increases the probability of interaction with certain protected species. Ghost fishing is likely to hinder the rebuilding of black sea bass or provide less protection to other snapper-grouper species subject to a rebuilding strategy. Both ghost fishing and interactions with protected species could lead to the implementation of more restrictive measures that would impinge on the profits of commercial vessels. The second alternative would limit black sea bass pot tags to 100 per vessel per year; the second alternative, to 50 per vessel per year; and, the third alternative, to 25 per vessel per year. These other alternatives differ from the preferred alternative only in the maximum number of pots deployed or pot tags issued per vessel, with the higher numbers providing better opportunities for higher profits per vessel trip. But as noted above, the higher number of pots, the higher the probability of ghost fishing and interaction with protected species.

Three alternatives, including the preferred alternative, were considered for reducing bycatch in black sea bass pots. The first alternative, the no action alternative, would allow pots to remain in the water until the commercial quota is reached. This alternative would not help reduce bycatch in the black sea bass pot segment of the snapper-grouper fishery. The second alternative would allow fishermen to leave pots in the water for no more than 72 hours. This alternative would have about the same effects as the preferred alternative on pot fishing operations, because most fishing trips for black sea bass using pots last for less than 3 days. However, it would present a higher probability for ghost fishing because pots may be left in the water on short vessel trips or not retrieved during inclement weather.

Three alternatives, including the preferred alternative, were considered for modifying the AMs for black sea bass. The first alternative, the no action alternative, would maintain the current commercial and recreational AMs. The Council concluded that this alternative was not effective in constraining harvest at or below the sector ACLs. The second alternative is similar to the preferred alternative for the recreational sector, except that it would trigger in-season AMs only if the black sea bass stock is overfished. This alternative could lead to larger post-season adjustment of the recreational ACL and thus larger adverse effects on for-hire profits, particularly if the aggregate ACL is exceeded. Moreover, if overages in the recreational harvest lead to exceeding the aggregate ACL, the aggregate ACL would not automatically increase the following year, resulting in adverse effects on both the commercial and recreational sectors.

Nine alternatives, including the preferred alternative, were considered for establishing a commercial trip limit. The first alternative, the no action alternative, would not establish a commercial trip limit. In principle, this alternative would likely provide the most short-term profitability among commercial vessels on a per trip basis, because commercial vessel operations would remain unaffected. However, this alternative could lead to lower industry profitability if harvest rate is not effectively controlled and this results in a shortened fishing season. The second alternative would establish a trip limit of 500 lb (227 kg), gutted weight; the third alternative, 750 lb (340 kg), gutted weight; the fourth alternative, 1,250 lb (567 kg), gutted weight. The fifth alternative would establish a trip limit of 1,000 lb (454 kg), gutted weight, that would be reduced to 500 lb (227 kg), gutted weight, when 75 percent of the commercial ACL is met. The sixth alternative would establish a trip limit of 2,000 lb (907 kg), gutted weight; the seventh, 2,500 lb (1,134 kg), gutted weight; and, the eighth alternative, 250 lb (113 kg), gutted weight. NMFS expects that trip limits lower than the preferred alternative of 1,000 lb (454 kg), gutted weight, would lead to larger adverse effects on per trip profitability and the opposite would occur with higher trip limits. Based on the Council's assessment, the preferred alternative would provide the best balance between per trip losses in profits and higher industry profits from a longer fishing season.

Three alternatives, including two preferred alternatives, were considered for modifying the commercial and recreational minimum size limit. The first alternative, the no action alternative, would not change the commercial or recreational size limit. In principle, this alternative would provide the best economic environment for both the commercial and recreational sectors, because their operations would remain relatively unaffected. However, this alternative would not help in constraining the rate of harvest which has been increasing in recent years, leading to early closures of both the commercial and recreational sectors of the black sea bass segment of the snapper-grouper fishery. The second alternative includes three sub-alternatives for commercial size limits, one of which is the preferred sub-alternative. The second sub-alternative would increase the commercial size limit from 10 inches (25 cm), TL, to 12 inches (30 cm), TL. This sub-alternative would lead to relatively larger adverse effects on the profits of commercial vessels but would also tend to allow a longer fishing season. However, the Council concluded that this sub-alternative would not provide the best balance between short-term profit reductions and profit increases from a longer season. The third sub-alternative would increase the commercial size limit from 10 inches (25 cm), TL, to 11 inches (28 cm), TL, in the first year and to 12 inches (30 cm), TL, thereafter. This sub-alternative would eventually lead to larger adverse effects on the profits of commercial vessels but would also tend to allow a longer fishing season. However, the Council concluded that this sub-alternative would not provide the best balance between short-term profit reductions and profit increases from a longer season.

Four alternatives, including the preferred alternative, were considered for improving for-hire data reporting. The first alternative (the no action alternative) would retain the existing data reporting systems for the for-hire sector. However, the Council concluded that modifications to existing recreational data collection are necessary to the extent that they would not be too burdensome on for-hire vessel operations. The second alternative would require vessels operating with a Federal for-hire permit to maintain a logbook for discard characteristics (e.g., size and reason for discarding), if selected. This alternative would provide better information regarding discards, but would increase costs for for-hire vessel operations. The third alternative would require that for-hire landings and catch/effort data be submitted in accordance with the Atlantic States Cooperative Statistics Program (ACCSP) standards, using the South Atlantic Fisheries Information System (SAFIS). Although this alternative has the potential to improve recreational data collection, it would be costly to for-hire vessels. Therefore, the Council decided to wait until the new Marine Recreational Information Program (MRIP) has been in place for some time to determine whether it would be sufficient for reporting for-hire landings data.

Four alternatives, including the preferred alternative, were considered for setting the recreational annual catch target (ACT). The first alternative, the no action alternative, would not set a recreational ACT, and thus, would not meet the stated objective. The second alternative would set the recreational ACT equal to 85 percent of the recreational ACL. The third alternative would set the recreational ACT equal to 75 percent of the recreational ACL. NMFS estimates that these two alternatives would result in lower ACTs than the preferred alternative, so that if an ACT triggers management actions, these two alternatives would result in larger adverse effects on the profits of for-hire vessels.

In Amendment 18A, the Council considered several actions for which the no-action alternative was the preferred alternative.

Three alternatives, including the preferred alternative (no action alternative), were considered for setting the commercial ACT. The first alternative would set the commercial ACT equal to 90 percent of the commercial ACL. The second alternative would set the commercial ACT equal to 80 percent of the commercial ACL. Because NMFS closely tracks the commercial landings in-season through a quota monitoring system, the Council concluded that a commercial ACT as a monitoring tool was unnecessary.

Five alternatives, including the preferred alternative (no action alternative), were considered for implementing a spawning season closure. The first alternative would implement a March 1-April 30 spawning season closure; the second alternative, an April 1-May 31 spawning season closure; the third alternative, a March 1-May 31 spawning season closure; and, the fourth alternative, a May 1-May 31 spawning season closure. These alternatives would result in short-term profit reductions to commercial and for-hire vessels. Black sea bass do not form large spawning aggregations and the peak spawning period occurs at different times of the year across the South Atlantic. Therefore, short-term profit reductions could persist in the future as the benefits from a spawning season closure are not well established.

Four alternatives, including the preferred alternative (no action alternative), were considered for improving commercial data reporting. The first alternative would require all vessels with Federal snapper-grouper commercial permits to have an electronic logbook tied to the vessel's Global Position System onboard the vessel. The second alternative would provide the option for fishermen to submit their logbook entries electronically via an electronic version of the logbook made available online. The third alternative would require submission of commercial landings and catch and effort data in accordance with the ACCSP standards, using the SAFIS. These alternatives would introduce additional cost to commercial fishing operations. In the particular case of the second alternative, fishermen would be unlikely to opt for electronic reporting because of its additional cost, thereby rendering the alternative impractical. The Council decided to address this issue in the future through a comprehensive amendment for improving data collection.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders in the South Atlantic snapper-grouper fishery.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB) under control numbers 0648-0603 and 0648-0205. Public reporting burden for the for-hire sector of the snapper-grouper fishery to submit logbook information electronically, if selected to do so, is estimated to average 30 minutes per electronic logbook installation and 1 minute per weekly download of the weekly logbook information. Public reporting burden for South Atlantic Unlimited Snapper-Grouper Permit holders to submit their logbook information if they are appealing their landings data for a black sea bass pot endorsement is estimated to average 2 hours per response. Public reporting burden for the requirement to check boxes on the Federal Permit Application Form for a new endorsement or renewal of the black sea bass pot endorsement is estimated to average 1 minute per response. Finally, the public reporting burden for the requirement to check boxes on the Federal Permit Application Form for black sea bass pot tags (Floy tags) for the endorsement program is estimated to average 1 minute per response. These estimates of the public reporting burden include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES ).

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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.

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

This action will limit access to the lobster trap fishery in the Federal waters of Area 1 by employing qualification criteria similar to those recommended by the Area 1 Lobster Conservation Management Team (LCMT) and by the Commission's Lobster Board in Addendum XV to Amendment 3 of the Commission's Plan (Addendum XV). Specifically, interested applicants will be required to show proof of the following three criteria: (1) Proof that they possess an active Federal lobster permit; (2) proof that the permit contained an Area 1 trap designation during the 2008 fishing season (May 1, 2008-April 30, 2009); and (3) proof that at least one Area 1 trap tag was purchased under the involved permit during any one of the 2004-2008 fishing years. Interested applicants must apply to NMFS for access on or before November 1, 2012.

These regulations will modify Federal lobster fishery management measures in the Exclusive Economic Zone (EEZ) under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) 16 U.S.C 5101 et seq., which states, in the absence of an approved and implemented fishery management plan under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq. ) and, after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nautical miles (nm) offshore. The regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.

The purpose of this action is to manage the American lobster fishery in a manner that maximizes resource sustainability, recognizing that Federal management occurs in concert with state management. To achieve this purpose, NMFS needs to respond to recently-approved state management measures that control effort within the lobster fishery. Specifically, the Commission's Lobster Plan seeks to limit entry into the Federal Area 1 lobster trap fishery. Of the seven Lobster Conservation Management Areas (LCMAs, Areas) only Area 1 remains open and accessible to all Federal lobster permit holders under the Commission Plan. Commissioners and Area 1 permit holders alike are concerned that restrictions in these other LCMAs could cause a shift of trap fishing effort into Area 1 from other areas, and a shift of non-trap fishing effort in Area 1 to trap fishing effort, potentially flooding Area 1 with new fishers, upsetting local lobster stock stability, and undermining existing social and cultural lobster fishing traditions in Area 1.

American lobsters are managed within the framework of the Commission. The Commission serves to develop fishery conservation and management strategies for certain coastal species and coordinates the efforts of the states and Federal Government toward concerted sustainable ends. The Commission, under the provisions of the Atlantic Coastal Act, decides upon a management strategy as a collective and then forwards that strategy to the states and Federal Government, along with a recommendation that the states and Federal Government take action (e.g., enact regulations) in furtherance of this strategy. The Federal Government is obligated by statute to support the Commission's ISFMP and overall fishery management efforts (See Statutory Authority ). Consistent with these requirements, NMFS published this final rule to cap and control lobster trap fishing effort in Area 1 in support of the Commission's ISFMP.

Area 1, the most productive lobster management area with respect to landings, is within the Gulf of Maine stock area. The most recent lobster stock assessment (2009) indicated that Gulf of Maine lobster stock abundance is relatively high, with stable levels of fishing mortality. Despite favorable conditions, the stock assessment cautioned that unchecked trap fishing effort in Area 1 could negatively impact the sustainability of the Gulf of Maine lobster fishery if lobster abundance declined to long-term median levels.

At this same time, lobster managers and Area 1 lobster fishers became aware that trap fishing effort in Area 1 was indeed relatively unchecked. Some fishers provided anecdotal evidence that Area 1 Federal waters fishing effort might be on the increase. Specifically, the Area 1 LCMT, an advisory group composed of lobster fishermen, worried that limited access programs in the other lobster management areas might cause, and perhaps were already causing, non-qualifiers to move their businesses into Area 1—the only remaining non-limited access area. They were also concerned that restrictions in other fisheries may lead permit holders who fish for lobster with non-trap gear to convert to trap fishing in Area 1. The Area 1 LCMT recommended that the Commission limit access to the trap fishery in Area 1 Federal waters to those fishers who could document having fished there with trap gear in the past. The Area 1 LCMT worried that speculators will newly declare into Area 1 upon hearing the news and, therefore, the LCMT recommended establishing an immediate control date after which fishing history could not be credited towards qualification.

The Commission agreed with the scientists and LCMT that a potential shift of trap fishing effort into Area 1 could jeopardize the sustainability of the Gulf of Maine lobster stock and Area 1 fishery and, consequently, the Commission's Lobster Board began to develop, in 2008, Addendum XV to Amendment 3 of the ISFMP. Addendum XV and Amendment 3 are available at the Commission's Web site at http://www.asmfc.org . Addendum XV intends to control lobster trap fishing effort by limiting the transfer of Federal lobster permits into Area 1 from other areas and from the non-trap fishery.

As the Commission developed Addendum XV in October 2008, they asked NMFS to immediately publish a control date to prevent speculators from moving into Area 1. On January 2, 2009, NMFS published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register (74 FR 67) to notify the public that any further investment in the Area 1 trap fishery may not guarantee future access if a limited entry program is implemented and to solicit public comments on the issue (see Comments and Responses). Knowing that Federal action will be needed to restrict the movement of Federal lobster permits into Area 1, the Commission adopted the publication date of the ANPR (January 2, 2009) as a control date for determination of Area 1 eligibility.

The Commission approved Addendum XV in November 2009 after receiving public input in numerous public meetings. In Addendum XV, the Commission recommended an Area 1 limited access program with the following three eligibility criteria: (1) Possession of a Federal limited access lobster permit; (2) proof of an Area 1 designation on the Federal lobster permit as of the January 2, 2009, control date; and (3) proof of purchase of an Area 1 lobster trap tag during any year from 2004-2008, inclusive. Addendum XV did not recommend making any change to the trap cap in Area 1, currently set at 800 traps.

The actions set forth in this final rule have undergone extensive and open public notice, debate, and discussion both at the Commission and Federal levels.

Typically, this public discussion of a potential Federal lobster action begins within the Commission process. Specifically, the Commission's Lobster Board often charges its Plan Development Team or Plan Review Team—sub-committees of the Lobster Board—to investigate whether the existing ISFMP needs to be revised or amended to address a problem or need, often as identified in a lobster stock assessment. The Plan Review and Plan Development Teams are typically comprised of personnel from state and Federal agencies knowledgeable in scientific data, stock and fishery condition, and fishery management issues. If a team or teams conclude that management action is warranted, it will so advise the Lobster Board, which would then likely charge the LCMTs to develop a plan to address the problem or need. The LCMTs—most often comprised of industry representatives—will conduct a number of meetings open to the public wherein they will develop a plan or strategy, i.e., remedial measures, in response to the Lobster Board's request. The LCMTs then vote on the plan and report the results of their vote back to the Lobster Board. Minutes of the LCMT public meetings can be found at the Commission's Web site at http://www.asmfc.org under the “Minutes & Meetings Summary” page in the American lobster sub-category of the Interstate Fishery Management heading.

After receiving an LCMT proposal, the Commission's Lobster Board will often attempt to seek specialized comment from both the Lobster Technical Committee and Lobster Advisory Panel before the proposal is formally brought before the Board. The Technical Committee is comprised of specialists, often scientists, whose role is to provide the Lobster Board with specific technical or scientific information. The Advisory Panel is a committee of individuals with particular knowledge and experience in the fishery, whose role is to provide the Lobster Board with comment and advice. Minutes of the Technical Committee and Advisory Panel meetings can be found at the Commission's Web site at http://www.asmfc.org under the “Minutes & Meetings Summary” page in the American lobster sub-category of the Interstate Fishery Management heading.

After receiving sub-committee advice, the Lobster Board debates the proposed measures in an open forum whenever the Board convenes (usually four times per year, one time in each of the spring, summer, fall, and winter seasons). Meeting transcripts of the Lobster Board can be found at the Commission's Web site at http://www.asmfc.org under “Board Proceedings” on the “Minutes & Meetings Summary” page in the American lobster sub-category of the Interstate Fishery Management heading. These meetings are typically scheduled months in advance and the public is invited to comment at every Board meeting. In the circumstance of an addendum, the Board will vote on potential measures to include in a draft addendum. Upon approving a draft addendum, the Lobster Board will conduct further public hearings on that draft addendum for any state that so requests. After conducting the public hearings, the Lobster Board will again convene to discuss the public comments, new information, and/or whatever additional matters are relevant. After the debate, which may or may not involve multiple Lobster Board meetings, additional public comment and/or requests for further input from the LCMTs, Technical Committee and Advisory Panel, the Lobster Board will vote to adopt the draft addendum, and if applicable, request that the Federal Government implement compatible regulations.

The need for the Federal action, in this case, is based on concerns by the Area 1 lobster trap industry and the Commission, that unchecked lobster trap fishing effort in Area 1 could result in a migration of Federal lobster permits into Area 1. Additionally, there was concern expressed by the Area 1 LCMT and the Commission that lobster fishermen with Federal non-trap gear permits may opt to transition into the lobster trap fishery due to management restrictions in other Federal fisheries, such as the groundfish fishery. Although the number of Federal lobster trap permits in Area 1 has remained stable over the past decade, potential for effort shift exists. Area 1 was, until the publication of this rule, the only lobster management area in the Commission's Lobster Plan that was open to all lobster permits for lobster trap fishing. As other areas become restricted, those permits that do not qualify for trap fishing can be purchased and relocated to Area 1. Further, the most recent stock assessment in 2009 indicated that although the Gulf of Maine lobster stock was in favorable condition, increases in fishing effort could de-stabilize the fishery.

The Area 1 LCMT held several public meetings in Maine and New Hampshire during 2007 and 2008 to discuss the issue and to develop eligibility criteria. Their proposal was forwarded to the Commission's Lobster Board as the basis of Addendum XV. Addendum XV was the topic of several public meetings prior to its approval by the Commission in 2009.

Since the transfer of Federal lobster management in December 1999 from the Magnuson-Stevens Act, with its Federal Fishery Management Councils, to the Atlantic Coastal Act, with the Commission, Federal lobster action has typically been undertaken in response to a Commission action.

The development of this current rulemaking began in 2008 as the Commission's Lobster Management Board began discussing measures to cap lobster trap fishing effort in Area 1 through the development of Addendum XV. The Commission recommended that NMFS publish a control date for potential use as a cut-off date in determining continued eligibility for Federal lobster permits in Area 1. Consequently, NMFS published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register on January 2, 2009. The ANPR notified the public that NMFS was considering a limited entry program for the Area 1 lobster trap fishery and that the ANPR publication date could be used as a control date for that purpose. The Commission adopted the ANPR publication date as a control date in Addendum XV along with other eligibility criteria for use in determining Federal permits that are considered active trap permits. Addendum XV recommended that NMFS take action to cap the number of Federal lobster trap permits in Area 1 using methods which are compatible with those set forth in Addendum XV.

NMFS published a proposed rule on November 18, 2011 (76 FR 71501). In the proposed rule NMFS recommended liberalizing the eligibility period to the entire 2008 fishing year (May 1, 2008-April 30, 2009). We received numerous public comments in response to the proposed rule, some of which supported liberalizing the criterion (including the state agencies and Commission), and none of which opposed the liberalization. Comments and responses to the proposed rule are set forth later in this final rule (see Comments and Responses).

NMFS prepared a draft Environmental Assessment (EA) in support of its proposed rule. The draft EA analyzed a status quo alternative; an alternative that employed the Commission's Addendum XV eligibility criteria, including the January 2, 2009, control date; and a third alternative which liberalized the eligibility period to include the entire 2008 fishing year (May 1, 2008 to April 30, 2009), rather than the shorter period offered under the Commission's criteria. The draft EA was made available to the public in November 2011 when the proposed rule was published.

This final rule adopts the qualification measures identified in the proposed rule. At the time of the proposed rule, the draft EA (now final) showed that 1,643 Federal lobster permits will likely qualify under this action. Of this total, approximately 32 qualifiers would benefit from the extension of the qualification cut-off date to the entire 2008 fishing year. Our analysis suggests that these 32 individuals do not represent new effort (the majority of these individuals have fished with traps in Area 1 in the past) and the relative additional effort from these 32 permits holders is negligible when compared to the overall level of trap fishing effort in Area 1. According to the draft and final EA, of the 3,152 Federal lobster permits in existence, 1,509 permit holders will likely not qualify into the Area 1 trap fishery (calculated at 3,152 total permit holders minus the 1,643 permit holders expected to qualify). Of this 1,509 total, the vast majority (1,419 permit holders) are from locales south of Area 1 waters and/or have never sought to fish with traps in Area 1 in the past.

As previously stated in the proposed rule, this final rule requires that all qualification applications must be submitted by November 1, 2012. Late applications will not be considered. In order to more speedily process applications, NMFS encourages that applicants not wait until fall 2012 to apply. As such, NMFS seeks to alert potential applicants that the agency will be able to render decisions before the close of the 2012 calendar year on all applications submitted on or before September 1, 2012.

To further assist in the application process, NMFS will attempt to exempt permit holders from having to gather and submit documentary proof of their qualification criteria if NMFS already has the proof in its databases. NMFS expects that it already possesses proof of the qualification criteria in its databases for the majority of expected applicants. In such cases, NMFS will notify potential applicants that they need only apply for access, but that they do not need to submit proof of the qualification criteria along with the application. In some circumstances, however, NMFS does not already possess proof that the applicant meets the qualification criteria. In these situations, potential applicants will be required to provide such proof themselves along with their application. The regulatory text of this final rule contains more information on the type of documentary proof required. All Federal lobster permit holders will maintain the opportunity to elect Area 1 for trap gear on their 2012 Federal fisheries permit while NMFS is receiving and processing applications. The 2012 Federal fishing year began on May 1, 2012. All those who elect Area 1 on the 2012 Federal fisheries permit will be able to fish with traps in Area 1 for the entire 2012 fishing year, even if their application for continued access to the Area 1 lobster trap fishery is denied before the end of the 2012 fishing year. In other words, NMFS's Area 1 trap eligibility decisions will not become effective until the 2013 Federal fishing year, on May 1, 2013. For the 2013 Federal fishing year, those whose applications are approved will be able to elect Area 1 for trap gear on their Federal lobster permit and fish in the Federal waters of Area 1 with traps. Those whose applications for Area 1 eligibility are denied will not be eligible to elect Area 1 for trap gear on their 2013 Federal fisheries permit and may no longer fish with traps in the Federal waters of Area 1; however, they will maintain their Federal limited access lobster permits and may fish for lobster in Federal waters, including the Federal waters of Area 1, with non-trap gear. Individuals who have been denied access, but who have appealed, may be allowed to use trap gear in Area 1 during the pendency of the appeal subject to the discretionary approval of the Regional Administrator. This appeals process is set forth in detail in the Regulatory Text of this final rule. If an application is still under initial review when the permit renewal period begins for the 2013 fishing year (permit applications are normally sent out in February or March in advance of the new fishing year start date of May 1), the permit holder may be authorized to designate Area 1 for trap gear on the 2013 Federal fisheries permit while the application is under review.

The proposed rule solicited public comments through January 3, 2012. During the comment period, NMFS received comments from 18 persons and entities, which are broken down as follows: One from the Commission; three from the states of Massachusetts, New Hampshire, and Maine; two from Area 1 lobstermen's associations (Massachusetts Lobstermen's Association and Maine Lobstermen's Association); two from private stakeholder groups (the Humane Society of the United States and the New Jersey Council of Diving Clubs); six from Area 1 fishermen; and four from private citizens. Of that total, 11 comments supported the proposed rule; 3 comments were neither in support or opposition of the Area 1 Limited Entry Program; and 4 opposed the Area 1 Limited Entry Program. Some persons and entities made multiple comments in a single response. The specific comments and our responses are as follows.

Comment 1: Eleven individuals and entities—including the Commission, state governments, Lobstermen's Associations, and three Area 1 lobstermen—supported the Area 1 limited entry program proposal set forth in the proposed rule.

Response: NMFS agrees that the proposed rule, now final, will provide the best means of capping trap fishing effort in the Federal waters of Area 1 and that it is well designed to prevent trap fishing effort from increasing in the Federal waters of Area 1. The final rule is substantially identical to the lobster industry's proposal and Commission recommendations set forth in Addendum XV and will allow NMFS to act in such a way that not only satisfies Federal statutory mandates, but that also allows NMFS to support the Commission's ISFMP for American lobster in a coordinated fashion.

Comment 2: An Area 1 fisherman supported the proposal for an Area 1 Limited Entry Program in the Federal waters of Area 1 due to the increased regulations in other lobster management areas (such as Area 2 and the Outer Cape Cod Lobster Management Areas) and because of increased regulations in other fisheries (such as new regulations, including sector management in the groundfish fishery). As a result, there exists great potential and incentive for trap fishing effort to be re-directed into Area 1.

Response: NMFS agrees and notes that this potential scenario for trap effort shift into Area 1 provided the genesis for industry's Area 1 proposal in Commission Addendum XV. NMFS analyzed this potential threat in its EA and agrees that the potential for effort shift is real and that it could potentially flood the Area 1 trap fishery with new fishers, therein upsetting local lobster stock and fishery stability, and undermining existing social and cultural lobster fishing traditions. This issue is discussed in more detail in the Purpose and Need for Management section and Background section of this final rule.

Comment 3: One respondent supported the proposed rule's Area 1 Limited Entry Program, but also recommended increasing the legal size limit for lobsters and reducing the standard trap allocation for each vessel from 800 traps to 600 traps to prevent overfishing.

Response: NMFS is implementing the Area 1 limited entry program as described in this final rule. NMFS is not implementing lobster size and trap reductions in this rule. Lobster size limitations and trap restrictions currently exist in Area 1 and remain a management tool that could be modified in the future if scientists, stakeholders, and managers believe it appropriate. At present, however, such limitations and restrictions are not within the scope of this final rule.

Comment 4: The Maine Department of Marine Resources, while strongly supporting the Area 1 limited entry program as set forth in the proposed rule, recommended that we make the eligibility decisions early enough to simplify the issuance of 2013 lobster trap tags by the State.

Response: The final rule timeline attempts to allow for good coordination between the states and the Federal Government. In response to Maine's recommendation, we adjusted our program to offer an incentive to lobster permit holders to apply early to allow more eligibility review time and improve the chances of finalizing all the eligibility determinations prior to the start of the 2013, fishing year. As such, permit holders who submit an application prior to September 1, 2012, will be given priority review, with the intent of providing them with a final eligibility decision, to the extent practicable, in time for the 2013, fishing year which begins on May 1, 2013.

The application timeline should allow NMFS to make most application decisions in time to coordinate with Maine and other involved states before the states' fishing year begin in earnest. This final rule will allow applicants to apply for entry into the Area 1 trap fishery almost immediately upon the publication of this rule and subsequent solicitation of applications by NMFS. Although permit holders will have until November 1, 2012, to apply, NMFS is offering an incentive to permit holders who apply on or before September 1, 2012—namely, that the agency will make every effort to make a decision on that permit holder's application in 2012 if the application is received on or before September 1, 2012. Accordingly, NMFS expects that most Area 1 application decisions will be made before January 1, 2013. In addition, because the results of NMFS's application decisions will not take effect until May 1, 2013 (the start of the Federal fishing year), and because January, February, and March are the least active lobster fishing months, NMFS anticipates having sufficient time, prior to the start of the fishing season and the Federal fishing year, to coordinate with the states over the qualification results.

Comment 5: One state agency suggests that NMFS utilize the relevant data on-hand to make a determination on each permit's Area 1 eligibility and then simply notify permit holders and inform them as to whether or not they are qualified to fish with traps in the Federal waters of Area 1. A different state agency expressed concern that automatic qualification would qualify permits that have since left the Area 1 trap fishery and thus create incentive for effort shift back into Area 1.

Response: While NMFS does not intend to automatically qualify permit holders, the final rule authorizes the Regional Administrator, at his or her discretion, to waive documentary obligations for certain elements of the qualification criteria for an applicant if NMFS itself has clear and credible evidence that will satisfy that qualification criteria for the applicant, as explicitly stated in the regulatory text in this final rule.

Nevertheless, this final rule requires potential applicants to affirmatively apply for entry. In choosing this application procedure, NMFS seeks a balance. Although there would be no burden to the permit holder were NMFS to automatically determine the eligibility of each permit, NMFS does not think it overly burdensome for otherwise qualified permit holders to fill out the one-page application form by checking the appropriate box, signing the application, and mailing it to NMFS. NMFS is reluctant to automatically qualify permit holders into the Area 1 trap fishery because some of those qualifiers might have no interest in fishing in Area 1. NMFS is aware that there are some permits with qualified history that, for whatever reason, are either inactive or have been sold out of the Area 1 trap fishery. Automatically qualifying permits that are no longer in the Area 1 trap fishery and have no interest in fishing in Area 1 will increase latent effort by allowing the automatic re-introduction of effort into the fishery that may have migrated elsewhere, which does not advance the overall spirit of the Lobster Plan's Area 1 Limited Entry Program. As a result, the final rule application procedure requires some effort, albeit minimal, for an otherwise qualified applicant, but advances the overall objectives of the Area 1 Limited Entry Program better than if NMFS were to automatically qualify individuals.

Comment 6: An Area 1 fisherman commented on whether he will be able to buy a Federal lobster permit after 2012; and if a person bought a permit in 2011, will they be able to use it after 2012?

Response: The final rule limits Area 1 trap fishing access to permits that have a certain history of Area 1 trap fishing. Any Federal lobster permit holder who wishes to fish for lobster with traps in Area 1 beginning May 1, 2013, must submit an application under this program prior to November 1, 2012, and be deemed eligible for future participation in the Area 1 lobster trap fishery. If the purchased permit's fishing history meets the criteria set forth in this final rule, then it would qualify and an individual would be able use it to fish with traps in the Federal waters of Area 1 on May 1, 2013, when the rule takes effect. If the purchased permit's history does not meet the rule's criteria, then a person would not be able to use it to fish with traps in Area 1 as of May 1, 2013. Such a permit, however, would still authorize lobster fishing in Area 1 without traps. Finally, the rule does not regulate, much less restrict, the purchase, sale, or transfer of those permits.

Comment 7: The Humane Society stated that the Area 1 800-trap limit may lead to excessive vertical lines in the water that pose a threat to endangered large whales. This commentator suggests that NMFS coordinate internally with its Protected Resources Division to reduce traps and thus further reduce vertical lines in the water.

Response: NMFS staff has coordinated internally regularly throughout this rulemaking process. Although reducing vertical lines is not the purpose of this final rule and is beyond its scope, NMFS is and has been very much aware of the Protected Resources Division's efforts in this regard, and NMFS's EA suggests that the Area 1 limited entry program will have some ancillary, albeit unquantifiable, benefits to whales, threatened, and endangered species.

Comment 8: The New Jersey Council of Diving Clubs recommended that the Area 1 Limited Entry Program should pertain to commercial fishermen and not divers who are recreational fishermen. Further, the respondent commented that unless the Area 1 lobster population shows a decline, then a limited entry program should not be put in place due to economic complications and unfairness. Finally, the respondent commented that the potential effort restrictions on the southern New England stock should apply only to Area 2 (nearshore EEZ from southern Massachusetts to Rhode Island), and Area 6 (Long Island Sound), because those are the only areas that have shown a decline due to environmental conditions.

Response: The final rule applies to all Federal lobster permit holders who fish with traps. As such, it is not anticipated to impact divers and it in no way suggests, as the respondent was concerned, that trap fishing is the only allowable way to catch lobster. The rule itself was originated from the Area 1 lobster trap fishing industry specifically because they did not want to wait until they were in the midst of decline before protecting their fishery. The genesis and rationale of the rule are discussed in greater detail in the Supplementary Information section of this final rule. The southern New England lobster stock problem is the subject of ongoing deliberation and development of mitigation measures by the Commission and is beyond the scope of this present rulemaking.

Comment 9: One respondent opposes the Area 1 limited entry program in the Federal waters of Area 1 on grounds that it may limit the environmental, economic, and social significance of lobster in Maine. The respondent commented that the impact on small quantity lobster catchers could have a big impact on small businesses in the area and recommends that the fishery remain unregulated and trap levels increased.

Response: It is for those very reasons—i.e., the environmental, economic, and social significance of lobster in Maine—that the Area 1 trap lobster fishery requested that the Commission, and thereafter NMFS, cap trap fishing effort and implement this final rule. Specifically, many members of the Area 1 lobster trap fishery became concerned that restrictions in other fisheries (e.g., restrictions in other lobster management areas and restrictions in other commercial fisheries, like groundfish) might squeeze new trap effort into Area 1. This new trap fishing effort could have the potential to upset local lobster stock stability, and undermine existing social and cultural traditions. NMFS analyzed the final rule's potential impact on small businesses and concluded that the rule would not have a significant impact, largely because this rule is expected to maintain the existing economic structure of the fishery. In other words, those who fished for lobster with traps in Area 1 in the past are expected to qualify to fish for lobsters with traps in the future. These economic impacts are discussed in greater detail in this final rule in the section entitled “Economic Impacts of the Proposed Rule on Small Entities.” NMFS disagrees with the respondent's statement that the fishery is unregulated—with or without this rule, the lobster fishery is and would remain highly regulated. In fact, lobster has been regulated for well over a century—regulations prohibiting the harvest of egg-bearing lobsters (similar to present regulations) date back to 1872. The respondent gives no reason in support of her suggestion to increase trap levels, which would, in any case, be beyond the scope of this particular rule.

Comment 10: One lobsterman stated that the economy is not good and that the proposed rule could impact local economies by putting people out of business.

Response: NMFS has taken a hard look at the LCMT's and Lobster Board's recommended criteria and concluded that its economic impacts should be minimal. As a preliminary matter, NMFS analysis suggests that the number of permits actively fishing with traps in Area 1 has remained relatively static from 2000 to 2010, including during the 2008 Federal fishing year, which is one of the criteria. As such, the analysis confirms that the LCMT and Lobster Board criteria did not focus on an anomalous year or capture aberrant data in its proposal. Accordingly, although there may be a few individual instances where a specific permit was active one year but not the next, the data suggests that most of the Area 1 permit holders who fished with traps in the recent past will likely qualify under the final rule criteria. Further, NMFS analysis of its Confirmation of Permit History (CPH) database (where inactive permits can be stored) suggests that no permits existed in CPH during the 2008 fishing year that were otherwise active in the Area 1 trap fishing immediately before and after that year. In other words, permits with Area 1 trap fishing history existed in CPH in 2008, but those permits were inactive for longer periods of time than that 1 year (e.g., they went into CPH before 2008 and/or still remain in CPH, or were taken out of CPH after 2008). A more detailed analysis is set forth in NMFS EA for this action, as well as the section entitled “Economic Impacts of the Final Rule on Small Entities.”

Comment 11: One lobsterman stated that the notification of the proposed rule was not widespread. A different lobsterman counters that the Area 1 limited entry proposal was well known, publicly debated, and “* * * should not be news to anyone.”

Response: The Commission's Area 1 limited entry program, including the control date, was the subject of much public debate both before and after January 2, 2009. As a preliminary matter, the Area 1 LCMT, which is made up of lobstermen from Maine, New Hampshire, and Massachusetts (including representatives from the Maine Lobstermen's Association, New Hampshire lobster industry, and Massachusetts Lobstermen's Association), initially proposed the idea of a limited access program with a control date. More specifically, the industry-based Area 1 LCMT had numerous public meetings and discussions on the issue and ultimately voted on and approved the concept in the summer of 2008. Next, the LCMT forwarded their proposal to the Commission's Lobster Board. The Lobster Board is made up of three members from each of the involved states, including a state's director of marine fisheries, as well as an appointee of the state governor, and a member of the state legislature, all of whom are politically accountable to the respondent. In October 2008, after public discussion at the Lobster Board's public meeting, the Board voted to recommend the use of a control date suggested by the LCMT. The vote was unanimous and included all members of the respondent's state delegation. Media coverage of the Lobster Board's approval appeared in the Commercial Fisheries News in November 2008. NMFS published notice of the control date in the Federal Register on January 2, 2009. The Area 1 LCMT and the Commission's Lobster Board continued to conduct public meetings on the issue after the January 2009 control date publication. Ultimately, the Lobster Board adopted the Area 1 limited access plan at a public meeting on November 3, 2009, which was also reported in the media. Public comments on the specific dates and criteria used were sought and received throughout this time period. The final rule, in fact, liberalizes the control date cut-off used in this rule based upon information that it has received during this time period in consideration of those permit holders who did not renew their 2008 Federal lobster permits prior to the control date.

Comment 12: One lobsterman commented that while the proposed rule accomplishes its objectives in preventing trawl vessels and non-Area 1 trap fishers from fishing with traps in Area 1, it “changes course” and over-reaches its objectives by also restricting latent (inactive) permits with Area 1 fishing history.

Response: Activation of latent effort is and has always been a concern of the LCMTs, Lobster Board and NMFS, not only in Area 1, but in the lobster fishery in general. Latent effort is potential effort. It is effort that was dormant at the time in question (regardless of whether it was active some time beforehand) but that could become active in the future. Although latency is fluid, constantly changing, and impossible to precisely calculate given existing data, industry and managers alike know it exists and that latency may represent a relatively high percentage of existing permits in certain management areas in any one year. Accordingly, even if draggers and non-Area 1 trap permits were restricted, effort in Area 1 could still increase precipitously simply by activation of this latent effort. The LCMT and Lobster Board decided that increased trap effort is a threat regardless of its origin, i.e., be it from draggers or non-Area 1 permits or latent Area 1 permits. See response to Comment 9 for additional detail on the effort shift threat. In choosing its criteria, the Area 1 LCMT and Lobster Board attempted to address this threat by recommending that effort be capped, not at past levels, nor at future levels, but at current levels as it actively existed in 2008 when the decision was made. NMFS liberalizes these criteria somewhat by extending the proposed January 2, 2009, control date to April 30, 2009, but NMFS nevertheless understands the rationale behind the LCMT and Lobster Board recommendation and finds it reasonable.

Comment 13: One lobsterman from Maine commented that he knew of individuals that recently purchased Federal Area 1 permits that might have been latent (inactive) during the time-period set forth in this final rule's criteria, and that it is unfair for these individuals to have wasted their money purchasing a permit without knowing that a new regulation might render the permits “worthless.”

Response: NMFS has reviewed and analyzed the recommended criteria and has concluded that it is reasonable and rationally related to the objectives it seeks. In short, the LCMT and Lobster Board sought to cap effort at existing levels, with the term “existing” meaning permits that were active in 2008. NMFS even liberalized the criteria in an attempt to accommodate permit holders who were in the midst of permit transactions when the control date ANPR was published in the Federal Register in January 2009. Nevertheless, the possibility of this rule was well known, or should have been well known, to all permit holders years before NMFS published its proposed rule. Lobster regulations have existed in the commentator's home state for well over 100 years and it remains amongst the most highly regulated of all fisheries. The final rule's criteria were developed by local lobster fishers, including lobstermen from Maine, and approved unanimously in public meetings by the Commission's Lobster Board including politically-appointed, and thus accountable, members of the commentator's state delegation. For additional public notice information, see response to Comment 10.

Unfortunately for the commentator, rules by their very nature draw lines that include some and exclude others. That is, in fact, the very purpose of this rule—to include trap fishing effort that was active in 2008 and to exclude trap fishing effort that was not. While NMFS expects that some applicants will not qualify for trap fishing access, NMFS's analysis suggests that very few permit holders will be impacted and none impacted in a way that has not been previously considered. Non-qualified permits will not be worthless; they simply will not allow trap fishing in the Federal waters of Area 1. All other attributes of the permit—including lobster fishing in Area 1 without traps—will remain.

Comment 14: The New Hampshire Department of Fish and Game commented that some New Hampshire lobstermen have purchased “state-only” tags, even though they were authorized to fish in Federal waters, and were concerned that New Hampshire's administrative process might unintentionally prevent its lobstermen from qualifying.

Response: In an effort to avoid duplication, NMFS and several lobster fishing states agreed that trap fishers with dual state and Federal permits did not need to have both state trap tags and Federal trap tags on the same trap. Depending on the circumstances, the lobsterman could get his trap tags from his state or from NMFS and either entity would recognize and accept a trap tag from the other. The specifics of these agreements are set forth in various Memoranda of Agreements (MOA) between NMFS and the states. Given that differing entities (i.e., the various state and Federal governments) issue trap tags, NMFS is aware that the issued trap tags, although quite similar, are not identical in the information they convey. Accordingly, NMFS is not surprised to learn that a state might issue trap tags to a dual state/federal permit holder under its MOA with NMFS, yet have those trap tags contain little Federal information. NMFS does not intend this present rule to elevate form over substance and NMFS would not deny access to an otherwise qualified Federal Area 1 trap fishers based upon the circumstances described in this comment.

Comment 15: One person commented that he was confused about the purpose of this action and, if the intent is to reduce the number of lobsters taken from Area 1, then limiting the number of fishermen will not be effective.

Response: The intent of this final rule is not to limit the number of lobster taken out of Area 1. The intent is to maintain the sustainability of the Area 1 lobster stock and fishery by preventing the migration of trap fishing effort from other areas and other gear types into Area 1. We assert that capping effort at recent levels, as recommended by the Area 1 lobster industry and the Commission, will effectively control effort in the fishery by maintaining the economic structure in the fishery while continuing to allow opportunities for others to purchase existing Area 1 trap permits. This action does not strive to reduce the lobster harvest in Area 1. The most recent assessment of the Gulf of Maine lobster stock, conducted in 2009, indicates that the stock, overall, is in favorable condition. However, the assessment cautioned that uncontrolled access into the trap fishery could lead to an increase in trap fishing effort which could be detrimental to the long-term sustainability of the stock. It was that advice, and the potential for migration of permits into Area 1 from other areas and other fisheries due to a lack of controls on the number of Federal trap permits in Area 1, that initiated action by the industry and the Commission to recommend a limited entry program for the Area 1 trap fishery.

Comment 16: One Area 1 lobsterman from Maine who supports the proposal, recommends that an apprenticeship program be established for the Federal fishery to facilitate participation by those who are responsible stewards of the resource.

Response: Most, if not all Federal permit holders hold some type of state lobster license, either a fishing or landing license. The majority of Area 1 Federal permit holders reside in Maine and are subject to the apprenticeship requirements and other regulations that control entry into the fishery. Since Federal lobster permits are issued to vessels and not people, an apprenticeship program would be difficult to implement, especially because the permit holder is not necessarily the operator of the permitted vessel. We contend that the state-implemented controls on fishermen, including the apprenticeship program in Maine, are sufficient to instill a level of responsible stewardship among lobstermen. This concept is outside the scope of this action and is best addressed at the state level.

There are no changes in substance from the proposed rule. There are, however, four minor changes to the text of the final rule where clarifying language was added. In § 697.4(a)(7)(vi), the words “after April 30, 2013,” and “or have an open pending application to fish in the area” were added to clarify that if an application was still under initial review the applicant would be able to designate Area 1 for trap gear on their Federal fisheries permit application for the 2013 fishing year.

In § 697.4(a)(7)(vi), the words “the Federal waters of” were added to make clear in the regulatory text that the limited access program relates only to the Federal waters of Area 1. In § 697.4(a)(7)(vi)(A)(3), the term “Area 1” was added to make it clear that trap tag criterion related specifically to an Area 1 trap tag and not a trap tag from a different area. In § 697.4(a)(7)(vi)(B)(3), the term “Area 1” was added to make it clear that the documentary proof requires evidence of a trap tag from Area 1. None of these additions are changes in substance—the Background section of the proposed rule makes clear that the program relates to the Federal waters of Area 1 and that the trap tag criterion relates to the purchase of an “Area 1 lobster trap tag during any year from 2004-2008.” The additions were simply added for the purpose of clarity.

This final rule enacts regulations that will require any Federal lobster permit holder who wishes to maintain access to the lobster trap fishery in the Federal waters of Area 1, to submit an application to NMFS by November 1, 2012. Each applicant must meet the eligibility requirements to retain the ability to fish with up to 800 lobster traps in Area 1 beyond the 2012 Federal fishing year. Those eligibility requirements are provided under SUPPLEMENTARY INFORMATION and are fully discussed throughout this final rule.

Those permits that meet the eligibility requirements will be issued an Area 1 lobster trap permit for the 2013 Federal fishing year which begins on May 1, 2013. Those that do not meet the requirements will maintain a limited access Federal lobster permit, but the permit will no longer be eligible to fish with trap gear in the Federal waters of Area 1.

This final rule also provides the opportunity for a permit holder whose application for Area 1 trap fishery access is denied to appeal the decision. The process for this provision is detailed in the Regulatory Text of this final rule.

This proposed rule has been determined to be consistent with the provisions of the Atlantic Coastal Act, the National Standards of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration and public comment. Paragraphs (A) and (B) of section 803(b)(1) of the Atlantic Coastal Act authorize the Secretary of Commerce to issue regulations in the EEZ that are compatible with the effective implementation of an Interstate Fishery Management Plan developed by the Commission and consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.

This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.

This final rule does not contain policies with federalism implications as defined in E.O. 13132. These measures are based upon the lobster ISFMP that was created by and is overseen by the states. These measures are a result of Addendum XV, which was approved by the states, recommended by the states through the Commission for Federal adoption, and is in place at the state level. Consequently, NMFS has consulted with the states in the creation of the ISFMP, which makes recommendations for Federal action. Additionally, this final rule will not pre-empt state law and will do nothing to directly regulate the states.

This final rule contains a collection of information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). A PRA analysis, including a revised Form 83i and supporting statement have been reviewed and approved by OMB under control number 0648-0642. The PRA analysis evaluates the burden on Federal lobster permit holders and the Federal Government resulting from the Area 1 application and appeals process.

There are two types of applicants evaluated in the PRA analysis as summarized here—those for whom NMFS already has sufficient documentary information to satisfy the proof required and thus will need only to sign and remit an application form, and those for whom NMFS does not presently have sufficient documentary information and thus will need to remit an application form along with documentation to support the qualification criteria. For those permit holders in the former category, NMFS will notify the approximately 1,643 permit holders for whom there is sufficient evidence to show that the permit will qualify for Area 1 access, should the permit holder decide to return a pre-printed letter with his/her signature. The estimated burden for each of these applicants is 2 minutes, and the cost is estimated at $0.74 to mail the letter. NMFS expects all such permit holders to submit an application, with a total burden of 54.8 hours (hr) and $1,216 to the permit holders.

The remaining 1,509 permit holders, those whose permits for which NMFS does not have pre-existing documentary evidence, will be sent a letter indicating that insufficient information is on-hand to qualify the permit. NMFS estimates that 288 of the 1,509 permit holders for which NMFS does not have pre-existing documentary evidence, will apply for Area 1 trap fishery access. These 288 permit holders represent the 224 whose permits had an Area 1 trap gear designation during the 2008 fishing year, but did not have a record of purchasing a trap tag between 2004-2008. The additional 64 permit holders are the estimated 5 percent of the 1,285 Federal lobster permit holders who did not have either an Area 1 designation in 2008 or a trap tag purchase record, but whom may submit an application anyway. The burden is estimated at 22 minutes for each applicant considering the time estimated to locate documents to support the qualification criteria and sign the application. The estimated cost per applicant is $1.14. The cumulative cost for this category of applicants is 105.6 hr and $328. NMFS hypothesizes that roughly 28 applicants who are denied might appeal. The estimated appeals burden on each appellant is 30 minutes and $4.22. The cumulative burden for all appellants is 14 hr and $118. Overall, the total program burden on the combined number of affected Federal permit holders is calculated at 174 hr and $1,662.

Burden on the Federal Government to implement the program includes the labor and material costs of communicating with the applicants, reviewing and making a determination on the applications, and processing appeals. The total burden of the program on the Federal Government is 941 hr of labor, calculated to cost $26,815. Material costs to the Federal Government include those for paper, envelopes, postage and other supplies associated with mailings, processing the applications, and appeals. When the estimated material costs of $3,678 are considered, the overall total costs to the Federal Government to implement this program are estimated at $30,493.

The proposed rule for this action solicited public comments on the burden estimates of this action. In response, a state fisheries agency suggested that NMFS utilize the relevant data on-hand to make a determination on each permit's Area 1 eligibility and then simply notify permit holders and inform them as to whether or not they are qualified to fish with traps in the Federal waters of Area 1. In contrast, a different state agency expressed concern that automatic qualification would qualify permits that have since left the Area 1 trap fishery and thus create incentive for effort shift back into Area 1. This issue was addressed in response to Comment 5 in the Comments and Responses.

We considered this issue and seek a balance. This rule will require all permit holders to submit an application to avoid automatically qualifying permits that may no longer be involved in the Area 1 trap fishery, but may qualify. To automatically qualify, such permits would increase latent effort in the Area 1 trap fishery and compromise the intent of this effort control program. Although we will require all permit holders to actively apply, we acknowledge that we have the information on-hand to qualify the vast majority of eligible Area 1 trap permits. Consequently, we will minimize the burden by informing those permit holders that we have sufficient information to qualify their permit and they need only sign and remit the application form requesting that their permit be considered for eligibility for the Area 1 trap fishery. Those permits holders for whom we do not have sufficient information available to make the determination on their permit will be requested to remit documentation in support of the eligibility criteria. This approach requires a limited level of burden on otherwise qualified permit holders without undermining the effort control intent of this action.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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.

NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) as required by section 603 of the Regulatory Flexibility Act (RFA). The FRFA describes the economic impact this final rule will have on small entities. Copies of the FRFA, RIR, and the EA prepared for this action are available from the Northeast Regional Office (see ADDRESSES ). A description of the action, the reason for consideration, and its legal basis are contained under SUPPLEMENTARY INFORMATION .

This final rule will affect small entities engaged in several different aspects of the lobster fishery. The affected entities include Federal lobster trap and non-trap permit holders and this rule will limit future participation in the Area 1 lobster trap fishery to historical participants that meet the eligibility requirements as described under SUPPLEMENTARY INFORMATION section.

None of the public comments received in response to the proposed rule raised any significant issues, meaning that nothing new was presented that caused NMFS to change course with respect to the policy and regulations to implement a limited entry program for the Area 1 lobster trap fishery. Of the 18 comments received in response to the proposed rule, the majority, or 11 comments, fully supported the proposed rule; 3 comments neither supported nor opposed the Area 1 limited entry program; while 4 opposed the Area 1 limited entry program. A summary of the comments received as well as detailed responses to each comment are provided under Comments and Responses.

Although not significant in relation to this final rule, the content of some comment submissions raised issues that afforded us the opportunity to more fully analyze the impacts of this action on certain entities to assure that our initial impact analysis, prepared in support of the proposed rule, was accurate and comprehensive. Additionally, we made non-regulatory and esoteric changes to this program's application submission process to allow for a more timely review and decision-making period to the benefit of affected permit holders, state agencies, and NMFS.

First, comments from state agencies recommended that we attempt to make all eligibility decisions prior to the start of the 2013 state lobster fishing year, which begins January 1, 2013. The intent of this request was to assure that the states had the appropriate information to indicate whether a permit was qualified for Area 1 trap fishing to simplify the authorization for the permit holder to purchase 2013 lobster trap tags. Under agreements with certain states, NMFS allows Federal permit holders to purchase lobster trap tags annually from their home state. The regulations set forth in this rule, consistent with those in the proposed rule, allow permit holders to apply for Area 1 eligibility until November 1, 2012. However, we are alerting the public in this final rule that we will be accepting applications as early as 30 days after the date of this final rule and that those who choose to apply early, that is by September 1, 2012, will be assured, to the extent practicable, of a final decision for the 2013 Federal fishing year, which begins on May 1, 2013. This change was only programmatic in nature and is not linked to the regulatory text of this final rule. Although we expect to have all decisions made by the end of the 2012 calendar year as requested by the states, the revised process provides an incentive to the permit holder to apply early and will give us more time to review and make decisions on each application. See Comments and Responses for additional information.

Additionally, we received a comment outside of the comment period that questioned the impact to Federal permits which were in Confirmation of Permit History (CPH) status during the 2008 Federal fishing year—the critical period during which a permit must have had an Area 1 trap gear designation in order to qualify. Since this is one of the eligibility criteria, a permit that was in CPH status during the entire 2008 Federal fishing year would not qualify because it was inactive during that critical year. This comment prompted us to explore this issue in more depth. Our subsequent analysis revealed that this situation would not result in a significant group of otherwise active Area 1 permit holders who would not qualify while their permit was in CPH due to a temporary absence from the fishery.

This issue is explained in detail under Federal Lobster Permits in Confirmation of Permit History in Description and Estimate of the Number of Small Entities to Which the Final Rule Applies under SUPPLEMENTARY INFORMATION.

This final rule will limit entry to the Area 1 lobster trap fishery for any small entity engaged in the harvesting of lobsters that hold a Federal limited access lobster permit. During fishing year 2008 there were a total of 3,152 such permitted vessels. Note that fishing year 2008 permit data were used in the assessment of economic impacts in the EA. A review of fishing year 2009 and fishing year 2010 permit application data found that there was no change in either gear (trap/non-trap) or LCMA designations for more than 98 percent of all valid permits issued during fishing year 2008, fishing year 2009, and fishing year 2010. For this reason, fishing year 2008 permit data are considered reasonably representative of fishing year 2009 and fishing year 2010 permit status and are used herein for purposes of analysis.

Under current regulations any fishing business may fish for lobsters with trap gear in Area 1 provided it has been issued a valid limited access lobster permit, it designates Area 1 as part of the annual permit renewal process, and it purchases Area 1 trap tags. However, of the 3,152 limited access permit holders, 1,867 permits elected to fish using trap gear in Area 1 on their permit while the remainder either elected to fish for lobster with non-trap gear or did not designate Area 1 on their 2008 permit application. Thus, while the option to fish in Area 1 with trap gear sometime in the future will be curtailed for about 40 percent of limited access lobster permit holders, this final rule will have a more immediate impact on permitted vessels that may already be participating in the Area 1 trap fishery. Note that this action will only limit entry to the Area 1 lobster trap fishery. Any Federal limited access lobster vessel that may not qualify will still be able to fish for lobster in Area 1 using non-trap gear.

The small business size standard for businesses engaged in a commercial fishing activity is $4 million in gross sales. The number of regulated entities most likely to be affected by this action is expected to be 1,867 limited access permit holders who designated Area 1 on their 2008 permit application. The number of these entities that may be above or below the Small Business Administration (SBA) size standard is indeterminate. Unlike most other federally managed fisheries, the lobster fishery is not subject to mandatory reporting. This means that gross sales for entities that possess only a Federal limited access lobster permit, which is the case for a majority of permitted vessels, particularly in Area 1, cannot be reliably determined. For purposes of further analysis, all 1,867 regulated entities are considered small entities.

NMFS evaluated three management alternatives prior to moving forward with the preferred alternative set forth in this final rule. One alternative, the status quo alternative, would make no changes to the Federal lobster regulations and would continue to allow any Federal lobster permit to gain access into the Area 1 lobster trap fishery. This alternative provides the greatest potential for trap fishing effort to proliferate in Area 1. The status quo alternative was not selected because it was counter to the recommendations of the Commission and the Area 1 lobster industry, as well as the scientists of the Commission's Lobster Technical Committee who cautioned that unchecked lobster trap fishing effort could jeopardize the sustainability of the Gulf of Maine lobster stock and the Area 1 lobster fishery.

A second management alternative we analyzed was the Commission's alternative. This alternative would have implemented changes to the Federal lobster regulations to limit access into the Area 1 lobster trap fishery by employing the eligibility criteria adopted by the Commission in Addendum XV. The only difference between the Commission's alternative and the preferred alternative established in this final rule is that the Commission's alternative adopted a January 2, 2009, control date which is the date that NMFS published the ANPR in the Federal Register (74 FR 67) to notify the public that an Area 1 trap fishery limited entry program was under consideration. Consequently, Area 1 trap fishery eligibility under the Commission's alternative would require that a permit had an Area 1 trap tag purchase during any year from 2004-2008 and that the permit was active for the 2008 fishing year with an Area 1 designation prior to January 2, 2009. January 2, 2009, falls in the middle of the 2008 fishing year and would not effectively capture all Area 1 Federal lobster permits that were active during that fishing year.

In contrast, the final rule will qualify any Federal permit holder that designated Area 1 on their 2008 permit application at any time during the 2008 fishing year (May 1, 2008 to April 30, 2009), and had a record of purchasing Area 1 trap tags in any year during 2004-2008. The qualification criterion regarding the date when the 2008 permit application had to be received is less restrictive than the January 2, 2009, control date recommended by the Commission. An additional 32 permit holders would likely qualify under this adopted alternative as opposed to the Commission's alternative. These 32 permits, however, do not represent new or additional effort, and is such a small number that it would likely have no measurable impact on the species. The Commission, states and industry groups support this alternative as following the spirit and intent of their recommendation. As such, the final rule will be less burdensome for regulated small entities than the Commission's alternative, because it provides an opportunity for more affected entities to qualify for limited access to the Area 1 trap fishery, while remaining consistent with the Commission's intent to cap the number of Federal lobster trap permits in Area 1 at 2008 levels.

Based on the qualification criteria, 1,643 (88 percent) of the 1,867 potentially affected small entities will qualify for the Area 1 trap fishery. Note that the Commission's alternative would have qualified 32 fewer regulated small entities. The 224 potential non-qualifiers—calculated by taking the 1,867 permit holders that designated Area 1 in 2008 and subtracting the 1,643 expected qualifiers—are permit holders for which NMFS has no record of having purchased Area 1 trap tags in any year from 2004 to 2008. Further analysis of these non-qualifiers suggest that the majority had selected non-trap as a gear type during 2008, or had selected other LCMA's in addition to Area 1, or based their fishing operation in states that do not border the Gulf of Maine. NMFS asserts that these potential non-qualifiers likely elected Area 1 on their permit out of speculation, not because they were fishing there. Specifically, 49 of the 224 non-qualifiers listed a homeport state of Rhode Island, New York, New Jersey, Virginia, North Carolina, or other state. Of the 175 non-qualifiers from Maine, Massachusetts, or New Hampshire, 106 selected non-trap gear on their permit and 55 had elected to use trap gear in an LCMA other than Area 1. Thus, available data suggest that 92 percent of the non-qualifiers may not be economically affected by this rule because they are not engaged in the Area 1 trap fishery. The potential economic impact on the remaining 14 non-qualifiers is uncertain. These non-qualifiers did not select non-trap gear, nor did they select a trap area alternative to Area 1. Given the absence of any indication of trap fishing in Area 1, these 14 vessels may not be actively fishing for lobster at all.

This final rule will not implement any regulatory measures that will affect the manner in which qualifiers prosecute the Area 1 trap fishery and will not, therefore, have any direct economic impact on qualifying entities. As noted above, the majority of non-qualifiers that listed Area 1 are most likely using non-trap gear to fish for lobster, or are engaged in a lobster trap fishery in other LCMAs. The direct economic impact on these non-qualifying vessels is likely to be negligible in terms of their gross sales or profitability. However, these non-qualifiers, as well as the 1,285 permit holders that did not elect Area 1 on their 2008 permit (most of which did not select Area 1 in other years since), may suffer some economic loss in terms of the value of their fishing vessel. That is, the value of a fishing vessel depends on the condition of the physical asset itself, its fishing history, and the suite of limited access permits (i.e., an open access permit conveys no added value since there is no scarcity) that are attached to the vessel.

To the extent that limited access fishing permits may themselves be considered assets, any change in the rights or conditions affecting the current or future use of the permit affects its asset value. Limiting access to the Area 1 trap fishery will restrict the future use of a limited access lobster permit for non-qualifiers, hence some diminution of the contribution of the lobster permit to the value of the fishing business may occur. Notably, the permit value of Area 1 qualifiers may increase, since these permits will retain the access rights that will no longer be available to non-qualifiers. The magnitude of any such changes in permit value to either non-qualifiers or qualifiers is highly uncertain. There certainly is no indication or available data to suggest that the final rule will have anything other than a small, if any, impact on permit values.

If a Federal lobster permit was in CPH status during the entire 2008 fishing year, then it was inactive and the permit holder was not fishing under the permit. Consequently, the permit will not have an Area 1 designation for that year, will fail to satisfy that criterion, and would be considered ineligible for future participation in the Federal Area 1 lobster trap fishery.

To better understand the consequences of this rule and its potential impact on individuals who may have been active permit holders immediately before and/or after 2008, we conducted a review of all permits in CPH status during the 2008 fishing year. Specifically, we identified 34 Federal lobster permits that were inactive (in CPH status) during much of 2008, but that might have been active immediately before or after. Our investigation revealed that the vast majority of these permits never fished in Area 1 because they were associated with vessels from southern New England and points south and show a history of fishing in more southerly lobster management areas, or they had a history of fishing with mobile gear and not traps.

We focused our attention on 12 of the 34 permits that had a previous Area 1 trap gear designation and were taken out of CPH after the 2008 fishing year. We were interested in this group of permits because they represent a category of permit holders that may be most impacted the eligibility criterion that requires a 2008 Area 1 designation. Of these 12 permits, only one purchased trap tags during the required 2004-2008 period (in 2005 only). Since this permit did not have an Area 1 designation in 2008, it would not qualify. Nevertheless, it is not the type of permit that this rule (and the Commission and LCMT) strives to qualify, since the permit has not been an active Area 1 trap permit since 2005.

Overall, we found that our criterion requiring that a permit have an Area 1 trap gear designation during the 2008 fishing year did not create a significant group of non-qualifying permit holders, particularly those whose permits were in CPH status during that year. A more detailed analysis of this issue is provided in the EA.

To address industry concerns that catch limitations under the multispecies sector management program may prompt traditional multispecies fishermen to re-direct their efforts into the lobster trap fishery, we analyzed the potential impact of the proposed action on multispecies vessels that also hold Federal lobster permits. The sector management program implemented by Amendment 16 to the Northeast Multispecies Fishery Management Plan allows federally permitted multispecies (groundfish) vessels to form cooperative groups called sectors. Within each sector, the participating vessels combine their respective historical groundfish quotas, allowing them the flexibility to share and manage the cumulative quota of their sector. Those Federal multispecies vessels that do not participate in a sector may harvest groundfish on an individual basis, but must adhere to trip-based catch limits and days-at-sea. This component of the fleet is known as the common pool.

As part of this analysis, we analyzed the potential impacts of the proposed action on the dual lobster and multispecies vessels that participate in the common pool and will not qualify for the Area 1 trap fishery. We considered that these vessels may be most susceptible to restrictions in the multispecies fishery and may be most inclined to pursue the directed lobster trap fishery. Common pool vessels make up about half of the groundfish fleet, but share less than 10 percent of the overall groundfish quota for all species combined.

Of the 967 vessels that have both a Federal lobster and multispecies permit, 758 will probably not qualify for the Area 1 trap fishery under the proposed action. Of these, 51 permits are in the common pool category and hail from Area 1 ports. This final rule will prohibit these permit holders from transitioning into the Area 1 lobster trap fishery if restrictions on groundfishing, particularly those impacts on the more vulnerable common pool vessels, necessitate a change in fishing operations from groundfishing to the lobster trap fishery. On balance, we contend that this will result only in indirect negative impacts on these common pool fishers, since they do not have a previous history of fishing with traps, they had not previously taken advantage of the long-standing opportunity to transition into the Area 1 trap fishery, and refitting their vessels for trap fishing may be cost-prohibitive. Furthermore, restricting these non-historical participants from the Area 1 trap fishery is consistent with the Commission's recommendations in Addendum XV to cap effort at recent (2004-2008) levels.

In contrast to the number of dual multispecies and lobster permits that will not qualify for the Area 1 trap fishery under the proposed action, 209 vessels with both a Federal lobster and multispecies permit will qualify. Compared to the Commission's Alternative, five more Federal lobster permits with a multispecies permit will qualify under the final rule's criteria—two from Massachusetts and three from Maine. All five are in the common pool and hail from Gulf of Maine ports, thus the final rule decreases the number of affected common pool participants hailing from the Gulf of Maine ports, since the extension of the eligibility period will allow these vessels to qualify for the Area 1 trap fishery.

We took several steps to minimize the economic impact of this action on small entities. First, we extended the permit qualification period four months beyond the control date to consider all Federal lobster permits that elected Area 1 for trap gear on their 2008 Federal lobster permit, as discussed under the Final Rule section of this document. Ultimately, this will allow about 32 additional active Area 1 trap permits to qualify without compromising the effort control intentions of the Commission's plan. Second, we have set forth an application process that reduces the burden on the vast majority of Federal Area 1 lobster permit holders for whom NMFS already has sufficient information on hand to qualify the permit for the Area 1 trap fishery. This issue is described in more detail in the Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements section. Third, we will allow all Federal lobster permit holders to fish with traps in Area 1 for the remainder of the 2012 Federal fishing year while the application review process is underway to avoid short-term disruptions in current fishing practices. Finally, those permit holders who choose to apply early, that is by September 1, 2012, will be assured, to the extent practicable, of a final decision for the 2013 Federal fishing year, which begins on May 1, 2013. This issue is discussed in more detail under the Summary of Significant Issues Raised by the Public Comments section.

For the reasons set out in the preamble, 50 CFR part 697 is amended as follows: