We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0333; Directorate Identifier 2007-NM-236-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0170, dated June 15, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Saab has issued Service Bulletin 340-28-024, dated February 26, 2007; and Revision 01, dated May 21, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 218 products of U.S. registry. We also estimate that it would take about 80 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $12,900 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,207,400, or $19,300 per product.

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0335; Directorate Identifier 2007-NM-292-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2007-23, dated October 18, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Bombardier has issued Service Bulletin 601R-28-054, Revision A, dated August 7, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 692 products of U.S. registry. We also estimate that it would take about 21 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $2,417 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,835,124, or $4,097 per product.

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0339; Directorate Identifier 2007-NM-182-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We have received reports of cracks found at the anchor tab of the bulkhead seal assemblies of the wing thermal anti-ice (TAI) system on Boeing Model 757 airplanes. In one incident the anchor tab and bulkhead seal assembly had separated because of the cracks. The anchor tab of the bulkhead seal assembly was held in position with a bolt. If the anchor tab fails, the TAI spray tube disconnects from the TAI duct, and it could not supply sufficient airflow for the wing TAI system. If the flight is in icing conditions and there is insufficient airflow, it could cause ice to form on the wings. These conditions, if not corrected, could result in reduced controllability of the airplane.

We have reviewed Boeing Special Attention Service Bulletins 757-30-0021 and 757-30-0022, both Revision 1, both dated June 13, 2007. The service bulletins describe procedures for repetitive detailed inspections for cracks of the anchor tab of the bulkhead seal assemblies of the wing TAI system at certain outboard stations of the left and right wings, and corrective action before further flight if necessary. The compliance time specified in the service bulletin for the initial inspection is before the accumulation of 20,000 total flight hours or within 36 months from the effective date on the service bulletin, whichever occurs later.

The corrective action includes replacing the bulkhead seal assembly or installing new duct anchor support brackets if cracks are found. If the bulkhead seal assembly is replaced, but new support brackets are not installed, the inspections must be repeated until the existing brackets are replaced. Replacing the support brackets eliminates the need for the repetitive inspections. The compliance time for the repetitive inspections is at intervals not to exceed 6,000 flight hours; for airplanes on which the bulkhead seal assemblies are replaced, the inspection is repeated within 20,000 flight hours after the replacement, and thereafter at intervals not to exceed 6,000 flight hours.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

There are about 929 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 530 airplanes of U.S. registry. The proposed inspection would take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $84,800, or $160 per airplane, per inspection cycle.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0270; Directorate Identifier 2007-NM-211-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We have received reports indicating that bonded skin panels may not have been correctly anodized in phosphoric acid before the tear strap doubler was bonded to the skin between stations 439 to 900, and 1180 to 1621, and between stringers 10 left and 10 right, on Boeing Model 757-200, -200PF, and -200CB series airplanes. The cause of the disbonded tear straps has been attributed to a manufacturing process error. A weak bond between the skin and tear strap, if not corrected, could reduce the ability of the skin to resist cracks and could adversely affect the structural integrity of the airplane.

We have reviewed Boeing Special Attention Service Bulletin 757-53-0077, Revision 1, dated August 6, 2007. The service bulletin describes procedures for doing an ultrasound inspection for disbonded tear straps not mechanically fastened to the skin between stations 439 to 900, and 1180 to 1621, and between stringers 10 left and 10 right, and doing applicable related investigative and corrective actions. The related investigative actions include doing a high frequency eddy current inspection to detect cracks around the fasteners, and doing a low frequency eddy current inspection to detect corrosion on the surface, as applicable. The corrective actions include installing rivets to repair disbonding, and contacting Boeing for crack and/or corrosion repair, as applicable.

The service bulletin also specifies the following compliance times for:

• Related investigative actions: Before further flight.

• Corrective actions: Before further flight or within 3,000 flight cycles after the disbonding is found, depending on the location of the disbond.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

There are about 744 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 487 airplanes of U.S. registry. The proposed actions would take about 16 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $623,360, or $1,280 per airplane.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0349; Directorate Identifier 2007-CE-094-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On February 6, 2007, we issued AD 2007-04-08, Amendment 39-14939 (72 FR 7559 February 16, 2007). That AD required actions intended to address an unsafe condition on the products listed above.

Since we issued AD 2007-04-08, EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007, was issued, which adds a procedure in the replacement of the stop fittings.

The Direction générale de l'aviation civile (DGAC), which is the aviation authority for France, has issued AD No. F-2007-016, October 10, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

EADS SOCATA has issued TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 157 products of U.S. registry. We also estimate that it would take about 4.5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $15 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $58,875, or $375 per product.

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

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

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

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

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

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

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

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0338; Directorate Identifier 2007-NM-139-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On November 2, 2005, we issued AD 2005-25-04, amendment 39-14397 (70 FR 72902, December 8, 2005), for all EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes. That AD requires reviewing the airplane maintenance records for recent reports of vibration from the tail section or rudder pedals. That AD also requires repetitively inspecting the skin, attachment fittings, and control rods of rudder II to detect cracking, loose parts, wear, or damage; and related investigative/corrective actions if necessary. That AD resulted from reports of rudder vibration due to wear. We issued that AD to prevent failure of multiple hinge fittings, which could result in severe vibration, and to prevent failure of the rudder control rods, which could result in jamming of the rudder II; and possible structural failure and reduced controllability of the airplane.

Since we issued AD 2005-25-04, the Agĕncia Nacional de Aviação Civil (ANAC), which is the airworthiness authority for Brazil, issued Brazilian airworthiness directive 2005-09-02R2, effective May 10, 2007, to include updated procedures for the existing repetitive inspections and a terminating action for the repetitive inspections.

EMBRAER has issued Alert Service Bulletin 145LEG-55-A010, Revision 02, dated May 16, 2006 (for Model EMB-135BJ airplanes); and 145-55-A036, Revision 03, dated May 16, 2006 (for Model EMB-135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes). (AD 2005-25-04 refers to EMBRAER Alert Service Bulletin 145LEG-55-A010, dated August 26, 2005; and 145-55-A036, Revision 01, dated September 5, 2005; as the appropriate sources of service information for accomplishing the required repetitive inspections). Revision 02 of EMBRAER Alert Service Bulletin 145LEG-55-A010 and Revision 03 of EMBRAER Alert Service Bulletin 145-55-A036 were issued to include more details for accomplishing the repetitive inspections.

EMBRAER also has issued Alert Service Bulletin 145LEG-55-0011, Revision 01, dated January 23, 2007 (for Model EMB-135BJ airplanes); and 145-55-0038, Revision 01, dated January 23, 2007 (for Model EMB-135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes). The service bulletins describe procedures for replacing the locking tab washers on the control rods of the rudder II with new improved ones, and installing springs on the hinge assemblies of the rudder II. Accomplishment of these actions eliminates the need for the repetitive inspections specified in the service bulletins described previously.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The ANAC mandated the service information and issued Brazilian airworthiness directive 2005-09-02R2, effective May 10, 2007, to ensure the continued airworthiness of these airplanes in Brazil.

EMBRAER Alert Service Bulletin 145LEG-55-A010, Revision 02, dated May 16, 2006, refers to EMBRAER Service Bulletins 145LEG-55-0008, Revision 02, dated May 26, 2006; and 145LEG-55-0009, Revision 01, dated November 23, 2005; as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly.

EMBRAER Alert Service Bulletin 145-55-A036, Revision 03, dated May 16, 2006, refers to EMBRAER Service Bulletins 145-55-0034, Revision 02, dated May 25, 2006; and 145-55-0035, Revision 02, dated March 28, 2006; as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly.

These airplanes are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the ANAC has kept the FAA informed of the situation described above. We have examined the ANAC's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2005-25-04 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in the service bulletins described previously.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0337; Directorate Identifier 2007-NM-111-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0064R1, dated September 21, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Corrosion findings greater than level 1 in the wing could result in reduced structural integrity of the airplane. The corrective actions include an inspection for corrosion in the wing tank dry bay, and repair if necessary. You may obtain further information by examining the MCAI in the AD docket.

Airbus has issued Service Bulletin A320-57-1121, dated October 9, 2002. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 103 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $32,960, or $320 per product.

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0334; Directorate Identifier 2007-NM-206-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0226, dated August 24, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

ATR has issued Service Bulletins ATR42-28-0039, Revision 04, dated June 12, 2007; and ATR72-28-1019, Revision 05, dated June 12, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 55 products of U.S. registry. We also estimate that it would take about 150 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $23,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,925,000, or $35,000 per product.

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

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

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

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

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

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

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

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

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

On March 31, 2005, the Alcohol and Tobacco Tax and Trade Bureau (TTB) published a notice of proposed rulemaking in the Federal Register regarding the establishment of the Calistoga viticultural area (see Notice No. 36, 70 FR 16451). In light of comments regarding the potential adverse impact on established brand names that we received in response to that first notice, we published a second notice of proposed rulemaking on November 20, 2007, as Notice No. 77 (72 FR 65256) requesting comments on our proposal to provide “grandfather” protection for certain brand names used on existing certificates of label approval, provided those labels also carry information that would dispel an impression that the wine meets the requirements for using the viticultural area name. As originally published, comments on Notice No. 77 are due on or before December 20, 2007, 30 days after its publication.

Also on November 20, 2007, TTB published Notice No. 78 (72 FR 65261), a notice of proposed rulemaking regarding our regulations on the establishment of American viticultural areas. The proposed amendments clarify rules for preparing, submitting, and processing viticultural area petitions. The proposals contained in Notice No. 78 also include an amendment to 27 CFR 4.39(i) that would establish a “grandfather” provision to protect wine labels using a viticultural area name, provided that the label in question was approved and in actual commercial use for a specified period of time preceding TTB's receipt of a perfected petition for establishment of the viticultural area. As originally published, comments on Notice No. 78 are due on or before January 22, 2008, 60 days after its publication.

After the publication of Notice No. 77, TTB received two requests from wine industry groups to extend that notice's comment period. Both the Napa Valley Vintners, a trade group representing over 300 Napa Valley (California) vintners, and the Wine Institute, a trade representing 1,100 California wineries and wine-related businesses, requested that the comment period for Notice No. 77 be extended an additional 90 days.

In support of its extension request, Napa Valley Vintners indicates that the proposed grandfather provision contained in Notice No. 77 “is of great concern to our association” and is “inextricably linked” to TTB's more general grandfathering proposal contained in Notice No. 78. The association believes that its decisions regarding the two notices “should be made at the same time.” Its requested 90-day extension, the group states, will allow its Winegrower Appellation Committee to consider the grandfather provision and the specific questions posed by TTB in Notice No. 77. The Napa Valley Vintners' request notes that its appellation committee's recommendations must then be presented to the group's board of directors, which only meets once a month.

The Wine Institute, in its comment period extension request, also noted that Notice Nos. 77 and 78 deal with similar issues “that call for consistent rather than staggered comment periods.” In addition, the Wine Institute stated that, with the holiday season, its membership “is engaged in one of its busiest months of the year.”

In response to these requests, TTB extends the original 30-day comment period for Notice No. 77 for an additional 90 days, so that the comment period will equal 120 days. Therefore, comments on Notice No. 77 are now due on or before March 20, 2008.

Michael Hoover of the Regulations and Rulings Division drafted this notice.

On November 20, 2007, the Alcohol and Tobacco Tax and Trade Bureau (TTB) published a notice of proposed rulemaking in the Federal Register as Notice No. 78 (72 FR 65261) requesting comments on proposed amendments to our regulations regarding the use of geographic brand names found in 27 CFR part 4 and the establishment of American viticultural areas (AVAs) contained in 27 CFR part 9. The proposed amendments address the effect that the approval of an AVA may have on established brand names and clarify the rules for preparing, submitting, and processing viticultural area petitions. TTB also proposes to add to the regulations statements regarding the viticultural significance of established viticultural area names, or key portions of those names, for wine labeling purposes. As originally published, comments on Notice No. 78 are due on or before January 22, 2008, 60 days after its publication.

Also on November 20, 2007, TTB published Notice No. 77 in the Federal Register (72 FR 65256), a notice of proposed rulemaking regarding the establishment of the Calistoga viticultural area in Napa County, California. Specifically, Notice No. 77 sought comments on a proposal to provide “grandfather” protection for certain brand names used on existing certificates of label approval. As originally published, comments on Notice No. 77 are due on or before December 20, 2007, 30 days after its publication.

After the publication of Notice No. 78, TTB received three requests from wine industry groups to extend that notice's comment period. Requests for 60-day extensions were received from the Napa Valley Vintners, a trade group representing over 300 Napa Valley (California) vintners, and the Wine Institute, a trade representing 1,100 California wineries and wine-related businesses. The Oregon Winegrowers Association, a trade association with 239 grape grower and winery members, requested a 120-day extension.

In support of its extension request, Napa Valley Vintners indicates that the proposed amendments to the AVA program cannot be considered by its membership within the announced comment period. The group states that it only meets once a month, and “because of the complexity of the subjects covered in the Notice, the current holiday season and market visits already scheduled by our winery members during January, we will be unable to complete our deliberations and finalize our comments until after our general membership meeting in March.”

The Wine Institute, in its comment period extension request, stated that Notice No. 78 “is complex and far-reaching, and will affect many of our members.” The Wine Institute also noted that the comment period deadline for Notice No. 78 runs up against the January 27, 2008, comment deadline for Notice No. 73, a notice of proposed rulemaking regarding “Serving Facts” labeling for alcohol beverages, “which is already demanding a large part of our resources and membership participation,” all of which is occurring during the holiday season when its membership “is engaged in one of its busiest months of the year.” In addition, the group adds that Notice Nos. 77 and 78 deal with similar issues “that call for consistent rather than staggered comment periods.”

The Oregon Winegrowers Association, noting the “complex and lengthy” proposals outlined in Notice No. 78, states that it will require additional time to thoroughly understand the full impact of the proposals, acquaint its board members with their meaning, garner consensus within the industry, and respond in detail to the notice's proposals.

In response to these requests, TTB extends the original 60-day comment period for Notice No. 78 for an additional 60 days so that the comment period will equal 120 days. Therefore, comments on Notice No. 77 are now due on or before March 20, 2008.

Michael Hoover of the Regulations and Rulings Division drafted this notice.

I. Background on the Texas Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Texas Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Texas program in the February 27, 1980, Federal Register (45 FR 12998). You can also find later actions concerning the Texas program and program amendments at 30 CFR 943.10, 943.15 and 943.16.

By letter dated October 2, 2007 (Administrative Record No. TX-664), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ) at its own initiative. Below is a summary of the changes proposed by Texas. The full text of the program amendment is available for you to read on the internet at www.regulations.gov and at the other locations listed above under ADDRESSES .

Texas proposes to revise its regulation at 16 Texas Administrative Code (TAC) section 12.108(b) regarding annual permit fees by:

(1) Decreasing the amount of the fee for each acre of land within the permit area on which coal or lignite was actually removed during the calendar year,

(2) Increasing the amount of the fee for each acre of land within a permit area covered by a reclamation bond on December 31st of the year, and

(3) Increasing the amount of the fee for each permit in effect on December 31st of the year.

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

Send your comments to us by one of the two methods specified above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than the two listed above (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

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

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.t. on January 2, 2008. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

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

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

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

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

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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 the Federal Government and Indian tribes. This determination is based on the fact that the Texas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Texas program has no effect on Federally-recognized Indian tribes.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Virginia program on December 15, 1981. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Virginia program in the December 15, 1981, Federal Register (46 FR 61088). You can also find later actions concerning Virginia's program and program amendments at 30 CFR 946.12, 946.13, and 946.15.

By letter dated February 13, 2007 (Administrative Record Number VA-1059), the Virginia Department of Mines, Minerals and Energy (DMME) submitted an amendment to the Virginia program. In its submission, DMME proposed to revise the Virginia program regarding, among other things, revegetation success standards. We announced receipt of the proposed amendment in the April 9, 2007, Federal Register (72 FR 17452). The public comment period closed on May 9, 2007.

The portion of the February 13, 2007, amendment dealing with revegetation success standards involved proposed changes to Virginia's regulations at 4 VAC 25-130-816 and 817.116(a)(2) and (b)(3)(v)(C). DMME proposed to revise subsection (a)(2) to consider the levels of ground cover, production, or stocking as being equal to the approved success standard when they were not less than 70% of that success standard. DMME also proposed to revise subsection (a)(2) by adding an exception to the success standard requirements as provided for in subsection (b). Subsection (b) provides success standards for certain approved postmining land uses. Finally, DMME proposed to amend subsection (a)(2) by deleting a provision requiring that the sampling techniques for measuring success use a 90% statistical confidence interval (i.e., one-sided test with a 0.10 alpha error). In subsection (b)(3)(v)(C), DMME proposed to amend standards for herbaceous vegetation success on postmining land uses where woody plants are used for wildlife management, recreation, shelter belts or forest uses other than commercial forest land by requiring that areas planted with a mixture of herbaceous and woody species sustain a herbaceous ground cover of 70%.

After the February 13, 2007, proposed rule was published in the Federal Register , DMME revised the portion of its proposed amendment dealing with revegetation success standards. By electronic mail dated April 18, 2007, (Administrative Record Number VA-1074), DMME stated that it wished to withdraw the changes it previously made to 4 VAC 25-130-816 and 817.116(a)(2) regarding the sampling techniques and retain the original language. Additionally, DMME indicated that it wished to revise the herbaceous ground cover success standard of 4 VAC 25-130-816 and 817.117(b)(3)(v)(C) to require that postmining land uses of wildlife management, recreation, shelter belts, or forest uses other than commercial forest land that are planted with a mixture of herbaceous and woody species must sustain a herbaceous ground cover of 80%. We announced these proposed revisions in a July 5, 2007, Federal Register notice (72 FR 36632) in which we reopened the public comment period. The reopened public comment period closed July 20, 2007.

After our review of the second resubmission of the amendments and based on our discussions regarding the amendment with DMME, DMME chose to resubmit 4 VAC 25-130-816 and 817.116(b)(3) and 816 and 817.116(b)(3)(v)(C) with added language that would facilitate the growth of woody plants in areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forestry. By electronic mail dated August 30, 2007 (Administrative Record Number VA-1082), DMME stated that it would revise parts of 4 VAC 25-130-816 and 817.116 based, in part, on discussions with us regarding the benefits of using the Forestry Reclamation Approach (FRA). The FRA is a method for reclaiming coal-mined land to forests and is based on knowledge gained from both scientific research and experience. It is designed to restore forest land capability and accelerate the natural process of forest development. The FRA advocates selection of a suitable rooting medium for tree growth, loosely grading the growth medium to reduce compaction, using ground covers compatible with growing trees, planting early succession and commercially valuable tree species, and using proper tree planting techniques.

DMME's first proposed revision occurs at 4 VAC 25-130-816 and 817.116(b)(3). DMME is proposing to modify this section to indicate that for areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products, woody plants must be stocked at least equal to the rates specified in the approved reclamation plan. Additionally, DMME is proposing to add a requirement that in order to minimize competition with woody plants, herbaceous ground cover should be limited to that necessary to control erosion and support the postmining land use. Seed mixtures and seeding rates will be specified in the approved reclamation plan. The proposed revisions correspond to the Federal regulations at 30 CFR 816 and 817.116(b)(3) that provide the standards for success of revegetation and are essentially identical to the ground cover standards for areas where trees will be planted that were adopted by OSM in the Tennessee Federal Program on March 2, 2007 (72 FR 9616) and codified at 30 CFR 942.816 and 942.817.

With this new amendment, 4 VAC 25-130-816 and 817.116(b)(3) is proposed to read as follows:

With this new amendment, 4 VAC 25-130-816 and 817.116(b)(3)(v)(C) is proposed to read as follows:

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

Send your written or electronic comments to OSM at one of the addresses given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed above will be included in the docket for this rulemaking and considered.

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

In the final rules section of the Federal Register , EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule that is located in the rules section of this Federal Register .

Background

In this proposed rule, we propose to list three foreign seabird species as endangered, pursuant to the Act (16 U.S.C. 1531, et seq. ). These species are: the Chatham petrel ( Pterodroma axillaris ), Fiji petrel ( Pterodroma macgillivrayi ), and magenta petrel ( Pterodroma magentae ). We also propose to list the Cook's petrel ( Pterodroma cookii ), Galapagos petrel ( Pterodroma phaeopygia ), and Heinroth's shearwater ( Puffinus heinrothi ) as threatened species under the Act. All species are considered pelagic, occurring on the open sea generally out of sight of land, where they feed year round. They return to nesting sites on islands during the breeding season where they nest in colonies (Pettingill 1970, p. 206).

The Chatham petrel is also known by its Maori name, ranguru. Fossil evidence indicates that this species was once widespread throughout the Chatham Islands of New Zealand [New Zealand Department of Conservation (NZDOC) 2001b]. However, the species is currently only known to breed on South East Island (Rangatira) (BirdLife International 2007a) and, as a result of recent release efforts, on Pitt Island (BirdLife International News 2006) within the Chatham Islands. The population of this species is very small, estimated at 800-1,000 birds based on recent research and banding studies (Taylor 2000), and is showing a decreasing population trend (BirdLife International 2007a). It is estimated that fewer than 200 pairs breed per year (NZDOC 2001b). The IUCN considers the Chatham petrel to be “Critically Endangered” (BirdLife International 2006a).

Banding studies have shown that young birds of this species remain at sea for at least two years before returning to land to breed and nest. Based on limited feeding habits data, the species preys on squid and small fish (Heather and Robertson 1997, as cited in BirdLife International 2000).

Synonyms for the Fiji petrel include Pseudobulweria macgillivrayi and Thalassidroma macgillivrayi . Very little information is available on the Fiji petrel and its life history. There have only been 12 substantiated sightings of this species on land since 1965, and a total of 13 historically. These sightings have all been on Gau Island (BirdLife International 2000), a 52.55-square mile (136.1 km 2 ) island in Fiji's Lomaiviti archipelago (Wikipedia 2007f). The population of this species is very small, estimated at less than 50 birds and is showing a decreasing population trend (BirdLife International 2007c). The IUCN classifies the Fiji petrel as “Critically Endangered” (BirdLife International 2006c).

The magenta petrel, or Taiko as it is known locally, is native to Chatham Island, New Zealand (BirdLife International 2000), the largest island in the Chatham Islands chain, covering 348 square miles (900 km 2 , Wikipedia 2007b). Based on fossil evidence and historical records, it is believed that the magenta petrel was once the most abundant burrowing seabird on Chatham Island (Bourne 1964, Sutton and Marshall 1977, as cited in NZDOC 2001a). It has been reported that prior to 1900, indigenous Moriori and Maori harvested thousands of petrel chicks for food (Crockett 1994). The limited feeding habits data show that the magenta petrel preys on squid (Heather and Robertson 1997, as cited in BirdLife International 2000).

The type specimen for the magenta petrel was first collected at sea in 1867, and after 10 years of intensive searching the species was re-discovered in 1978 in the southeast corner of Chatham Island (Crockett 1994). Since then, additional searches have resulted in the location and banding of 92 birds (BirdLife International 2007d). The IUCN considers this species as “Critically Endangered” (BirdLife International 2006d). The magenta petrel population is estimated at 120 individuals with a decreasing trend (BirdLife International 2007d).

Cook's petrel is endemic to the New Zealand archipelago (del Hoyo, et al. 1992), which comprises two main islands, the North and South Islands, and numerous smaller islands. The total land area of the archipelago covers 103,700 square miles (268,680 km 2 , Wikipedia 2007i). Historically, Cook's petrels were harvested in large numbers as a food source by native Moriori (Oliver 1955).

Although the Cook's petrel was once considered a dominant species on these islands, the species' breeding and nesting activities are now restricted to islands at the northern and southern limits of its former breeding range, including Great Barrier (Aotea), Little Barrier (Hauturu), and Codfish (Whenua Hou) Islands (del Hoyo, et al. 1992). The species' diet consists primarily of cephalopods, fish, crustaceans, and bioluminescent tunicates that can be hunted at night (Imber 1996).

The IUCN classifies this species as “Endangered” (BirdLife International 2006b). Although the population on Little Barrier Island was thought to be about 50,000 pairs (BirdLife International 2007b), using GIS (Geographic Information System) technology, Rayner, et al. (2007b) determined that the population is around 286,000 pairs. In 2006, the Great Barrier Island population was considered to be in danger of extirpation because only four nest burrows had been located in recent years, and it was estimated that fewer than 20 pairs continued to breed on the island. However, the populations on Little Barrier and Codfish islands are likely to be increasing (BirdLife International 2007b).

The Galapagos petrel is endemic to the Galapagos Islands, Ecuador (BirdLife International 2000), and is currently known to occur on the archipelago's islands of Santa Cruz, Floreana, Santiago, San Cristóbal, and Isabela, which cover a total land area of 2,680 square miles (6,942 km 2 , Cruz and Cruz 1987; Vargas and Cruz 2000, as cited in BirdLife International 2000). This species feeds mostly on squid, fish, and crustaceans (Castro and Phillips 1996, as cited in BirdLife International 2000), and has been observed foraging near the Galapagos Islands, as well as east and north of the islands (Spear, et al. 1995).

The IUCN classifies the Galapagos petrel as “Critically Endangered” (BirdLife International 2006e). The total population is estimated to be 20,000-60,000 birds with a decreasing population trend (BirdLife International 2007e).

Very little information is available on the Heinroth's shearwater and its life history. The species' nesting grounds have not been located, but observations of the species indicate that the species breeds on Bougainville Island in Papua New Guinea, and Kolombangara and Rendova Islands in the Solomon Islands (Buckingham, et al. 1995, Coates 1985, 1990, as cited in BirdLife International 2000).

The IUCN categorizes this species as “Vulnerable” (BirdLife International 2006f). The population is estimated at 250-999 birds, with an unknown population trend; however, there is no substantial evidence of a decline (BirdLife International 2007f).

Section 4(b)(3)(A) of the Act requires the Service to make a finding known as a “90-day finding” on whether a petition to add, remove, or reclassify a species from the list of endangered or threatened species has presented substantial information indicating that the requested action may be warranted. To the maximum extent practicable, the finding shall be made within 90 days following receipt of the petition and published promptly in the Federal Register . If the Service finds that the petition has presented substantial information indicating that the requested action may be warranted (referred to as a positive finding), Section 4(b)(3)(A) of the Act requires the Service to commence a status review of the species if one has not already been initiated under the Service's internal candidate assessment process. In addition, Section 4(b)(3)(B) of the Act requires the Service to make a finding within 12 months following receipt of the petition on whether the requested action is warranted, not warranted, or warranted but precluded by higher-priority listing actions (this finding is referred to as the “12-month finding”). If the listing of a species is found to be warranted but precluded by higher-priority listing actions, then the petition to list that species is treated as if it is a petition that is resubmitted on the date of the finding and is, therefore, subject to a new 12-month finding within one year. The Service publishes an Annual Notice of Resubmitted Petition Findings (annual notice) for all foreign species for which listings were previously found to be warranted but precluded.

On November 24, 1980, we received a petition (1980 petition) from Dr. Warren B. King, Chairman, United States Section of the International Council for Bird Preservation (ICBP), to add 79 native and foreign bird species to the list of Threatened and Endangered Wildlife (50 CFR 17.11). The species covered by the 1980 petition comprised 19 native species and 60 foreign species, including the six seabird species of the family Procellariidae that are the subject of this proposed rule. In response to the 1980 petition, we published a notice to announce a positive 90-day finding on May 12, 1981 (46 FR 26464) for 77 species, as two of the foreign species identified were already listed under the Act. On January 20, 1984, we published a 12-month finding within an annual review on pending petitions and description of progress on all ESA listing amendments (49 FR 2485). In this notice, we found that listing all 58 foreign bird species on the 1980 petition was warranted but precluded by higher-priority listing actions, however, the species were not listed by name. On May 10, 1985, we published the first annual notice (50 FR 19761) in which we continued to find that listing all 58 foreign bird species on the 1980 petition was warranted but precluded by higher-priority listing actions. In our next annual notice (51 FR 996), published on January 9, 1986, we found that listing 54 species from the 1980 petition, including the six species that are the subject of this proposed rule, continued to be warranted but precluded by higher-priority listing actions, whereas new information caused us to find that listing the four remaining species was no longer warranted. We published additional annual notices of findings on July 7, 1988 (53 FR 25511), December 29, 1988 (53 FR 52746), April 25, 1990 (55 FR 17475), November 21, 1991 (56 FR 58664), and May 21, 2004 (69 FR 29354). In addition, on September 28, 1990, we published a final rule (55 FR 39858) to list six species from the 1980 petition to the List of Threatened and Endangered Wildlife.

Per the Service's listing priority guidelines that were published on September 21, 1983 (48 FR 43098), in our April 23, 2007, Annual Notice on Resubmitted Petition Findings for Foreign Species (72 FR 20184), we determined that listing the six seabird species of family Procellariidae was warranted. The six species were selected from the list of warranted but precluded species for two reasons. First, this family grouping includes more high priority species than any other taxonomic family group in our list of warranted but precluded species; and, second, because of the significance and similarity of the threats to the species. Combining taxonomically related species that face similar threats into one proposed rule allows us to maximize our limited staff resources and thus increases our ability to complete the listing process for warranted-but-precluded species.

Section 4(a)(1) of the Act (16 U.S.C. 1533 (a)(1)) and regulations promulgated to implement the listing provisions of the Act (50 CFR part 424) set forth the procedures for adding species to the Federal lists of endangered and threatened wildlife and plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and their application to the Chatham petrel, Cook's petrel, Fiji petrel, Galapagos petrel, magenta petrel, and Heinroth's shearwater follow.

The range of this species changes intra-annually based on an established breeding cycle. During the breeding season (November to June) (NZDOC 2001b), breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' non-breeding habitat and range.

BirdLife International (2007a) estimates the range of the Chatham petrel to be 436,000 km 2 (168,300 mi 2 ); however, BirdLife International (2000) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the Chatham petrel's breeding range focuses on the islands where the species is known to breed.

The Chatham petrel breeds primarily on one island (BirdLife International 2000; NZDOC 2001b), the 0.84 square mile (2.18 km 2 , Wikipedia 2007k) South East Island in the Chatham Islands (BirdLife International 2000; NZDOC 2001b). In 2002, the NZDOC began efforts to expand the species' breeding range by releasing chicks onto Pitt Island, an island approximately 2.5 km (1.55 mi) northwest of South East Island. Over a four-year time period, 200 chicks were transferred to the 40 ha (98.8 acre) Ellen Elizabeth Preece Conservation Covenant (Caravan Bush), a fenced, predator-free enclosure on Pitt Island. As of 2006, four adult birds had returned to the island from the sea to breed, and in June, 2006, a pair successfully reared a chick. This represents the first time in more than a century that a Chatham petrel chick has fledged on Pitt Island (BirdLife International News 2006).

The Chatham petrel breeds on coastal lowlands and slopes in habitats with low forest, bracken, or rank grass (del Hoyo, et al. 1992). It nests in burrows on flat to moderately sloping ground among low vegetation and roots (Marchant and Higgins 1990, as cited in BirdLife International 2000). Since the arrival of European explorers, this breeding habitat has contracted extensively, largely as a result of its conversion to agricultural purposes (NZDOC 2001b; Tennyson and Millener 1994).

We are not aware of any present or threatened destruction or modification of the Chatham petrel's habitat on South East Island. This island is currently un-inhabited by humans (Wikipedia 2007k), and since 1954, it has been managed as a reserve for the Chatham petrel. Access to this island is restricted by permit. In addition, since 1961, all livestock has been removed from the island, allowing the natural vegetation to regenerate (Nilsson, et al. 1994). The Chatham petrel's fenced, 40 ha (98.8 acre) release area on Pitt Island is protected by a conservation covenant, and we are unaware of any present or threatened destruction or modification of any of the species' habitat on Pitt Island. Therefore, we find that the present or threatened destruction or modification of the species' breeding habitat is not a threat to the species.

The Chatham petrel's range at sea is poorly known; the species has been recorded on several occasions at sea near South East Island, and has been recorded once 12 km (7.5 mi) south of the island (West 1994). It is believed that the species migrates to the North Pacific Ocean in the non-breeding season, based on the habits of closely related species; however, no sightings have been recorded in the Northern Hemisphere (Taylor 2000). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are unaware of any commercial, recreational, scientific, or educational purpose for which the Chatham petrel is currently being utilized.

The Chatham petrel's breeding range was reduced extensively following the arrival of European explorers, largely due to predation by introduced species such as rats ( Rattus spp.), feral cats ( Felis catus ), and weka ( Gallirallus australis ), an introduced bird (Heather and Robertson 1997, as cited in BirdLife International 2000; NZDOC 2001b; Taylor 2000). Although no introduced predators are currently present on South East Island, there is an ongoing risk that predators will be introduced to the island by boats transporting conservation and research staff to the island. Given this risk, combined with the devastating impact introduced predators had on Chatham petrel populations historically, we find that predation by introduced species is a threat to the Chatham petrel on South East Island, the species' primary breeding location.

On Pitt Island, Chatham petrel chicks were released within a 40 ha (98.8 acre) fenced, predator-free breeding habitat. Although this area is fenced, and the threat of predation on nesting Chatham petrels is reduced, introduced predators, such as feral cats and weka, are present on this island (BirdLife International News 2002) and could potentially get inside the fenced area or prey on Chatham petrels that leave the fenced area. Therefore, we find that predation by introduced species is a threat to the Chatham petrel on Pitt Island.

We are unaware of any threats due to predation on Chatham petrels during the non-breeding season while the species is at sea.

The information available suggests that petrels in general are susceptible to a variety of diseases and parasites, particularly during the breeding season, when large numbers of seabirds congregate in relatively small areas to breed and nest (BirdLife International 2007a; Carlile, et al. 2003). However, there are no documented records of diseases impacting the persistence of the Chatham petrel. Therefore, we find that the threat of diseases is not a significant threat to this species.

The Chatham petrel is protected from disturbance and harvest under New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The petrel is designated as a Category A species by the NZDOC, which signifies the species is of the highest priority for conservation management (Molloy and Davis 1999). As such, the NZDOC developed a ten-year recovery plan for the Chatham petrel in 2001, with the goals of protecting the species' breeding burrows on South East Island from the broad-billed prion (Pachyptila vittata) (see Factor E below) and establishing a reintroduced population elsewhere within the species' historic breeding range (NZDOC 2001b). A measure of the success of this recovery plan is the successful establishment of breeding individuals on Pitt Island (see Factor A above) in 2006, thereby increasing the breeding range of the species. These efforts are beginning to show some success (see Factor E below), but it is too early to know the level of success, because it can take fledged seabirds years to return to their breeding colony to breed and nest (Taylor 2000). Similarly, protection of Chatham petrel burrows has reduced the population impacts resulting from competition with the broad-billed prion (see Factor E below), however, this threat remains the greatest threat to the species.

New Zealand ratified the Agreement on the Conservation of Albatrosses and Petrels (ACAP) in November 2001, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the Chatham petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not reduced the threat of incidental take of this species in long-line fisheries (see Factor E below).

Therefore we find that existing regulatory protections have not significantly reduced or removed the threats to the Chatham petrel.

Based on the information available, the predominant threat to the Chatham petrel is nest burrow competition between this species and the more abundant broad-billed prion, which numbers around 300,000 individuals. The prion not only occupies potential Chatham petrel burrows, but has been observed actively evicting or lethally attacking eggs, nestlings, and occasionally adults of the Chatham petrel. Such competition has resulted in a high rate of pair bond disruption and a low rate of breeding success in Chatham petrels, despite the high percentage of egg-fertility (BirdLife International 2000; NZDOC 2001b).

To reduce the threat posed by competition with the broad-billed prion on South East Island, the NZDOC has implemented nest site protection efforts for the Chatham petrel, including placement of artificial nest sites and the blockage of burrows to prevent occupation by the broad-billed prion (NZDOC 2001b). During the 2005-2006 breeding season, out of 155 known breeding pairs, 83 percent of the pairs successfully fledged one chick per pair (Wikipedia 2007d). Although these actions are improving the petrel's breeding success (NZDOC 2001b; Taylor 1999, as cited in BirdLife International 2000), only a small proportion of breeding burrows occupied by Chatham petrels have been located and, therefore, protected (Taylor 1999, as cited in BirdLife International 2000). Therefore, we consider nest burrow competition between this species and the broad-billed prion to be a significant threat to the Chatham petrel.

The Chatham petrel's restricted breeding range puts the species at a greater risk of extinction. Breeding colonies were once widespread throughout the Chatham Islands (NZDOC 2001b), a group of about 10 islands within a 24.85 mile [40-kilometer (km)] radius covering a total land area of 373 square miles (966 km 2 , Wikipedia 2007c). Currently, however, breeding of this species is restricted to South East Island (BirdLife International 2007a) and, as a result of recent release efforts, Pitt Island (BirdLife International News 2006), a total land area of less than 1 mi 2 (Wikipedia 2007j,k). This habitat area is insufficient for the long-term survival of the Chatham petrel, particularly since breeding pairs, eggs, and nestlings on South East Island, the primary breeding area of this species, face the pervasive threat of nest-site competition with the broad-billed prion. It is estimated that the self-sustainability of the breeding population on Pitt Island as a result of the release program will take longer than four more years to achieve (NZDOC 2001b).

The Chatham petrel's restricted breeding range combined with its colonial nesting habits and small population size of 800-1,000 birds (Taylor 2000) makes the species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., cyclones, fire) that destroy breeding individuals and their breeding habitat. Fire is a high risk in the Chatham Islands because the climate is very dry during the summer, and the vegetation becomes tinder dry. If fires do occur, the remoteness of the islands renders the fires unlikely to be exterminated by human intervention. Burrow-nesting species such as the Chatham petrel are at a high risk because they are likely to suffocate from smoke inhalation or to be lethally burned inside or while attempting to escape from their burrows (Taylor 2000).

Another natural disaster, severe storms, has impacted New Zealand historically, and so the likelihood of future impacts of storms is high. A severe storm in 1985 stripped two islands in the Chatham Islands chain bare of vegetation and soil cover, causing high increases in egg mortality of nesting albatrosses (Taylor 2000). Considered the worst recorded cyclone in New Zealand's history, Cyclone Giselle hit New Zealand April 10, 1968, with wind speeds of 275 km/h (Wikipedia 2007). Although we are unaware of the impact of this cyclone on the Chatham petrel's population numbers or breeding habitat, the severity of the wind or waves created by such a storm has potential to significantly damage Chatham petrel burrows. These burrows are particularly vulnerable because they are located on coastal lowlands (del Hoyo, et al. 1992), and they are extremely fragile, occurring in soft soils (Taylor 2000).

While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as fire or storms, the Chatham petrel does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species.

We are unaware of any documented cases of incidental take of Chatham petrels by commercial long-line fishing operations or entanglement in marine debris; however, it is generally recognized that all seabirds are at high risk of injury or mortality when they attempt to take bait from long-line fishing gear. The lack of data on these impacts could be a result of the species' low population number. Dr. Michael Rands, Director and Chief Executive of BirdLife International, has reported that the number of seabirds killed in long-line fishery operations continues to increase, and the long-line fishery, especially operations by unlicensed “pirate” vessels, is the single greatest threat to all seabirds [Australian Antarctic Division (AAD) 2007; BirdLife International News 2003]. Therefore, we consider the incidental take of Chatham petrels by commercial long-line fishing operations to be a significant threat to the species.

Predation by introduced species is an ongoing threat to the Chatham petrel, which historically reduced the species' population numbers. Nest burrow competition between the Chatham petrel and the more abundant broad-billed prion is a current, on-going threat to the Chatham petrel that is of high magnitude that has not been controlled by human intervention. The broad-billed prion occupies Chatham petrel burrows, actively evicting or lethally attacking eggs, nestlings, and occasionally adults of the Chatham petrel, and as a result is reducing the Chatham petrel's population which is already very small, estimated at 800-1000 individuals. Although the NZDOC has been actively working to protect Chatham petrel nest sites from the broad-billed prion, only a small proportion of Chatham petrel breeding burrows have been located and protected (Taylor 1999, as cited in BirdLife International 2000). This threat is magnified by the fact that the impacted area is the Chatham petrel's primary breeding location, and the breeding area is extremely small, less than 1 mi 2 in size. The only other location where the species has been documented to breed is the 40 ha (98.8 acre) enclosed area on Pitt Island where Chatham Petrels were reintroduced. It is currently uncertain whether the species will maintain this portion of its range as a breeding area; as of 2006, only one pair breeding in this area had successfully reared a chick.

Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987). The Chatham petrel's small population, combined with its restricted breeding range and colonial nesting habits makes the species particularly vulnerable to the threat of random, naturally occurring events. These catastrophic events, such as cyclones and fire, are known to occur in New Zealand and have the potential to destroy breeding individuals and their breeding habitat.

The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. Although New Zealand implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the Chatham petrel is not currently offered protection by this Agreement. We are unaware of any documentation on the level of Chatham petrel mortality caused by long-line fisheries; however, the number of seabirds killed in long-line fishery operations continues to increase, and the long-line fishery, especially operations by unlicensed “pirate” vessels, is the single greatest threat to all seabirds (AAD 2007; BirdLife International News 2003). Therefore, the magnitude of this threat to the species in its non-breeding range is significant. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the severity of threats to the Chatham petrel within its breeding range puts the species in danger of extinction throughout its range. Therefore, we find the Chatham petrel to be in danger of extinction throughout all of its range. Because we find that the Chatham petrel is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

Although little is known about the Fiji petrel and its life history, based on general information common to all other Procellariid species, we know that the range of the Fiji petrel changes intra-annually based on an established breeding cycle. During the breeding season, breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' non-breeding habitat and range.

BirdLife International (2007c) estimates the range of the Fiji petrel to be 154,000 km 2 (59,460 mi 2 ); however, BirdLife International (2000) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the Fiji petrel's breeding range focuses on the island where the species breeds.

Although the nesting area of this species has not been located (Priddel, et al. draft), the information available indicates that the species breeds on Gau Island, Fiji, where the few recorded sightings of this species on land have occurred (Priddel, et al. draft; RARE Conservation 2006a; Watling and Lewanavanua 1985). The species was originally known from just one specimen collected in 1855 on Gau Island. There were no additional confirmed sightings of the species until 1984 when an extensive, 16-month search on Gau Island revealed one additional sighting. The researchers used spotlights and recorded collared petrel calls in an attempt to attract petrels to the highlands area where the researchers were searching. On the first night of spotlighting, a single Fiji petrel flew into the researchers' light. No additional birds were found on this search expedition (Watling 1986; Watling and Lewanavanua 1985). There have been an additional 16 reported sightings of this species on land, all on Gau Island, and ten additional sightings at sea, however, many of these reports have not been substantiated (Priddel, et al. draft). In 2007, Priddell, et al. (draft) summarized all these records, specifying which records were credible. The researchers determined that of the 17 recorded sightings on land between 1965 and 2007, 12 were highly credible based on researchers' identification of dead specimens, photographs of specimens, or live specimens. In addition to the sightings on land, there have been ten sightings at sea, all since 1960. However, none of these reports have been substantiated. Based on researcher observation or detailed descriptions, three of these reports are considered by Priddel, et al. (draft) to be credible.

We consider the evidence sufficient to conclude that the Fiji petrel breeds on Gau Island because: (1) all 12 substantiated sightings of the species on land have been on Gau Island; (2) Procellariids return to land only for breeding purposes, and (3) the original specimen of this species collected in 1855 was determined to be an immature bird, based on its feathers and skull morphology (Bourne 1981, as cited in Priddel, et al. draft; Imber 1985b; Priddel, et al. draft); so it is reasonable to believe that its nest was in the vicinity.

Based on the locations of Fiji petrel sightings on Gau Island, the species' breeding habitat is most likely to be undisturbed mature forest on rocky, mountainous ground within the island's cloud forest highlands (del Hoyo, et al. 1992; RARE Conservation 2006a). Based on the nesting habits of other colonial seabirds, it has been suggested that Fiji petrels nest in close proximity to collared petrels ( Pterodroma leucoptera ), which nest on the ground in this rugged terrain of interior Gau Island (Watling and Lewanavanua 1985).

In 1985, it was estimated that over 27 square miles (70 km 2 ) of forest habitat up to 2,346 feet (715 meters) in elevation is potentially suitable for breeding and nesting of Fiji petrels on Gau Island (Watling and Lewanavanua 1985). Unlike the lowlands of Gau Island which have been cleared to a large extent for settlement, agriculture, and forest plantations, the upland interior forests where the species is believed to breed, has not been logged (Priddel, et al. draft; Veitayaki 2006). The only maintained inland trail leads to a telecommunication tower on a mountain peak just below Delaco. The 3,115 inhabitants of Gau Island live in coastal villages, where the majority live by subsistence fishing and farming, maintaining gardens up to 300 m in elevation. Although low-level forestry activities occur in lowland areas, no other intensive industry or agriculture is practiced on the island (Priddel, et al. draft). Veitayaki (2006) noted that the practice of shifting cultivation on Gau Island using improved machinery and the indiscriminant use of fire is rapidly progressing toward the cloud forests within the interior of the island. However, no information was provided to show this is actually occurring.

Veitayaki (2006), described a community-based conservation project on Gau Island that has been in place since 2001, whereby villagers in the district of Vanuaso Tikina are collaborating with the University of the South Pacific to sustainably manage their environmental resources. Goals of the project include preservation of the upland cloud forest, adoption of sustainable land use practices, protection of drinking water, and development of alternative sources of livelihood. The success of this project has provided momentum beyond the Vanuaso Tikina district, as there is interest in incorporating the same sustainable-use practices in the other villages on Gau Island (Veitayaki 2006).

In 2003, the World Resources Institute (WRI) reported that less than 1% (.88%) of Fiji's total land area is protected to such an extent that it is preserved in its natural condition (Earth Trends 2003a). Gau Island, however, is relatively pristine compared to most areas of Fiji due to the semi-subsistence lifestyle (Veitayaki 2006). The Fiji people show great pride in the Fiji petrel, making it the emblem of the national airline (Air Fiji) and presenting it on the Fijian Fifty-dollar banknote (Priddel, et al. draft). Legislation has been drafted to protect the Fiji petrel's habitat on Gau Island, once nesting colonies have been located (RARE Conservation 2006a) (see Factor D, below). Because Gau Island's upland forest habitat, where the species is most likely to breed, remains in a pristine condition and does not appear to be threatened with destruction or modification, we find that the present or threatened destruction, modification, or curtailment of this species' breeding habitat or range is not a threat to the species.

The Fiji petrel's range at sea is poorly known; the species has been recorded once at sea near Gau Island and once at sea 200 km (124.3 mi) north of Gau Island (Watling 2000, as cited in BirdLife International 2000; Watling and Lewanavanua 1985). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are unaware of any commercial, recreational, scientific, or educational purpose for which the Fiji petrel is currently being utilized.

The greatest threat to the long-term survival of the Fiji petrel is thought to be predation on breeding birds and their eggs and chicks by introduced predators such as rats and feral cats on Gau Island (BirdLife International 2000). Since nesting colonies of Fiji petrels have not been located, predation on the Fiji petrel has not been directly observed. However, cats and Pacific rats ( R. exulans ) have been found in the highland forests of Gau Island, where this species is most likely to breed (Imber 1986, as cited in Priddel, et al. draft; Watling and Lewanavanua 1985). The path to the telecommunications transmitter on the summit of Gau Island may have facilitated the movement of feral cats and Pacific and brown rats ( R. norvegicus ) into the Fiji petrel's breeding habitat (Watling 2000, as cited in BirdLife International 2000).

The remains of collared petrels have been found in feral cat scats and killings in the highland forests of Gau Island, where the Fiji petrel is also believed to breed. It is suggested that the collared petrel nests successfully despite this predation threat because its synchronized nesting during the first half of the year swamps cat predation. The collection of a first-flight young of the Fiji petrel on Gau Island in the month of October, however, indicates that this species has a more extended or later breeding season, putting this more sparsely populated species at greater risk of predation (Watling 1986). Cats and rats are known to have caused many local extirpations of other petrel species (Moors and Atkinson 1984, as cited in Priddel, et al. draft). According to Priddel, et al. (draft) there do not appear to be any inaccessible cliffs or mountainous ledges where Fiji petrels could nest out of the reach of cats or rats.

A feral pig ( Sus scrofa ) population has recently established in southern areas of Gau Island and is considered an emerging threat to the Fiji petrel (Priddel et al. draft). Feral pigs have caused the local extinction of other species of seabirds on numerous islands (Moors and Atkinson 1984, as cited in Priddel, et al. draft).

Protecting Fiji petrel nest sites from introduced predators by creating barriers around the nests is not possible at this time because the exact location of the nesting sites is unknown. There is no information indicating that predator eradication has been attempted on Gau Island. Even if a predator eradication program were to be implemented, protection of the nest sites would be difficult due to the permanent habitation of humans on the island. Even if cats were prohibited as pets, there is still a high potential for cats and rats to be transported to Gau Island in boats transporting humans or other shipments.

Because the threat of predation by introduced cats and rats has severely impacted closely related petrel species, and there are records of these introduced predators on Gau Island, especially feral cats and rats in the highland forests of Gau where the Fiji petrel is most likely to breed, we find that predation is a significant threat to the Fiji petrel.

We are unaware of any threats due to predation on Fiji petrels during the non-breeding season while the species is at sea.

Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Fiji petrel. Therefore, the significance of this threat to the Fiji petrel is unknown.

Although the Fiji petrel is protected from international trade under Fijian law (Government of Fiji 2002, 2003), this protection has not significantly reduced or removed the threat of predation within the species' breeding range, nor has it reduced the threat posed by long-line fisheries (see Factor E below) within its range at sea.

Community awareness of the conservation significance of the Fiji petrel has been promoted in Fiji. From 2002-2004, Milika Rati, a local conservationist on Gau Island, led a “Pride campaign” (RARE Conservation 2006a), a constituency-building program developed by the conservation organization RARE (RARE Conservation 2006b). Ms. Rati chose the Fiji petrel as the flagship mascot for this movement and used a series of high-profile activities to raise awareness of the conservation urgency of the species. This campaign resulted in a confirmed sighting of a Fiji petrel (RARE Conservation 2006a). A follow-up survey to the campaign revealed that 99 percent of the participants believed natural resource protection to be important, and 94 percent were aware that the Fiji petrel is at risk of extinction.

Based on increased public awareness of the Pride campaign, a formal agreement supporting the creation of a bird sanctuary for the species was signed by all 16 of Fiji's village chiefs (RARE Conservation 2006a).

The Australian Regional National Heritage Programme continues to fund the Pride campaign on Gau Island. The Wildlife Conservation Society, BirdLife International, and the National Trust of the Fiji Islands are collaborating to work towards implementation of conservation recommendations made by Ms. Rati, including minimizing predators (RARE Conservation 2006a).

Although the Fiji petrel is protected from international trade (Government of Fiji 2002, 2003) by Fijian law and public awareness and support for the species' protection on Gau Island is strong, these conservation measures have not significantly reduced the threats to the species.

Because of the paucity of recorded sightings of this species (see discussion of Factor A above), the population is apparently very small. The IUCN estimates the population to be less than 50 individuals, with a decreasing trend due to predation by introduced predators (BirdLife International 2007c). Species with such small population sizes are at greater risk of extinction. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987).

This species' risk of extinction is further compounded by its restricted current breeding range, which according to the best available information is limited to Gau Island, where an estimated 27 square miles (70 km 2 ) of potential breeding habitat is available. However, based on what is known about the species, this is considered a relatively small amount of appropriate habitat for breeding, particularly since breeding pairs, eggs, and nestlings on Gau Island face the pervasive threat of predation by introduced species such as feral cats and rats.

The Fiji petrel's restricted breeding range combined with its colonial nesting habits and small population size of less than 50 birds (BirdLife International 2007c) makes the species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., cyclones, flooding, and landslides) that destroy breeding individuals and their breeding habitat. Fiji is vulnerable to the devastating affects of cyclones inter-annually between November and April. On average, 15 cyclones affect this country each decade (World Meteorological Organization 2004). The most severe cyclone in within the past 100 years was cyclone Kina in January, 1993, with wind speeds of 120 knots spanning an area 180 miles (289.7 km) from its center. The Government of Fiji declared the area a disaster, because virtually all areas of Fiji were impacted by this cyclone and the associated flooding (UN Department of Humanitarian Affairs 1993). Landslides are common in Fiji's mountainous areas during these severe weather conditions (World Meteorological Organization 2004), and would be particularly threatening to breeding Fiji petrels and their breeding habitat.

While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as cyclones, the Fiji petrel does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. One such event could destroy the entire known breeding population on Gau Island.

Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species.

Although we are unaware of any documented cases of incidental take of Fiji petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see analysis under Chatham petrel, Factor E). Moreover, the lack of data on these impacts to the Fiji petrel could be a result of the species' low population number. Therefore, we find the incidental take of Fiji petrels by commercial long-line fishing operations to be a significant threat to the species.

The primary threat to the Fiji petrel is most likely predation by introduced feral cats and rats within the species' breeding range. The probability of introduced predators preying on this species is high given that introduced feral cats are documented to prey upon the closely related collared petrel in the interior forests of Gau Island where the Fiji petrel is most likely to nest. Furthermore, the devastating impact of predation by introduced species has been documented in several closely-related species. There is no information indicating that predator eradication has been attempted on Gau Island. This threat is magnified by the fact that the threat likely threatens the species throughout its breeding range, the interior forests of Gau Island. Although the Fiji petrel is legally protected from international trade, to our knowledge Fiji has not successfully implemented measures to protect the species from the threat of predation.

The Fiji petrel's low population size of less than 50 individuals puts the species at a high risk of extinction. The low population size combined with its restricted breeding and colonial nesting habits, typical of all Procellariid species, makes the species particularly vulnerable to the threat of random, naturally occurring events (e.g., cyclones) that are known to occur in Fiji and have the potential to destroy breeding individuals and their breeding habitat.

The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. There is no information indicating that Fiji has implemented measures to protect the species from long-line fishery activities. However, because the survival of this species is dependent on recruitment of chicks from its breeding range, the severity of threats to the Fiji petrel within its breeding range puts the species in danger of extinction throughout all of its range. Therefore, we find the Fiji petrel to be in danger of extinction throughout all of its range. Because we find that the Fiji petrel is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

The range of this species changes intra-annually based on an established breeding cycle. During the breeding season (September to May) (Imber, et al. 1994b; Taylor 1991), breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' non-breeding habitat and range.

BirdLife International (2007d) estimates the range of the magenta petrel to be 1,960,000 km 2 (7,568,000 mi 2 ); however, BirdLife International (2000) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the magenta petrel's breeding range focuses on the islands where the species is known to breed.

The magenta petrel breeds exclusively on Chatham Island, New Zealand, within relatively undisturbed inland forests (Crockett 1994; Imber, et al. 1994a). At least 23 breeding burrows have been discovered, all located near the Tuku-a-Tamatea River (BirdLife International 2007d; Brooke 2004, Hilhorst 2000, Taylor 2005, as cited in BirdLife International 2007d). Although some breeding burrows are on private land (Taylor 2000), the majority of known breeding burrows are located within the Tuku Nature Reserve (Reserve) (Chatham Island Taiko Trust 2007). This Reserve was established in 1984 to protect 5 square miles (12 km 2 ) of magenta petrel breeding habitat. In 1993, 1 square mile (2 km 2 ) of contiguous forested land was added to the Reserve by covenant, and a second covenant expected to be approved in the near future will protect an additional 4 square miles (11 km 2 ) of contiguous habitat to the Reserve (Chatham Island Taiko Trust 2007).

As a result of New Zealand's Biodiversity Strategy, initiated in the year 2000, all logging of indigenous forests on government land has been halted, and logging on private land is required to be sustainable (Green and Clarkson 2005). Breeding burrows have been found on private land (Taylor 2000), and sustainable logging practices would not necessarily protect these magenta petrel nest sites. The significant loss of magenta petrel burrows and colonies historically due to the alteration of habitat on Chatham Island for livestock grazing purposes (Crockett 1994) demonstrates the severe impacts that habitat alteration has on magenta petrel populations. Besides logging, fire is a threat to the magenta petrel's breeding habitat. Although the species' recovery plan identifies accidental fire as a threat to the magenta petrel, it does not address mitigation of this threat (NZDOC 2001a). The NZDOC deals with an average of 160 fires in New Zealand each year, suggesting that fires are relatively common in New Zealand (NZDOC n.d.). Taylor (2000) identifies flooding of burrows as a threat, given that most known burrows are in wet areas in valley floors. He also notes that destruction of nest-sites by pigs and dogs accompanying pig-hunters near the burrows threatens the magenta petrel's breeding habitat. These threats to the magenta petrel's breeding habitat are magnified by the species' restricted habitat area on Chatham Island. Because of the very small number of breeding pairs, any loss of breeders from the population would increase the species' threat of extinction. Therefore, we find that the present and threatened destruction of the habitat of this species to be a significant threat to the species.

The magenta petrel's range at sea is poorly known; however, research has documented foraging behavior south and east of the Chatham Islands (Imber, et al. 1994a). In addition, because the original specimen of this species was shot at sea eastwards in the temperate South Pacific Ocean, it is believed birds disperse there during the non-breeding season. We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are unaware of any commercial, recreational, scientific, or educational purpose for which the magenta petrel is currently being utilized.

The available information suggests that the most serious threat to the magenta petrel is predation on all life stages (eggs, chicks, and adults) of the species by introduced predators, including feral cats, pigs, weka, and rats. It is reported that periodically the species' entire annual breeding production is lost due to predation of eggs and chicks (BirdLife International 2007d). Permanent eradication of these introduced predators from Chatham Island is difficult due to the permanent habitation of humans on the island. Since the early 1990's, however, the NZDOC has monitored known breeding burrows and has implemented an intensive predator control program, including setting extensive trap lines and poisoning to remove introduced predators from the magenta petrel's breeding areas (Taylor 2000). This effort has significantly reduced the threat of predation on adult petrels, with only two being found dead in 20 years, as of the year 2000. However, a number of chicks are still lost in some seasons (Imber, et al. 1998). As additional burrows have been located and protection from predation expanded over the years, breeding has increased and breeding success has improved. In 1994, only four breeding pairs were known, but in 2004, 15 breeding pairs were observed (Brooke 2004, Hilhorst 2000, Taylor 2005, as cited in BirdLife International 2007d). Sixteen chicks were known to have fledged from 1987-2000 (Taylor 2000), and within a single year, 2002, a total of seven chicks fledged (BirdLife International 2007d). Eight birds fledged in the 2005 season, and a record 11 magenta petrel chicks fledged in the 2006 season (Chatham Island Taiko Trust 2006).

Even though the predator control program has decreased the threat of predation to the magenta petrel, birds, especially chicks, are still killed by introduced predators, and only areas where petrels are known to breed are protected. Therefore, we find predation by introduced species to be a significant threat to the species.

We are unaware of any threats due to predation on magenta petrels during the non-breeding season while the species is at sea.

Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the magenta petrel. Therefore, the significance of this threat to this species is unknown.

The magenta petrel is protected from disturbance and harvest under New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The petrel is designated as a Category A species by the NZDOC, which signifies the species is of the highest priority for conservation management (Molloy and Davis 1999). As such, the NZDOC developed a ten-year recovery plan for the magenta petrel in 2001, with the goals of preventing further loss of known breeding pairs, maximizing productivity at known breeding burrows, locating and protecting additional burrows, and establishing an additional predator-proof breeding area in southern Chatham Island (NZDOC 2001a). A measure of success of the recovery plan has been demonstrated by the successful protection of breeding pairs and increased productivity resulting from predator control efforts (see Factor C above). However, the threat of predation on magenta petrels by introduced species remains the greatest threat to the species. In 2006, a second protected area was established near the southern coast of Chatham Island at a location where magenta petrels were known to have bred in reasonable numbers 90 years ago. This 7.5-ha area, protected by landowner covenant, has been fenced to exclude livestock in an effort to allow the forest to recover. Within this area, 3 ha are enclosed by a predator-proof fence. Loudspeakers were placed on the site, and pre-recorded magenta petrel calls are being played to attract young males to the ground where it is hoped they will begin to dig burrows and eventually find a mate to breed. It is too early to know the success of this effort because it is anticipated that it will take several years for breeding to begin once young males start digging burrows. Captive rearing studies of the closely related grey-faced petrel ( P. macroptera ) have been undertaken, and its diet analyzed, to develop methods for captive rearing of magenta petrels in captivity should it ever be necessary to ‘rescue' abandoned or malnourished magenta petrel chicks (NZDOC 2001a; Taylor 2000).

New Zealand ratified the Agreement on the Conservation of Albatrosses and Petrels in November 2001, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the magenta petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not significantly reduced or removed the threat of incidental take of this species in long-line fisheries (see Factor E below).

Therefore, we find that regulatory protections have not significantly reduced the threats to the magenta petrel.

The magenta petrel population is extremely small, estimated at 120 individuals based on population surveys (Brooke 2004, Hilhorst 2000, Taylor 2005, as cited in BirdLife International 2007d) and is believed to be decreasing due to predation by introduced species (BirdLife International 2007d). The fact that it took 10 years of intensive searching to rediscover the species in 1978 is an indication of the rarity of the species. Species with such small population sizes are at greater risk of extinction. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987).

This species' risk of extinction is compounded by its restricted breeding range, which is limited to Chatham Island. Based on what is known about the species, the breeding habitat available on Chatham Island is a relatively small amount of appropriate habitat for breeding, particularly since breeding pairs, eggs, and nestlings on Chatham Island continue to be threatened by introduced species such as feral cats and rats.

The magenta petrel's restricted breeding range combined with its colonial nesting habits and small population size of less than approximately 120 birds makes the species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., storms, fire) that destroy breeding individuals and their breeding habitat (NCDOC 2001b). Fire is a high risk in the Chatham Islands because the climate is very dry during the summer, and the vegetation becomes tinder dry. Burrow-nesting species such as the magenta petrel are at a high risk because they are likely to suffocate from smoke inhalation or to be lethally burned inside or while attempting to escape from their burrows (Taylor 2000).

Another natural disaster, severe storms, has impacted New Zealand historically (see Chatham petrel discussion of Factor E), and so the likelihood of future impacts of storms is high. Although we are unaware of the impact of previous cyclones on the magenta petrel's population numbers or breeding habitat, the severity of the wind or waves created by such storms or flooding associated with storms has potential to significantly damage magenta petrel burrows. These known burrows are particularly vulnerable to flooding because they are located on valley floors (NZDOC 2001a).

While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as fire or storms, the magenta petrel does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. One such event could destroy the entire known breeding population on Chatham Island. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species.

Although we are unaware of any documented cases of incidental take of magenta petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see analysis under Chatham petrel, Factor E). Moreover, the lack of data on these impacts to the magenta petrel could be a result of the species' low population number. Therefore, we find the incidental take of magenta petrels by commercial long-line fishing operations to be a significant threat to the species.

Predation by introduced species such as rats, weka, and feral cats and pigs is a current, on-going threat to the magenta petrel that is of high magnitude that has not been controlled by human intervention. These introduced predators are known to destroy magenta petrel eggs, chicks, and adults, reducing the species' population (NZDOC 2001a), which is already very small, estimated at 120 individuals. Although the NZDOC has been actively working to protect magenta petrel nest sites from predation by introduced species, a number of chicks are still lost in some seasons (Imber, et al. 1998), and the breeding burrows that have not yet been located are not protected. This threat is magnified by the fact that a limited amount of breeding habitat is protected from habitat alteration or destruction. The breeding habitat that is protected remains at risk from accidental fires and flooding.

The magenta petrel's low population size of approximately 120 individuals puts the species at a high risk of extinction. The low population size combined with its restricted breeding habitat and colonial nesting habits makes the species particularly vulnerable to the threat of random, naturally occurring events (e.g., cyclones, fire) that are known to occur in New Zealand and have the potential to destroy breeding individuals and their breeding habitat. One such event, such as a cyclone during the nesting season could destroy the entire breeding population on Chatham Island.

The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. Although New Zealand implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the magenta petrel is not currently offered protection by this Agreement. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the severity of threats to the magenta petrel within its breeding range puts the species in danger of extinction throughout all of its range. Therefore, we find the magenta petrel to be in danger of extinction throughout all of its range. Because we find that the magenta petrel is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

The range of this species changes intra-annually based on an established breeding cycle. During the breeding season, which appears to vary by population (Taylor 2000), breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' non-breeding habitat and range.

BirdLife International (2007b) estimates the range of the Cook's petrel to be 76,300,000 km 2 (29,460,000 mi 2 ); however, BirdLife International (2000) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the Cook's petrel's breeding range focuses on the islands where the species is known to breed.

The Cook's petrel breeds on Little Barrier, Great Barrier, and Codfish Islands in the Chatham Islands, New Zealand, covering a total land area of 126 square miles (327 km 2 , Wikipedia 2007e,g,h). The species breeds on steep slopes near ridge tops at 984 feet (300 m) above sea level or higher and prefers unmodified forest habitat with low, open canopies (Rayner, et al. 2007b). Fire is unlikely to be a threat to this species' breeding habitat because Cook's petrels breed primarily in damp forests (Imber 1985a, as cited in Taylor 2000). Breeding burrows are usually long and deep among tree roots and are not easily collapsed; so trampling by introduced species is not likely to be a threat to Cook's petrel nest sites (Taylor 2000).

According to the best available information, a large amount of suitable habitat is available to the Cook's petrel on the three islands where it breeds. Of these islands, the largest, the Great Barrier Island covering 110 square miles (285 km 2 ), is the only one that has a permanent human population. This small population of 1,100 people is located primarily within coastal settlements, away from the species' breeding habitat. Inhabitants mostly make a living from farming and the tourist industry, but the island is not considered a major tourist destination due to its relative remoteness (Wikipedia 2007g). There is no indication that the Cook's petrel's breeding habitat on Great Barrier Island is threatened with human-induced habitat destruction or modification.

The other two islands, Little Barrier and Codfish Islands, covering 11 and 5 square miles (28 km 2 and 14 km 2 ), respectively, are wildlife sanctuaries with restricted access. These islands are not inhabited by humans aside from rotational conservation staff (Wikipedia 2007e,h). Therefore, the Cook's petrel's breeding habitat on these islands is not threatened with human-induced habitat destruction or modification.

In 2004, the Maungatautari Ecological Island Trust prepared “An Ecological Restoration Plan for Maungatautari,” which outlined suggested restoration of habitat and the removal of threats to attract or reintroduce Cook's petrel to the North Island in the Chatham Islands chain (McQueen 2004). The Trust has established a 13 square mile (34 km 2 ) predator exclosure to protect nest sites, and research is now underway to investigate reintroduction of the Cook's petrel to Maungatautari (Rayner, et al. 2007a). If successful, this effort would expand the breeding range of the species.

Based on the lack of identified threats to the Cook's petrel's breeding habitat within its breeding range, we find that the present or threatened destruction, modification, or curtailment of the species' habitat or range is not a threat to the species.

During the non-breeding season, the Cook's petrel migrates to the east Pacific Ocean, primarily between 34 °S and 30 °N (Heather and Robertson 1997, as cited in BirdLife International 2000). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are unaware of any commercial, recreational, scientific, or educational purpose for which the Cook's petrel is currently being utilized.

The introduction of predatory species by European settlers is believed to have contributed to the historical population decline in this species. The best available information indicates that the Codfish Island population declined due to predation by an introduced bird, the weka (Marchant and Higgins 1990, as cited in BirdLife International 2000). In 1934, there were an estimated 20,000 breeding pairs on Codfish Island, but weka predation reduced the population to 100 pairs by 1984 (Bartle, et al. 1993, as cited in Taylor 2000). On Little Barrier and Great Barrier Islands, introduced feral cats and the Pacific rat reduced population numbers. The black rat ( R. rattus ) also contributed to the decline on Great Barrier Island (Heather and Robertson 1997, Marchant and Higgins 1990, as cited in BirdLife International 2000; Taylor 2000).

Due to extensive predator eradication programs implemented by NZDOC, by 1980, feral cats had been eradicated from Little Barrier Island. By 1985, weka had been eradicated from Codfish Island (Taylor 2000). Rats had been successfully eradicated from Codfish Island by 1998 and from Little Barrier Island by 2006 (NZDOC 2006).

Although the introduced predators that threaten Cook's petrels have been eradicated from Little Barrier and Codfish Islands, introduced predators have not been removed from Great Barrier Island. As a result, the Cook's petrel population on Great Barrier Island, which has been reduced to 20 breeding pairs, continues to be severely threatened by introduced feral cats, the black rat, and the Pacific rat (Marchant and Higgins 1990, as cited in BirdLife International 2000), and the risk of local extinction of this species is high. Loss of this population would decrease the genetic diversity of the species, increasing the species' risk of extinction.

Even on Little Barrier and Codfish Islands where introduced predators have been removed, there is a continued risk that predators will be re-introduced to the island by boats transporting conservation and research staff to the islands. Given the magnitude of the devastation these species have, once introduced, and the likelihood that they could be re-introduced, we find introduced predators to be an ongoing threat to Cook's petrel populations on Little Barrier and Codfish Islands.

We are unaware of any threats due to predation on Cook's petrels during the non-breeding season while the species is at sea.

Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Cook's petrel. Therefore, the significance of this threat to this species is unknown.

The Cook's petrel is protected from disturbance and harvest under New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The petrel is designated as a Category C species by the NZDOC, which signifies the species is a third priority species for conservation management (Molloy and Davis 1999). As discussed in Factor C above, predator eradication efforts have not adequately reduced the threat of predation on the species.

New Zealand ratified the Agreement on the Conservation of Albatrosses and Petrels in November 2001, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the Cook's petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not significantly reduced or removed the threat of incidental take of this species in long-line fisheries (see Factor E below).

Because the available regulatory protections have not significantly reduced the threats to the Cook's petrel, and this species is a lower priority species for intensive conservation management, we find that regulatory protections have not significantly reduced the threats to the species.

Although we are unaware of any documented cases of incidental take of Cook's petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see the Chatham petrel Factor E). Therefore, we consider the incidental take of Cook's petrels by commercial long-line fishing operations to be a significant threat to the species.

The primary threat to the Cook's petrel is predation by introduced feral cats, the black rat, and the Pacific rat within the species' breeding range, particularly on Great Barrier Island. Eradication of introduced predators on this island is difficult due to the permanent habitation of humans on the island; so this threat on Great Barrier Island is likely to persist. This threat, combined with the low number of breeding pairs (approximately 20) on Great Barrier Island is likely to result in local extinction.

The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. Although New Zealand implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the Cook's petrel is not currently offered protection by this Agreement. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the threats to this species within its breeding range put the species at risk.

The overall population number of the Cook's petrel is not low, and the two largest populations of this species, those breeding on Little Barrier and Codfish Islands, with 50,000 and 100 pairs, respectively are reported to be increasing (Marchant and Higgins 1990, as cited in BirdLife International 2000; Taylor 2000). As a result, the species does not currently appear to be in danger of extinction. However, there is a high risk of local extinction on Great Barrier Island within the foreseeable future. The loss of the breeding birds on Great Barrier Island would not only impact the overall species' population growth but would decrease its genetic variability, increasing the Cook's petrel's risk of extinction throughout its range. Therefore, we find that the Cook's petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range. Because we find that the Cook's petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range, there is no reason to consider its status in a significant portion of its range.

As in other Procellariid species, the range of the Galapagos petrel changes intra-annually based on an established breeding cycle. During the breeding season, breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' non-breeding habitat and range.

BirdLife International (2007e) estimates the range of the Galapagos petrel to be 14,200,000 km 2 (5,483,000 mi 2 ); however, BirdLife International (2000) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the Galapagos petrel's breeding range focuses on the island where the species breeds.

The Galapagos petrel is known to breed on the islands of Santa Cruz, Floreana, Santiago, San Cristóbal, and Isabela within the Galapagos archipelago (Cruz and Cruz 1987; Harris 1970). The species breeds in the humid and thickly vegetated uplands of these islands (Harris 1970) at elevations between 984 and 2,953 feet (300 and 900 meters) (Baker 1980, as cited in BirdLife International 2000; Cruz and Cruz 1987, 1996). The species prefers to nest under thick vegetation in sufficient soil for burrowing (Harris 1970). The species is known to nest within burrows or natural cavities on slopes, in craters, in sinkholes, in lava tunnels, and in gullies (Baker 1980, as cited in BirdLife International 2000; Cruz and Cruz 1987, 1996).

On the island of Santa Cruz, the Galapagos petrel historically bred at lower elevations, down to 180 meters (590.6 feet). However, habitat modification of these lower elevations for agricultural purposes restricted the Galapagos petrel's use of these lower elevation areas for breeding. On San Cristóbal Island, historical clearance of vegetation in highland areas for intensive grazing purposes drastically reduced the species' breeding habitat on the island (Harris 1970).

In 1959, Ecuador designated 97% of the Galapagos land area as a National Park, leaving 3% of the remaining land area distributed between Santa Cruz, San Cristóbal, Isabela, and Floreana Islands. The park land area is divided into various zones signifying the level of human use (Parque Nacional Galapagos Ecuador n.d). Although the islands where the Galapagos petrel is known to breed includes a large ‘conservation and restoration’ zone, all of these islands, except Santiago, include a significant sized ‘farming’ zone (Parque Nacional Galapagos Ecuador n.d), where agricultural and grazing activities continue to threaten the Galapagos petrel's habitat and range. According to Baker (1980, as cited in BirdLife International 2000), at least half of the Galapagos petrel's current breeding range on Santa Cruz Island is farmed. The rationale for maintaining farming zones within the Galapagos National Park is to sustain the economy of island inhabitants and encourage local consumption of traditional products (e.g., vegetables, fruits, and grazing animals) (Parque Nacional Galapagos Ecuador n.d).

The primary threat to the Galapagos petrel's breeding habitat is destruction of breeding habitat by introduced feral mammals, such as goats ( Capra hircus ), pigs, donkeys ( Equus asinus ), and cattle ( Bos taurus ). These species trample and destroy Galapagos petrel nest-sites, and reduce breeding habitat by overgrazing (e.g., goats) and uprooting (e.g., pigs) the vegetation (Cruz and Cruz 1987, 1996; Eckhardt 1972).

In 1997, the Galapagos National Park Service (GNPS) and the Charles Darwin Foundation initiated ‘Project Isabela,’ an ecological restoration program which required removal of all feral goats from Santiago and northern Isabela Islands [Note: northern Isabela is separated from southern Isabela by a 12 km-wide lava field (Charles Darwin Foundation 2006)]. In 2006, the GNPS announced that no feral goats could be found in these areas, noting that monitoring efforts would continue to ensure successful eradication [Charles Darwin Research Station (CDRS) 2006]. Concurrent with the goat eradification program, feral donkeys were removed from Santiago Island and Alcedo Volcano on northern Isabela Island (Carrion, et al. 2007). After a 30-year eradication program, feral pigs were successfully removed from Santiago Island, with the last pig being shot in April, 2000 (Cruz, et al. 2005).

Despite the success of these eradication efforts, introduced species, especially feral goats, continue to threaten Galapagos petrel habitat on the human populated islands of Santa Cruz, Floreana, San Cristóbal, and southern Isabela. Feral goats are especially problematic in areas bordering farmland, and eradication of feral livestock in these human population areas is difficult (CDRS 2006).

Based on the widespread and ongoing threats of farming activities and introduced species to the Galapagos petrels' breeding habitat, we find that the present and threatened destruction of this species' breeding habitat is a threat to the species.

The Galapagos petrel's range at sea is poorly known; however, research has documented foraging behavior around the Galapagos islands, as well as east and north of the islands. We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are unaware of any commercial, recreational, scientific, or educational purpose for which the Galapagos petrel is currently being utilized.

The threat of predation on the Galapagos petrel is exemplified by the rapid decline of populations of this species in the early 1980s as a result of predation by introduced species, such as dogs ( Canis lupus familiaris ), cats, pigs, and black and brown rats (BirdLife International 2007e; Cruz and Cruz 1996), supplemented by natural predation by the Galapagos hawk ( Buteo galapagoensis ) (Cruz and Cruz 1996). In some cases, these population declines were as high as 81 percent over four years (BirdLife International 2007e). From 1980 to 1985, the population on Santa Cruz Island declined from an estimated 9,000 pairs to 1,000 pairs (Baker 1980, as cited in BirdLife International 2000; Cruz and Cruz 1987). During the same time period, the Santiago Island population declined from 11,250 pairs to less than 500 pairs (Cruz and Cruz 1987; Tomkins 1985, as cited in BirdLife International 2000), and the number of birds breeding on Floreana Islands was estimated to have been reduced by up to 33% annually for four years (Coulter, et al. 1981, as cited in BirdLife International 2000).

Introduced feral dogs, cats, and pigs are common predators of all life stages (eggs, chicks, fledglings, and adults) of the Galapagos petrel (Cruz and Cruz 1987, 1996). Eggs and hatchlings are eaten by black and brown rats (BirdLife International 2007e). Adding to predation by introduced species, the Galapagos hawk has been known to further reduce population numbers; young and aged petrels are particularly vulnerable to this predator. In 1985, monitoring of 510 adult Galapagos petrels on Santiago Island showed that the species' mortality rate due to predation by pigs and Galapagos hawks was greater than 50 percent (BirdLife International 2007e).

Predator control and petrel monitoring programs are currently in place on Floreana, Santa Cruz, and Santiago Islands (Vargus and Cruz 2000, as cited in BirdLife International 2000). Eradication efforts to remove feral pigs, which eat nestlings, juvenile, and adult petrels on Santiago Island, succeeded by the end of 2000 (Cruz, et al. 2005). Re-colonization of pigs on Santiago Island is not likely since the island is not inhabited by humans, and there are no farming zones on the island where pigs could be placed. Predation by introduced rats and cats continue to pose a predation threat to Galapagos petrels on Santiago Island, compounded by predation by the Galapagos hawk. Efforts are underway on Santiago Island to remove introduced rats, but there is no information to indicate that eradication has been achieved.

Although pigs were removed from Santiago Island, they continue to threaten the Galapagos petrel on the other four islands where the petrel is known to breed. Although predation by pigs, as well as cats, rats, and dogs, on Floreana and Santa Cruz Islands continues to threaten the Galapagos petrel, predator control efforts have been initiated on these two islands and are beginning to show some success in reducing the threat to Galapagos petrels. For example, prior to predator control efforts on Floreana Island, only 33 percent of the banded Cerro Pajas colony of the Galapagos petrel population returned to breed and nest as adults (Coulter, et al. 1982, as cited in Cruz and Cruz 1990a). In 1982, predator control was initiated on this island (Cruz and Cruz 1990a), and by 1985, return rates for banded birds was 80-90 percent due to the predator control program (Cruz and Cruz 1990a). To emphasize the significance of such a reduction in predation on adults, with respect to petrel population growth, the Hawaiian dark-rumped petrel ( Pterodroma sandwichensis ), a species related to the Galapagos petrel, exhibited a 5 percent annual decline in its population size when adult survival rates were reduced as low as 10 percent (Simons 1984).

There is no information to indicate that there have been predator control efforts on San Cristóbal or Isabela Islands where cats, rats, dogs, and pigs continue to threaten the species.

Although the threat of predation by pigs on Santiago Island has been eliminated and the threat of predation is being reduced on Floreana and Santa Cruz Islands, the Galapagos petrel continues to be threatened by one or more predators on all of the islands within the species' breeding range. This threat has been shown to result in rapid population declines. Therefore, we find predation to be a threat to the Galapagos petrel.

We are unaware of any threats due to predation on Galapagos petrels during the non-breeding season while the species is at sea.

While several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Galapagos petrel. Therefore, the significance of this threat to this species is unknown.

Ecuador is a member of ACAP, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the Galapagos petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not significantly removed or reduced the threat of incidental take of this species in long-line fisheries (see Factor E below).

Ecuador designated the Galapagos Islands as a national park, and the islands were declared a World Heritage Site in 1979 (BirdLife International 2000); however these protections have not eliminated the threat of predation nor the threat of nest-site destruction by livestock (BirdLife International 2007e).

Oil and chemical spills can have direct effects on Galapagos petrel populations, and based on previous incidents, we consider this a significant threat to the species. For example, on January 16, 2001, a tanker ran aground at Schiavoni Reef, about 2,625 feet (800 meters) from Puerto Baquerizo Moreno on San Cristóbal Island (Woram 2007). By January 28, 2001, the slick reached the islands of Isabela and Floreana. Only one Galapagos petrel from Cristóbal Island is documented to have died; however, 370 large animals were reported to be contaminated by oil. The total effect of the oil spill on Galapagos petrels and other species is difficult to quantify for a variety of reasons. Due to the behavior of ocean-dependent species and the high toxicity of diesel, many affected animals might have died and sunk undetected. In addition, the effects of oiling may be highly localized, given the vastness of the Galapagos coastline, thereby making detection unlikely. Finally, because the long-term effects of oiling were not monitored, the total mortality from this event is likely underestimated (Lougheed, et al. 2002).

Although we are unaware of any documented cases of incidental take of Galapagos petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see the Chatham petrel discussion of Factor E). Therefore, we consider the incidental take of the Galapagos petrel by commercial long-line fishing operations to be a significant threat to the species.

Barbed wire fences on agricultural lands cause mortality in adult Galapagos petrels (BirdLife International 2007e). With the exception of Santiago Island, agricultural lands are present throughout the species' breeding range. Although there is no information available regarding the numbers and trends of mortality due to fences, this source of mortality in combination with other threats from long-line fishing operations and chemical and oil spills poses a significant risk to the survival of the species.

There is evidence that the productivity of Galapagos petrel populations is indirectly affected by fluctuations in ocean temperatures and currents, which impact the Galapagos petrel's prey base. During the El Niño-Southern Oscillation (ENSO) of 1982-1983, Cruz and Cruz (1990b) found that the growth rate of Galapagos petrel chicks was lower and fledging occurred later than in other years. These so-called “ENSO chicks” reached a lower peak mass at a later age than non-ENSO chicks. The extended nestling period and reduced growth rates of ENSO chicks are believed to reflect a decline in the availability of food resources because of diminishing ocean productivity during the ENSO. No information is available on the long-term effect on petrel population productivity due to this change in ocean temperatures and currents, and, therefore, the significance of this threat to the Galapagos petrel is indeterminate.

In the 1980's, the Galapagos petrel declined as much as 81% in four years due primarily to predation by introduced predators. According to BirdLife International (2007e), conservation efforts have slowed but not halted the population decline. Despite predator control efforts, the Galapagos petrel continues to be threatened by one or more predators on all of the islands within the species' breeding range. The Galapagos petrel's breeding habitat is also threatened by introduced species, especially feral goats, on the islands of Santa Cruz, Floreana, San Cristóbal, and southern Isabela, where barbed wire fences contribute to the decline in the number of adult Galapagos petrels.

The threats within the species' breeding range are compounded by the threats to the species within its range at sea. Oil spills can have direct effects on Galapagos petrel populations, and based on the occurrence of a previous incident within the species' range at sea, we consider this a significant threat to the species. Incidental take from long-line fishing in the species' range at sea is an additional threat to the species. Although Ecuador implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the Galapagos petrel is not currently offered protection by this Agreement. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the threats to this species within its breeding range puts the species at risk.

The overall population number of the Galapagos petrel is not low, estimated at 20,000 to 60,000 birds (BirdLife International 2007e). As a result, the species does not currently appear to be in danger of extinction. However, as the population numbers continue to decline as a result of the threats discussed above, the risk of extinction of this species continues to increase. Therefore, we find that the Galapagos petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range. Because we find that the Galapagos petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range, there is no reason to consider its status in a significant portion of its range.

Although little is known about Heinroth's shearwater and its life history, based on general information common to all other Procellariid species, we know that the range of the species changes intra-annually based on an established breeding cycle. During the breeding season, breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' non-breeding habitat and range.

BirdLife International (2007f) estimates the breeding range of Heinroth's shearwater to be 400,000 km 2 (154,400 mi 2 ); however, BirdLife International (2000) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the Heinroth's shearwater's breeding range focuses on the islands where the species is most likely to breed.

Although the nesting area of this species has not been located, the information available indicates that the species breeds on Bougainville Island in Papua New Guinea and the islands of Kolombangara and Rendova in the Solomon Islands, where the few recorded sightings of this species have occurred (Buckingham, et al. 1995, Coates 1985, 1990, Iles 1998, as cited in BirdLife International 2000). The species was originally known from a few historic specimens from Watom, Papua New Guinea, suggesting historical breeding there, but there have been no recent records from this island. More recently, two birds were captured inland on Bougainville Island. One of these birds was described as being recently fledged; so it is reasonable to believe that its nest was in the vicinity (Hadden 1981, as cited in BirdLife International 2000). The conclusion that the bird breeds on Bougainville Island is further supported by recent observations in the seas around this island, including one flock of 250 birds (Coates 1985, 1990, as cited in BirdLife International 2000). It is also reasonable to conclude that breeding occurs on Kolombangara Island, because recently up to nine birds were recorded off this island where all timed records have been in the afternoon or evening, the time when breeding birds of this species typically return to their nest sites from foraging excursions (Buckingham, et al. 1995, Gibbs 1996, Scofield 1994, as cited in BirdLife International 2000). Although not as conclusive as the other two sites due to only one observation, the species is also likely to breed on nearby Rendova Island, where one bird was seen flying out of the mountains at dawn. Since Procellariids occupy land only to breed, it is reasonable to conclude that this bird was leaving its nest site.

Based on the locations of inland sightings of the Heinroth's shearwater and a comparison to closely-related species, it is believed this species breeds in high mountains (Buckingham, et al. 1995, as cited in BirdLife International 2000). The three islands where this species is likely to breed are all mountainous, volcanic islands in a wet tropical climate.

Bougainville Island is 9,317.8 km 2 (3,598 mi 2 ) in size (United Nations System-Wide Earthwatch 1998a), is thickly vegetated, and rugged. There are extensive areas of undisturbed lowland and montane rainforest. Most of the 175,160 people travel by foot or small boat, and live by subsistence agriculture and fishing [Central Intelligence Agency (CIA) 2007a; United Nations System-Wide Earthwatch 1998a; Wikipedia 2007a]. Exploitation of Papua New Guinea's natural resources has been hindered due to the islands' rugged terrain and the high cost of developing infrastructure (CIA 2007a). We are, therefore, unaware of any present or threatened destruction, modification, or curtailment of the Heinroth's shearwater's current breeding habitat on Bougainville Island.

The forests on the islands of Kolombangara and Rendova, with land areas of 687.8 km 2 (265.6 mi 2 ) and 411.3 km 2 (158.8 mi 2 , United Nations System-Wide Earthwatch 1998b,c), respectively, are threatened by deforestation. Timber is the Solomon Islands' most important export commodity. Unsustainable forestry practices, combined with clearing of land for agricultural and grazing purposes and over-exploitation of wood products for use as fuel, is resulting in the destruction of vast areas of forest throughout the Solomon Islands (CIA 2007b). All the lower slopes on Kolombangara Island have been logged except for one 500 m (1,640 feet) strip (United Nations System-Wide Earthwatch 1998b). In 2003, the World Resources Institute reported that none of the Solomon Island's total land area is protected to such an extent that it is preserved in its natural condition (Earth Trends 2003b). Because forests on the islands of Kolombangara and Rendova are the likely breeding habitat of the Heinroth's shearwater and these forests are being reduced through deforestation, we find that the destruction of the Heinroth's shearwater's breeding habitat on these two islands is likely to threaten the survival of the species.

The Heinroth's shearwater's range at sea is poorly known; up to 20 birds have been reported in the Bismarck seas, ranging to the Madang Province on the north coast of Papua New Guinea (Bailey 1992, Clay 1994, Coates 1985, 1990, Hornbuckle 1999, as cited in BirdLife International 2000). Observations have also been reported in the seas around Bougainville Island, including a flock of 250 birds (Coates 1985, 1990, as cited in BirdLife International 2000). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are unaware of any commercial, recreational, scientific, or educational purpose for which the Heinroth's shearwater is currently being utilized.

Although the Heinroth's shearwater's nest sites have not been located, all three islands where the species is most likely to breed have introduced rats, cats, and dogs (Buckingham, et al. 1995, as cited in BirdLife International 2000). All these introduced species contributed to drastic declines in the Galapagos petrel (see Galapagos petrel discussion of Factor C), and introduced cat and rats are known to have caused many local extirpations of other petrel species (Moors and Atkinson 1984, as cited in Priddel, et al. draft). Although the Heinroth's shearwater is believed to breed in high, inaccessible mountains, rats have been observed to at least 2,953 feet (900 m) on Kolombangara Island and are a threat to this burrow-nesting species (Buckingham, et al. 1995, as cited in BirdLife International 2000).

Available information does not indicate that there have been attempts to eradicate introduced predators from these islands, which would be difficult due to the permanent habitation of humans on the islands. Even if the species were eradicated, there is still a high potential for cats and rats to be transported to the islands in boats transporting humans or other shipments.

Because the threat of predation by introduced rats and feral cats and dogs has severely impacted closely related petrel species, and there are records of these introduced predators on the three islands where the Heinroth's shearwater is most likely to breed, we find that predation is a significant threat to this species.

We are unaware of any threats due to predation on Heinroth's shearwaters during the non-breeding season while the species is at sea.

Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Heinroth's shearwater. Therefore, the significance of this threat to the Heinroth's shearwater is unknown.

No regulatory mechanisms are known that contribute to or reduce or remove threats to this species.

The population of the Heinroth's shearwater is estimated at 250 to 999 individuals, which is considered to be very small (BirdLife International 2007f). Species with such small population sizes are at greater risk of extinction. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987).

The Heinroth's shearwater's small population size combined with its colonial nesting habits, as is typical of all Procellariid species, makes this species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., volcanic eruptions, cyclones, and earthquakes) that destroy breeding individuals and their breeding habitat. All three of the islands where the Heinroth's shearwater is most likely to breed are in a geologically active area resulting in a significant risk of catastrophic natural events. These islands are subject to frequent earthquakes, tremors, volcanic activity, typhoons, tsunamis, and mudslides (CIA 2007a,b). Of these three islands, the species' habitat on Bougainville is at most risk from volcanic activity. There are seven volcanoes on Bougainville that have been active in the last 10,000 years. Bagana is an active volcano that has had 22 eruptions since 1842, with most being explosive. Some of these explosive eruptions have produced extremely hot, gas-charged ash, which is expelled with explosive force, moving with hurricane speed down the mountainside. Bagana has been erupting since 1972, creating slow-moving lava flows (Bagana 2005). These volcanic explosions and lava flows have great potential to destroy Heinroth's shearwaters and their breeding habitat in the mountainous areas where they are most likely to breed.

Landslides in mountainous area are associated with severe storms that are common in this geographic region (World Meteorological Organization 2004), and would be particularly threatening to breeding Heinroth's shearwaters and their breeding habitat during these extreme weather events.

While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as volcanoes or typhoons, the Heinroth's shearwater does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species.

Although we are unaware of any documented cases of incidental take of Heinroth's shearwaters petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see analysis under Chatham petrel, Factor E). Moreover, the lack of data on these impacts to the Heinroth's shearwaters could be a result of the species' low population number. Therefore, we find the incidental take of Heinroth's shearwaters by commercial long-line fishing operations to be a significant threat to the species.

The best available information indicates that the Heinroth's shearwater is threatened by predation by introduced rats, and feral cats and dogs within the species' breeding range. The probability of these introduced predators preying on this species is high given that all these introduced species are on the islands where the species is likely to breed, and rats have been found in some of the high mountainous areas where the Heinroth's shearwater is most likely to nest. Furthermore, the devastating impact of predation by these introduced species has been documented in several closely-related species. Finally, there is no available information that indicates that efforts have been initiated to eradicate introduced predators from the three islands where the species is most likely to breed. This threat is magnified by the fact that this threat likely threatens the species throughout its breeding range.

The Heinroth's shearwater is also threatened on Kolombangara and Rendova Islands, approximately half of its breeding range, by habitat destruction. The species' low population size of 250 to 999 individuals further increases this species' risk of extinction, and combined with its colonial nesting habits makes the species particularly vulnerable to the threat of catastrophic naturally occurring events (e.g., volcanoes) that are known to occur with frequency in the species' breeding range.

The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. There is no available information to indicate that the governments of Papua New Guinea or Solomon Islands have implemented measures to protect the species from long-line fishery activities. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the threats to this species within its breeding range put the species at risk.

Despite the lack of population trend information, due to the species' small population size, the lack of conservation measures and regulatory protections for this species, and the identified threats that have caused declines in closely related species, we find that the threats within its breeding range make the Heinroth's shearwater likely to become in danger of extinction within the foreseeable future throughout all of its range. Because we find that the Heinroth's shearwater is likely to become in danger of extinction within the foreseeable future throughout all of its range, there is no reason to consider its status in a significant portion of its range.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that the Chatham petrel, Fiji petrel, Galapagos petrel, magenta petrel, Cook's petrel, and Heinroth's shearwater are not native to the United States, no critical habitat is being proposed for designation with this rule.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the Chatham petrel, Cook's petrel, Fiji petrel, Galapagos petrel, magenta petrel and Heinroth's shearwater. These prohibitions, pursuant to 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered or threatened wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22, for endangered species, and 17.32 for threatened species. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

The Service intends that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other government agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. We are particularly seeking comments regarding biological information, population status, commercial trade, or other relevant data concerning any threat (or lack thereof) to these species. We also seek comments on the appropriate conservation status for the six bird species addressed in this proposed rule.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments you send by e-mail or fax. We will also not accept anonymous comments; your comment must include your first and last name, city, State, country, and postal (zip) code. Please note that we may not consider comments we receive after the date specified in the DATES section in our final determination.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that we will post your entire comment—including your personal identifying information—on http://www.regulations.gov . While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 110, Arlington, VA 22203, 703-358-1708.

Final promulgation of the regulations concerning the listing of these species will take into consideration all comments and additional information that we receive, and such communications may lead to a final regulation that differs from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of the publication of the proposal in the Federal Register . Such requests must be made in writing and be addressed to the Chief of the Division of Scientific Authority at the address given above.

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register .

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq. The regulation will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the proposed rule (groupings and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the proposed rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the proposed rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to the Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You also may e-mail comments to Exsec@ios.doi.gov .

A list of the references used to develop this proposed rule is available upon request (see FOR FURTHER INFORMATION CONTACT ).

The primary author of this proposed rule is Mary M. Cogliano, Ph.D., Division of Scientific Authority, U.S. Fish and Wildlife Service (see ADDRESSES section).

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

The general category scallop fishery is currently an open access fishery that allows any vessel to fish for up to 400 lb (181.44 kg) of Atlantic sea scallops (scallops), provided the vessel has been issued a general category or limited access scallop permit. This open access fishery was established in 1994 by Amendment 4 to the FMP (Amendment 4) to allow vessels fishing in non-scallop fisheries to catch scallops as incidental catch, and to allow a small-scale scallop fishery to continue outside of the limited access and effort control programs aimed at the large-scale scallop fishery. Over time, the overall participation in the general category fishery has increased. In 1994, there were 1,992 general category permits issued. By 2005 that number had increased to 2,950. In 1994, there were 181 general category vessels that landed scallops, while in 2005 there were over 600.

Out of concern about the level of fishing effort and harvest from the general category scallop fleet, the Council recommended that a Federal Register notice should be published to notify the public that the Council would consider limiting entry to the general category scallop fishery as of a specified control date. NMFS subsequently established the control date of November 1, 2004. In January 2006, the Council began the development of Amendment 11 to evaluate alternatives for a limited access program and other measures for general category vessels. The Council held 35 meetings open to the public on Amendment 11 between January 2006 and June 2007. After considering a wide range of issues, alternatives, and public input, the Council adopted a draft supplemental environmental impact statement (DSEIS) for Amendment 11 on April 11, 2007. Following the close of the public comment period on June 18, 2007, the Council adopted Amendment 11 on June 20, 2007.

Amendment 11 would establish criteria and authority for determining the percentage of scallop catch allocated to the general category fleet and would establish the IFQ program. However, these specific allocation amounts have been being developed by the Council as part of Framework 19 to the FMP (Framework 19) which will establish scallop fishery management measures for the 2008 and 2009 fishing years. After proposing the allowable levels of fishing based on updated survey information and fishing mortality targets, the total allowable catches (TACs) described below would be specified through a separate rulemaking for Framework 19. Framework 19 also would specify management measures for the 2008 and 2009 fishing years that would be recommended if Amendment 11 is not approved.

A Notice of Availability (NOA) for Amendment 11 was published on November 30, 2007. The comment period on the NOA ends on January 29, 2008.

The proposed regulations are based on the description of the measures in Amendment 11. NMFS has noted several instances where it has interpreted the language in Amendment 11 to account for any missing details in the Council's description of the proposed measures. NMFS seeks comments on all of the measures in Amendment 11, particularly the noted instances.

Amendment 11 would require vessels to be issued a limited access general category (LAGC) scallop permit in order to land scallops under general category rules. All general category permits would be limited access, requiring that a vessel owner submit an application demonstrating that the vessel is eligible for the permit. The current general category permits (1A- non VMS, and 1B- VMS permits) would be replaced with three types of LAGC scallop permits: IFQ LAGC scallop permit (IFQ scallop permit); Northern Gulf of Maine (NGOM) LAGC scallop permit (NGOM scallop permit); and incidental catch LAGC scallop permit (Incidental scallop permit).

A vessel would be eligible to be issued an IFQ scallop permit if the owner could document landings of at least 1,000 lb (454 kg) of scallop meats, as verified by NMFS records or documented through dealer receipts, in any fishing year between March 1, 2000, and November 1, 2004, and issuance of a general category scallop permit to the vessel during the fishing year in which the landings were made.

The owner of a vessel who cannot qualify for an IFQ scallop permit, or who elects not to apply for an IFQ scallop permit, could instead be issued a NGOM scallop permit. The NGOM scallop permit would allow the vessel to fish in the NGOM exclusively, defined as the waters north of 42° 20′ N. Lat. A vessel would qualify for the NGOM scallop permit if it had been issued a valid general category scallop permit as of November 1, 2004. There would be no landings eligibility criteria. Vessels issued this permit would be subject to additional restrictions outlined in the description of the NGOM Scallop Management Area below.

A vessel would qualify for an Incidental scallop permit if it had been issued a valid general category scallop permit as of November 1, 2004. There would be no landings eligibility criteria. This provision is intended to allow an incidental level of scallop catch for vessels that meet the permit eligibility, but not the landings criteria. This permit would allow such vessels to possess and land up to 40 lb (18.14 kg) of scallops per trip, and is intended to allow landing of incidental scallop catch. Some vessels that could qualify for an IFQ scallop permit may opt for the Incidental scallop permit because it permits vessels to land an incidental catch of scallops on an unlimited number of trips. In drafting the proposed rule, NMFS presumed that the limited access permit restrictions specified below apply to all three types of LAGC scallop permit, unless specifically excluded in Amendment 11.

A vessel owner would be required to submit an initial application for a LAGC scallop permit or confirmation of permit history within 90 days of the effective date of the final regulations. The Council recommended the shorter than usual application period to expedite the transition to the IFQ program. The IFQ program cannot be implemented until all IFQ permits are issued because the number of vessels and the contribution factors for all qualified IFQ scallop vessels will be used to determine each vessel's IFQ share of the TAC allocated to IFQ scallop vessels (see “IFQs for Limited Access General Category Scallop Vessels” below).

Amendment 11 would establish measures to govern future transactions related to limited access vessels, such as purchases, sales, or reconstruction. These measures would apply to all LAGC scallop vessels. Except as noted, the provisions proposed in this amendment are consistent with those that govern most of the other Northeast region limited access fisheries; there are some differences in the limited access program for American lobster.

Initial eligibility for an LAGC scallop permit would have to be established during the first year after the implementation of Amendment 11. A vessel owner would be required to submit an application for an LAGC scallop permit or CPH within 90 days of the effective date of the final regulations.

Amendment 11 specifies landings and permit history criteria that a vessel would have to meet to qualify for LAGC permits. It also specifies that an IFQ scallop vessel would be allocated IFQ based on its best year of scallop landings and the number of fishing years active during the qualification period of March 1, 2000, through November 1, 2004. Amendment 11 specifies that qualifying landings would have to be from the same scallop fishing year (March 1 through February 28/29) that a vessel was issued a general category scallop permit during the qualification period. Therefore, this proposed rule requires that, for any landings to be used in determining eligibility, best year of fishing, years active, and the resulting contribution factor, the vessel must have been issued a general category scallop permit in the fishing year the landings were made.

The best year of scallop landings would be the scallop fishing year during the qualification period with the highest amount of scallop meats landed, provided the vessel was issued a general category scallop permit. Years active would be the number of scallop fishing years during the qualification period that the vessel landed at least 1lb (0.45 kg) of scallops provided the vessel was issued a general category scallop permit. In-shell scallop landings would be converted to meat-weight using the formula of 8.33 lb (3.78 kg) of scallop meats for each U.S. bushel of in-shell scallops, for qualification purposes.

NMFS landings data from dealer reports would be used to determine a vessel's eligibility for an IFQ scallop permit, a qualified IFQ scallop vessel's best year of scallop landings, and years active in the general category scallop fishery. The NMFS permit database would be used to determine permit criteria eligibility for all LAGC scallop permits. Applicants would be allowed to dispute the denial of an LAGC permit, or contribution factor (based on best year and years active), through the eligibility appeals process described below.

A person who does not currently own a fishing vessel, but who has owned a qualifying vessel that has sunk, or been destroyed, or transferred to another person, would be required to apply for and receive a CPH if the fishing and permit history of such vessel has been retained lawfully by the applicant. Such an application would have to be made within 90 days of the effective date of the final regulations for Amendment 11. The CPH provides a benefit to a vessel owner by securing limited access eligibility through a registration system when the individual does not currently own a vessel. To be eligible to obtain a CPH, the applicant would have to show that the qualifying vessel meets the eligibility requirements for the applicable LAGC permit, and that all other permit restrictions described below are satisfied. Issuance of a valid CPH would preserve the eligibility of the applicant to apply for an LAGC permit for a replacement vessel based on the qualifying LAGC scallop vessel's fishing and permit history at a subsequent time. A CPH would have to be applied for in order for the applicant to preserve the LAGC scallop permit eligibility of the qualifying vessel. Vessel owners who were issued a CPH could obtain a vessel permit for a replacement vessel based upon the previous vessel's history that would utilize the CPH. IFQ associated with a CPH would count toward a vessel owner's overall ownership of IFQ, and would be restricted under the 5-percent ownership cap.

An LAGC scallop permit and fishery history would be presumed to transfer with a vessel at the time it is bought, sold, or otherwise transferred from one owner to another, unless it is retained through a written agreement signed by both parties in the vessel sale or transfer.

Amendment 11 adopts the permit splitting provision currently in effect for other limited access fisheries in the region. Therefore, an LAGC scallop permit may not be issued to a vessel if the vessel's permit or fishing history has been used to qualify another vessel for a limited access permit. This means all limited access permits, including LAGC scallop permits, must be transferred as a package when a vessel is replaced or sold. However, Amendment 11 explicitly states that the permit-splitting provision would not apply to the transfer/sale of general category scallop fishing history prior to the implementation of Amendment 11, if any limited access permits were issued to the subject vessel. Thus, vessel owners who sold vessels with limited access permits and retained the general category scallop fishing history with the intention of qualifying a different vessel for the LAGC scallop permit would be allowed to do so under Amendment 11. This differs from the current permit splitting provisions of other limited access fishery regulations, and specifically the Atlantic herring limited access permit splitting provision recently implemented under Amendment 1 to the Atlantic Herring FMP. A vessel with an existing limited access scallop permit (i.e., full-time, part-time, or occasional) that also qualifies for an LAGC scallop permit could not split the LAGC scallop permit from the existing limited access scallop permit.

Consistent with previous limited access programs, no more than one vessel would be able to qualify, at any one time, for a limited access permit or CPH based on that or another vessel's fishing and permit history, unless more than one owner has independently established fishing and permit history on the vessel during the qualification period and has either retained the fishing and permit history, as specified above, or owns the vessel at the time of initial application under Amendment 11. If more than one vessel owner claimed eligibility for a limited access permit or CPH, based on a vessel's single fishing and permit history, the NMFS Regional Administrator would determine who is entitled to qualify for the permit or CPH.

Amendment 11 specifies an appeals process for applicants who have been denied an LAGC scallop permit. Such applicants would be able to appeal in writing to the Regional Administrator within 30 days of the denial, and any such appeal would have to be based on the grounds that the information used by the Regional Administrator was incorrect.

The appeals process would allow an opportunity for a hearing before a hearing officer designated by the Regional Administrator. The owner of a vessel denied an LAGC scallop permit could fish for scallops under the applicable general category scallop regulations, provided that the denial has been appealed, the appeal is pending, and the vessel has on board a letter from the Regional Administrator authorizing the vessel to fish under the LAGC scallop permit category. The Regional Administrator would issue such a letter for the pendency of any appeal. If the appeal was ultimately denied, the Regional Administrator would send a notice of final denial to the vessel owner; and the authorizing letter would become invalid 5 days after receipt of the notice of denial, but no longer than 10 days after the date that the denial letter is sent.

A vessel issued an LAGC scallop permit would not be limited by vessel size upgrade restrictions if the owner wished to modify or replace the vessel. However, if that vessel has also been issued limited access permits under § 648.4 that have upgrade restrictions (i.e., all other limited access permits issued in accordance with § 648.4), the upgrade restrictions for that fishery would apply to any modification or replacement, unless the permit with the restrictions were permanently relinquished as specified under “voluntary relinquishment of eligibility,” below.

A vessel's baseline refers to those specifications (length overall, gross registered tonnage net tonnage, and horsepower) from which any future vessel size change is measured. Because there are no vessel size upgrade restrictions, a vessel issued an LAGC scallop permit would not have baseline size and horsepower specifications. However, if that vessel has also been issued limited access permits under § 648.4 that have upgrade restrictions, any size change would be restricted by those baseline specification requirements, unless those permits were permanently relinquished as specified in “Voluntary relinquishment of eligibility” below.

The term vessel replacement (vessel replacement), in general, refers to replacing an existing limited access vessel with another vessel. This rule would require that the same entity must own both the LAGC scallop vessel (or fishing history) that is being replaced, and the replacement vessel. Unlimited upgrades of vessel size and horsepower through a vessel replacement would be allowed, unless the vessel to be replaced is restricted on upgrades because it has been issued other limited access permits pursuant to § 648.4.

A vessel issued an IFQ scallop permit could not be allocated more than 2 percent of the TAC allocated to the fleet of vessels issued IFQ scallop permits. In addition, an individual could not have ownership interest in more than 5 percent of the TAC allocated to the fleet of vessels issued IFQ scallop permits. The only exceptions to these ownership cap provisions are if a vessel's initial contribution factor results in the ownership of more than 2 percent of the overall TAC initially upon initial application for the IFQ scallop permit, or if the vessel owner owns more than 5 percent of the overall TAC initially upon initial application for the IFQ scallop permits. This restriction would not apply to existing limited access scallop vessels that also have been issued an IFQ scallop permit since such vessels are already subject to the 5-percent ownership cap for limited access permits and because such vessels would not be permitted to transfer IFQ between vessels.

A vessel owner could voluntarily exit the LAGC fishery by permanently relinquishing the permit. In some circumstances, it could allow vessel owners to choose between different permits with different restrictions without being bound by the more restrictive requirement (e.g., lobster permit holders may choose to relinquish their other Northeast Region limited access permits to avoid being subject to the reporting requirements associated with those other permits). If a vessel's LAGC scallop permit or CPH is voluntarily relinquished to the Regional Administrator, no LAGC scallop permit could ever be reissued or renewed based on that vessel's permit and fishing history.

A vessel owner must maintain the limited access permit status for an eligible vessel by renewing the permits on an annual basis or applying for issuance of a CPH. All LAGC scallop permits must be issued on an annual basis by the last day of the fishing year for which the permit is required, unless a CPH has been issued. However, as a condition of the permit, the vessel may not fish for, catch, possess, or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any fishing year, or the permit either has been voluntarily relinquished or otherwise forfeited, revoked, or transferred from the vessel. A complete application for such permits must be received no later than 30 days before the last day of each fishing year. A CPH does not need to be renewed annually. Once a CPH has been issued to an individual who has retained the LAGC scallop permit and fishing history of a vessel, it remains valid until it is replaced by a vessel permit through the vessel replacement process.

A vessel's LAGC scallop permit history would be cancelled due to the failure to renew, in which case, no LAGC scallop permit could ever be reissued or renewed based on that vessel's permit and fishing history.

Amendment 11 would implement a cost recovery program, with the payment procedures and details to be established in Framework 19. Under the IFQ program, vessels would be required to pay up to 3 percent of their revenue from scallop landings to offset the cost of managing, enforcing, and implementing the IFQ program, as required by the Magnuson-Stevens Act. Failure to pay cost recovery fees by the specified due date would result in NMFS action invalidating the IFQ scallop permit. If the invalidation of the IFQ scallop permit due to failure to pay for cost recovery fees is not resolved in the course of the applicable fishing year, no IFQ scallop permit could ever be reissued or renewed based on that vessel's permit and fishing history.

A vessel issued one of the existing limited access scallop permits (i.e., a full-time, part-time, or occasional scallop permit) may also be eligible to be issued a LAGC scallop permit if it meets the qualification criteria described above. Such a vessel would be allowed to fish under general category regulations when not fishing under the scallop DAS or Area Access programs. Existing limited access scallop vessels were not required to be issued a general category scallop permit. Therefore, to be issued an Incidental or NGOM scallop permit, the limited access vessel would have to have been issued a valid limited access scallop permit as of November 1, 2004. To be issued the IFQ scallop permit, an existing limited access scallop vessel would have to have been issued a valid limited access scallop permit during the period March 1, 2000, through November 1, 2004, and have documented landings of at least 1,000 lb (454 kg) of scallop meats when not fishing under the DAS or Area Access programs, as verified by NMFS records or documentation through dealer receipts. A limited access scallop vessel that does not qualify for a LAGC scallop permit could not fish for, possess, or retain scallops when not fishing under the scallop DAS and Area Access programs. Limited access scallop vessels that also qualify for an IFQ scallop permit would not be permitted to transfer IFQ. Therefore, the general category maximum allocation restriction or the maximum percentage ownership restriction for general category TAC would not apply. The limited access general category permit and IFQ scallop permit could not be split from the limited access scallop permit.

Once the IFQ program is implemented, 5 percent of the total projected annual scallop catch would be allocated to vessels with IFQ scallop permits. This would be calculated by taking the total projected annual scallop catch, then deducting estimated catch by incidental catch general category vessels and the total allowable catch (TAC) in the NGOM. Five percent of the resultant catch would then be allocated to the IFQ scallop fishery. IFQs for IFQ scallop vessels would be derived from the 5-percent TAC allocation. The 5-percent allocation would not apply to current limited access vessels that also have IFQ scallop permits. Limited access scallop vessels with IFQ scallop permits would be allocated 0.5 percent of the total projected annual scallop catch after deduction of incidental catch and the NGOM TAC. IFQs for these vessels would be derived from the 0.5-percent TAC allocation. The remaining 94.5 percent of the total projected annual scallop catch, after deduction of incidental catch and the NGOM TAC, would be allocated for harvest by the current limited access scallop fishery.

A vessel issued an IFQ scallop permit would be allocated a percentage of the TAC allocated to the IFQ scallop fishery based on the vessel's “contribution factor.” The contribution factor for each vessel would be determined by multiplying a vessel's best fishing year of landings during the March 1, 2000, through November 1, 2004, qualification period by an index factor based on the number of years the vessel was active in the scallop fishery during the qualification period. A vessel would be determined to be active in the scallop fishery if it landed at least 1 lb (0.45 kg) of scallops. The index factors for varying levels of participation during the qualification period are: 0.75 for 1year; 0.875 for 2 years; 1.0 for 3 years; 1.125 for 4 years; and 1.25 for 5 years. The index factor is intended to provide more weight in calculating the allocation for vessels that have been participating in the general category fishery for a longer period of time. A vessel's contribution percentage will be determined by dividing its contribution factor by the sum of the contribution factors of all vessels issued a limited access general category scallop permit. A vessel's IFQ would be determined by multiplying the TAC for IFQ scallop vessels by the vessel's contribution percentage. IFQ would be issued to owners of CPHs since that vessel's contibution would be included in the determination of IFQs as described below. IFQ associated with CPHs would be transferable.

The following is an example of how a vessel's IFQ would be determined using hypothetical values: A vessel landed 48,550 lb (22,023 kg) of scallops in its best year, and was active in the general category scallop fishery for 5 years. The vessel's contribution factor would be equal to 48,550 lb (22,023 kg)*1.25 = 60,687 lb (27,527 kg). For this example, the highest total scallop landings is assumed to be 3.8 million lb (1,724 mt), and the number of qualifying vessels is assumed to be 380. The sum of the contribution factors for limited access general category scallop vessels is assumed to be 4.18 million lb (1,896 mt). The contribution percentage of the above vessel would therefore be 1.45 percent (60,687 lb (27,527 kg) / 4.18 million lb (1,896 mt) = 1.45 percent). The vessel's IFQ would be the vessel's contribution percentage (1.45 percent) multiplied by the TAC allocated to all IFQ scallop vessels. Assuming a TAC equal to 2.5 million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg) (1.45 percent × 2.5 million lb (1,134 mt)).

The IFQ program cannot be implemented until all IFQ scallop permits and CPHs have been issued because the calculation of the IFQ shares requires the contribution factors for all qualified IFQ scallop vessels to be totaled. However, eligibility, best year, and the contribution factor for each vessel would be determined upon initial application for a limited access general category scallop permit. This issue is discussed under the “Measures for the transition period to IFQ” description below.

IFQ scallop vessel and CPH owners would be allowed to transfer IFQ on a temporary or permanent basis. A temporary IFQ transfer (or lease) would allow one IFQ scallop vessel to combine IFQs to increase fishing opportunity for a single fishing year. A permanent IFQ transfer would permanently move the IFQ from one vessel to another. Since a permanent IFQ transfer would require the vessel to transfer the IFQ scallop permit (and any other permits) to the transferee, the transferring vessel would not be eligible to enter into an agreement to transfer IFQ back to the vessel, unless the vessel replaced another IFQ scallop vessel. Each IFQ allocation would have to be transferred in full before it is utilized, and a vessel that used IFQ in a fishing year could not transfer its IFQ during that fishing year. An IFQ transfer would not be approved if it would result in the receiving IFQ scallop vessel having a share of more than 2 percent of the total TAC allocation to the IFQ fishery. IFQ transfers would not be permitted for existing limited access scallop vessels that also have been issued an IFQ scallop permit.

The Magnuson-Stevens Act requires any IFQ program to include a cost recovery program, whereby NMFS would collect up to 3 percent of ex-vessel value of landed product to cover actual costs directly related to enforcement and management of an IFQ program. The authority and procedures for collection of cost recovery fees would be established in this rule. Further details of the cost recovery program will be proposed in Framework 19, in which TACs would be established for LAGC scallop vessels. As recommended in Amendment 11, the IFQs would be rounded up to the nearest 10-lb unit. The cost recovery fee for an IFQ that was temporarily transferred to another IFQ scallop vessel would be the responsibility of the owner of the transferring IFQ scallop vessel, not the owner of the receiving IFQ scallop vessel.

Amendment 11 recognizes that it would take between 12 to 24 months to determine the universe of qualified vessels that would be issued an IFQ scallop permit. The time is necessary to accommodate applicants who pursue permits through the appeals process. As a result, it would not be possible to implement an IFQ program at the same time that NMFS is in the process of determining eligibility and contribution factors. Recognizing the problem, Amendment 11 specifies measures for a transition period. The transition measures include a quarterly TAC equal to 10 percent of the total projected scallop catch. Vessels that qualify for an IFQ scallop permit and vessels under appeal for an IFQ scallop permit would be authorized to fish for scallops, subject to the quarterly TAC, with all landings counted toward the TAC. When the TAC is projected to be attained, the general category fishery would close for the remainder of the quarter. Any underage or overage of the first quarter would be applied to the third quarter, and any underage or overage of the second quarter would be applied to the fourth quarter. The quarterly TACs for the 2008 fishing year, beginning March 1, 2008, will be specified in Framework 19. A quarterly TAC is proposed rather than an annual TAC due to concerns about derby fishing. This quarterly distribution of TAC is intended to reduce the negative effects of a race to take the TAC. The 10-percent allocation would result in a TAC that would be consistent with recent projections for scallop mortality from the general category fishery and would account for additional effort expected from vessels under the appeals process.

The proposed action includes a mechanism to allow the owners of IFQ scallop vessels to form voluntary sectors that would manage their own fishing activity as a group. This rule outlines the procedures that would be used to form a sector, and the sector program requirements. The sector provision includes: Restrictions on participation; definition and requirements for operations plans; specifications for the review, approval, and revocation process; allocation of TAC to sectors; sector share determination; restrictions on sector membership changes; restrictions on interaction between sectors; monitoring and enforcement provisions for sectors; a prohibition on trading of allocation between sectors; restrictions on vessel movement between sectors; a 20-percent maximum total allocation for a single sector. The 400-lb (181.44-kg) possession limit would be maintained for vessels in a sector. The formation of sectors is intended to provide greater flexibility for participants and create outcomes that are more socially and economically relevant for fishing groups within the biological limitations of the fishery (TACs). The 20-percent cap on a sector's share of the IFQ is intended to prevent one sector from controlling an excessive percentage of the general category allocation. Unlike the sector program for the Northeast multispecies fishery, Amendment 11 would not allow sectors to be exempt from any scallop regulations, except that participating vessels would not be restricted by their IFQs.

The NGOM scallop management area would be waters north of 42°20′ N. Lat. The NGOM scallop management area would be managed separately, because the Council concluded that it has unique characteristics such as smaller vessels and sporadic fishable resource. The NGOM scallop management area would establish scallop fishing controls appropriate for the fishery while protecting the resource in the area from overharvest, if and when scallops are present in the area. Measures include the separate NGOM general category scallop permit and qualification criteria; a TAC based on historical landings from Federal waters in the NGOM; a possession limit of 200 lb (90.72 kg) of scallops per trip, with one trip per calendar day allowed; a provision that an IFQ vessel fishing in the NGOM scallop management area would have scallop landings deducted from its IFQ and the NGOM scallop management area TAC; and a prohibition on possession of scallops by any vessel, once the NGOM scallop management area TAC is harvested. Amendment 11 does not include specific restrictions for vessels fishing under scallop DAS in the NGOM, except that such vessels could not continue fishing in the NGOM once the TAC for the area has been reached.

All LAGC scallop vessels would be required to install and operate a VMS unit and would be required to declare a general category trip or other fishing activity code, as appropriate. In addition, IFQ and NGOM scallop vessels would be required report scallop landings through VMS. This provision would improve monitoring of an IFQ program by requiring vessels to report their catch, approximate time of landing, and port of landing before crossing the VMS demarcation line in order to enhance enforcement of the IFQ program and NGOM scallop fishery. The report submitted through VMS would include the VTR serial number, amount of scallops on-board, the port of landing, and the approximate time of arrival in port. This monitoring requirement would enable NMFS to monitor the TAC and IFQs on a more real-time basis.

The issuance date of general category permits would be changed from May 1 to March 1 of each year to be consistent with the scallop fishing year. Synchronizing the issuance of general category scallop permits with the scallop fishing year would make this permit consistent with the existing limited access scallop permit issuance date.

This action would clarify that vessels that are fishing under a Northeast multispecies or monkfish DAS would not be restricted to the 144-ft (43.9-m) net sweep restriction at § 648.52 that currently specifies that a vessel using a net with a sweep greater than 144 ft (43.9 m) cannot fish for, possess, retain, or land more than 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops. The Council recommended this change because the 144-ft (43.9-m) restriction was not intended to apply to vessels fishing for other species that would have an incidental catch of scallops, provided the vessel is issued the appropriate LAGC scallop permit.

Amendment 11 proposes to allow an IFQ scallop vessel to possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line only. Once shoreward of the VMS demarcation line, a vessel could possess only 50 bu (17.62 hL) of in-shell scallops. This measure is proposed because scallop vessel owners and operators testified that it often takes more than 50 bu (17.62 hL) of in-shell scallops to yield 400 lb (181.44 kg) of scallop meats. NMFS notes that similar increases were not specified by the Council for the NGOM possession limits of 200 lb (90.72 kg) of shucked or 25 bu (8.8 hL) in-shell scallops or the 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops. However, given the rationale for the increased possession limit, it would be inconsistent to apply the increased possession limit for only one LAGC scallop permit category or declared fishing activity. Therefore, this proposed rule specifies that vessels fishing for scallops up to 200 lb (90.72 kg) or 25 bu (8.80 hL), or up to 40 lb (18.14 kg) or 5 bu (1.76 hL), could possess up to 50 bu (17.62 hL) or 10 bu (3.52 hL), respectively, seaward of the VMS Demarcation Line.

Finally, this proposed rule would clarify the ownership cap restriction on current limited access vessels specified at § 648.4(a)(2)(i)(M). The ownership cap restriction was implemented through Amendment 4 (59 FR 2757, January 19, 1994). Currently, the regulation states that an individual may not own, or have an ownership interest in, more than 5 percent of limited access scallop vessels. The provision in Amendment 4 is as follows: “No entity or individual may have ownership interest in more than 5 percent of the total number of scallop permits issued at implementation and through the appeal process.” However, the current regulations are not clear whether this cap applies to CPHs. Provisions for CPH were implemented in 1995 (60 FR 62224, December 5, 1995), after the 5-percent cap provision in Amendment 4 was implemented. The current regulation does not mention CPHs, which represent sunken or destroyed vessels, or vessels that were sold without fishing and permit history, that are eligible for limited access scallop permits. In terms of future ownership, a CPH is equivalent to a limited access permit. Since it is clear that the Council intended the ownership cap to restrict an owner to having an ownership interest in no more than 5 percent of all limited access scallop permits, this proposed rule would clarify that an individual cannot own more than 5 percent of the limited access permit eligibilities in the form of a limited access permit or CPH. This clarification would make the regulations consistent with the Council's original intent under Amendment 4.

Public comments are solicited on Amendment 11 and its incorporated documents through the end of the comment period, January 29, 2008, stated in the NOA for Amendment 11 (72 FR 67691, November 30, 2007). Public comments on this proposed rule must be received by January 29, 2008, the end of the comment period specified in the NOA for Amendment 11, to be considered in the approval/disapproval decision on the amendment. All comments received by January 29, 2008, whether specifically directed to Amendment 11 or the proposed rule, will be considered in the approval/disapproval decision on Amendment 11. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 11, but will be responded to in the final rule.

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

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

The Council prepared an FSEIS for Amendment 11; an NOA was published on October 19, 2007. The FSEIS describes the impacts of the proposed Amendment 11 measures on the environment. Since most of the measures would determine whether or not fishers can continue fishing for scallops, and at what level in the future, the majority of the impacts are social and economic. Although the impacts may be negative in the short term, particularly at an individual fisher level, the long-term benefits of a sustainable scallop fishery would be positive. Elimination of the open access fishery is expected to have positive impacts on the biological and physical environment.

This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Public reporting burden for these collections of information are estimated to average as follows:

1. Initial application for an IFQ scallop permit - 30 min per response;

2. Initial application for an NGOM or Incidental scallop permit - 15 min per response;

3. Completion of ownership cap form for IFQ scallop vessel owners - 5 min per response;

4. Appeal for an LAGC scallop permit and IFQ scallop vessel contribution factor - 2 hr per response;

5. Application for a vessel replacement or confirmation of permit history - 3 hr per response;

6. Purchase and installation of a VMS unit for general category scallop vessels—2 hr per response;

7. IFQ scallop vessel VMS trip notification requirements—2 min per response;

8. NGOM scallop fishery VMS trip notification requirements—2 min per response;

9. Incidental catch vessel VMS trip notification requirements—2 min per response;

10. Pre-landings VMS notification requirements—5 min per response;

11. Application for an IFQ transfer—10 min per response;

12. Electronic payment of cost recovery payment—2 hr per response;

13. LAGC scallop fishery sector applications—150 hr per response; and

14. Sector operations plans—100 hr per response.

These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Regional Administrator as specified in ADDRESSES above, and by e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.

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.

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities, with data analyzed on a fishing year basis (March 1 through February 28/29). A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the SUMMARY . A summary of the IRFA follows:

The vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $4.5 million according to the dealer's data for the 2004 and 2005 fishing years. Therefore, there are no differential impacts between large and small entities. According to this information, annual total revenue averaged about $940,065 per limited access vessel in 2004, and over $1 million per limited access vessel in 2005. Total revenues per vessel, including revenues from species other than scallops, exceeded these amounts, but were less than $4.5 million per vessel. Average scallop revenue per general category vessel was $35,090 in 2004 and $88,702 in 2005 fishing years. Average total revenue per general category vessel was higher, exceeding $240,000 in 2004 and 2005. According to the preliminary estimates, average revenues per vessel were lower in the first 11 months of 2006 for all permit categories, because of lower scallop landings and prices.

The measures proposed in Amendment 11 would affect vessels with limited access scallop and general category permits. Section 4.4 (Fishery-related businesses and communities) of the Amendment 11 document provides extensive information on the number and size of vessels and small businesses that will be affected by the proposed regulations, by port and state. These affected entities are the owners of 318 vessels that were issued full-time permits in 2006, (including 55 small-dredge and 14 scallop trawl permits); 32 part-time; and 1 occasional limited access permit. In addition, 2,501 permits were issued to vessels in the open access General Category, and more than 500 of these vessels landed scallops during the last 2 years.

This action contains several new collection-of-information, reporting, and recordkeeping requirements. The following describes these requirements.

NMFS estimates that there would be 500 applicants for an IFQ scallop permit, 200 applicants for a NGOM scallop permit, and 500 applicants for an Incidental scallop permit. Each IFQ scallop permit application would take approximately 30 min per application, while each NGOM and Incidental scallop permit application would take approximately 15 min to process. Consequently, the total time burden for the initial applications would be 425 hr. Amendment 11 estimates that 370 IFQ scallop permit, 190 NGOM scallop permit, and 465 Incidental scallop vessels are expected to qualify and consequently renew their application each year. Permit renewal is estimated to take 15 min per application, on average, for a total burden of 256 hr per year. The 3-year average total public time burden for IFQ, NGOM, and Incidental scallop permit initial applications, and permits renewals would be 312 hr. The labor cost, at an hourly rate of $15, would be $4,680.

To implement the 5-percent IFQ ownership cap, vessel owners would be required to submit an ownership form with each permit renewal. Since there would be an estimated 370 IFQ permits, there would be 370 ownership forms each year. NMFS estimates that it would take 5 min to complete each ownership form; therefore, the annual reporting burden would be 31 hr, or 21 hr, averaged over the first 3 years. At an hourly rate of $15, the annualized time burden would be approximately $315.

About 80 applicants are expected to appeal the denial of their permit application over the course of the 3-month application period. The appeals process is estimated to take 2 hr per appeal, on average, for a total burden of 160 hr. The burden of this one-time appeal, annualized over three years, would be 54 hr. At an hourly rate of $15, the time burden would be approximately $810.

A standard form for vessel replacements, upgrades, and permit history applications (RUPH application) would be used for LAGC scallop permits, although vessel upgrades would not apply for LAGC scallop vessels unless the vessel is issued other limited access fishery permits that have upgrade restrictions. With the exception of upgrade restrictions, LAGC scallop vessels would be subject to similar replacement and permit history restrictions as other Northeast Region limited access fisheries. Completion of an RUPH application requires an estimated 3 hr per response. It is estimated that 100 RUPH applications would be received annually. The resultant burden would be up to 300 hr. At an hourly rate of $15 per hour, the total public cost burden for RUPH applications would be $4,500 per year.

This action would require vessels issued any of the LAGC scallop permits to install VMS. Most vessels that qualify for an IFQ scallop permit would have been participating in the directed general category scallop fishery, which already has VMS requirements prior to the implementation of Amendment 11. Therefore, it is likely that most vessels that will qualify for an IFQ permit already have VMS. Vessels that qualify for an Incidental or NGOM scallop permit would not likely be participating in the directed general category scallop fishery. However, vessels that qualify for an Incidental or NGOM scallop permit may already have VMS reporting requirements through other fisheries, particularly the Northeast multispecies fishery. It is possible that some new permit holders would decide to purchase and install new VMS units in order to participate in one of these fisheries. Therefore, NMFS estimates that up to 10 vessels would purchase and install VMS units as a result of Amendment 11. NMFS estimates that it would take 2 hr to purchase each unit, for a total time burden of 20 hr; annualized over 3 years, the burden would be about 7 hr per year. NMFS anticipates that a vessel owner would hire a VMS technician to install the VMS unit; therefore there would be no installation time burden for the vessel owner. At an hourly rate of $15 per hour, the total public cost burden for VMS purchases would be $105 per unit. Since position polling is automated, there is no associated time burden with this reporting requirement.

Each time a LAGC scallop vessel leaves port or is moved from the dock or mooring, the operator must submit a VMS trip declaration code to notify NMFS of the vessel's fishing activity.

According to 2007 VMS trip declaration data for 1B scallop vessels, approximately 40 percent of the time general category 1B vessels declare a general category scallop trip; the remainder are codes for other activities (if a vessel leaves port, general category regulations require it to declare a trip, regardless of the fishing activity). The 2008 scallop harvest specifications have not yet been finalized, but the proposed IFQ quota is 2.5 million lb (1,134 mt). Assuming each trip harvests the 400-lb (181.4-kg) possession limit, there would be an estimated 6,250 IFQ trip declarations per year, with an additional 9,375 trip declarations for some activity other than scallop fishing, for a total of 15,625 trip declarations. Following each trip, NMFS assumes that the vessel operator would submit a power-down code to reduce polling costs and conserve battery power. NMFS estimates that it takes approximately 2 min to submit a trip declaration or power-down code. NMFS estimates that the IFQ fleet would submit 31,250 VMS declaration codes (15,625 trip declarations and 15,625 corresponding power-down code submissions); therefore, the annual IFQ trip declaration time burden would be 1,042 hr per year. At an hourly rate of $15, this burden would be $15,630.

The proposed NGOM TAC is expected to be 64,000 to 100,030 lb (29,030 to 45,373 kg) each year. Assuming each trip lands the 200-lb (90.72-kg) possession limit, and using the upper limit of the proposed TAC, it is projected that there would be up to 500 NGOM trip declarations per year. For economic purposes it is unlikely that a vessel owner would incur the cost of a VMS unit solely to have a NGOM permit. Therefore, assuming these vessels already have VMS reporting requirements for other fisheries, VMS declaration reporting requirements for activities other than NGOM activity have already been accounted for in other PRA collections. The increased reporting burden resulting from the NGOM permit category would be approximately 500 trip declarations and 500 power-down declarations. Assuming each declaration takes approximately 2 min, the annual NGOM trip declaration time burden would be approximately 34 hr. At an hourly rate of $15, this burden would be $510.

In 2004 and 2005, dealer data indicated that the percent of scallops landed in quantities of 40 lb (18.14 kg) or less was 0.02% and 0.06%, respectively, of the total scallop landings. The average scallop landings on these trips in 2004 and 2005 was 19,363 lb (8,783 kg). Using this average, NMFS estimates that there were approximately 500 general category trips that landed scallops incidental to other fishing. Assuming this rate would remain approximately the same, there would be an estimated 500 Incidental trip declarations made annually. As previously noted, for economic purposes it is unlikely that a vessel owner would incur the cost of a VMS unit solely to have an Incidental scallop permit. Therefore, assuming these vessels already have VMS reporting requirements for other fisheries, VMS declaration reporting requirements for activities other than Incidental scallop permit activity have already been accounted for in other PRA collections. The increased reporting burden resulting from the Incidental scallop permit category would be approximately 500 trip declarations and 500 power-down declarations. Assuming each trip declaration takes approximately 2 min, the annual Incidental scallop trip declaration time burden would be approximately 34 hr. At an hourly rate of $15, this burden would be $510.

VMS pre-landing notification forms would be required for each IFQ and NGOM scallop trip. Therefore, there would be 6,250 IFQ and 500 NGOM scallop vessel pre-landing notification forms submitted annually. NMFS estimates that it would take 5 min for each of the 6,750 reports, for an annual pre-landing notification time burden of 563 hr. At an hourly rate of $15, this burden would be $8,445.

The state waters exemption program enrollment form is estimated to take 5 min to submit through the VMS, the same amount of time as it has taken to enroll through interactive voice response system currently used. State waters exemption program trip declaration requirements are already accounted for in an approved collection under OMB Control No. 0648-0202. Therefore, this burden would not increase the cost to vessel owners declaring into the state waters exemption program.

IFQ transfers would apply to IFQ scallop vessels, except that current limited access scallop vessels that also have been issued an IFQ scallop permit would not be permitted to transfer IFQ. Using the Northeast Region's Northeast Multispecies DAS leasing program (OMB Control No. 0648-0475) as a proxy for the response rate for the IFQ transfer program, NMFS anticipates that there would be approximately 75 temporary transfers annually. Each application would include information from both parties involved in the temporary transfer; therefore there would be two responses per application. NMFS estimates that it would take 5 min per response, or 10 min per temporary IFQ transfer application. Therefore, the estimated burden would be 13 hr. At an hourly rate of $15 / hour, the total public cost burden for temporary IFQ transfer applications would be $195.

The Northeast Multispecies DAS Permanent Transfer Program cannot be easily correlated with the general category permanent transfer program because the Northeast Multispecies Program has a 20-percent conservation tax on all transfers, while there would be no conservation tax on scallop IFQ transfers. Although NMFS anticipates that there would be more IFQ transfers than DAS transfers, IFQ transfers would be restricted by the requirement that no IFQ vessel owner could have an ownership interest in more than 5 percent of the total TAC for IFQ scallop vessels, and no vessel could have more than 2 percent of the total TAC for IFQ scallop vessels at any time. NMFS anticipates that there would be approximately 10 permanent IFQ transfers per year. Each application would include information from both parties involved in the transfer; therefore there would be two responses per application. It is estimated that it would take 5 min per response, or 10 min per permanent transfer application. Therefore, the estimated permanent IFQ transfer burden would be 2 hr. At an hourly rate of $15 per hour, the total public cost burden for permanent quota transfer applications would be $30.

Since cost recovery for the scallop IFQ program is new, and there are no other current cost recovery programs in Northeast Region fisheries, the burden per response used by the Alaska Region's Alaska Individual Fishing Quota Cost-Recovery Program Requirements (OMB Control No. 0648-0398) was used as a proxy for the scallop IFQ program. Each IFQ permit holder would be required to submit a cost recovery payment once annually, which would take 2 hr per response. Therefore, 370 payments would take 740 hr. At an hourly rate of $15 / hour, the total public cost burden for cost recovery would be $11,100.

NMFS estimates that there could be up to nine sector proposals received over the next three years (2008-2009); five in the first year, two in the 2nd year, and two in the 3rd year. The earliest that the sectors proposed in the 2008 year could be implemented would be the 2009 fishing year. Therefore, these sectors would be required to submit operation plans for the 2010 fishing year.

Any person could submit a sector allocation proposal for a group of LAGC scallop vessels to the Council at least 1 year in advance of anticipated start of a sector program, and request that the sector be implemented through a framework procedure specified at § 648.55. Based upon consultations with the Northeast multispecies sector program, it is estimated it would take 150 hr to prepare and submit a sector proposal. Therefore, the 3-year average annualized time burden for sector proposals would be 450 hr per year. At an hourly rate of $15 per hour, the total public cost burden for sector proposals would be $6,750.

A sector is required to resubmit its operations plan to the Regional Administrator no later than December 1 of each year, whether or not the plan has changed. Based upon consultations with the Northeast multispecies sector program, each operations plan takes approximately 100 hr. The earliest sector operation plans would be submitted in 2010 for the proposals submitted in 2008. Therefore, NMFS estimates it would take 500 hr to submit 5 operation plans. The 3-year average annualized time burden would be 167 hr per year. At an hourly rate of $15 per hour, the annual time burden cost would be approximately $2,500.

In summary, the proposed limited access program could have negative economic impacts in the short-term on the estimated 373 vessels that would not qualify for a LAGC scallop permit, with adverse impacts compared to 2005 scallop revenue estimated to be less than 5 percent for 119 vessels, 5 to 49 percent for 58 vessels, and 50 percent or more for 196 vessels. The measures would also have negative impacts on about 153 out of 369 vessels that are estimated to qualify for the IFQ scallop permit, with adverse impacts compared to 2005 scallop revenue estimated to be less than 5 percent for 26 of these vessels, 5 to 50 percent for 70 vessels, and over 50 percent for 57 vessels. Altogether, the proposed measures could reduce total revenues of 381 vessels of more than 5 percent in the short-term. There are several measures in the proposed action, however, to help mitigate and reduce the potential negative impacts on these vessels, as discussed above. Qualifying vessels would be permitted to stack allocation up to 2 percent of the entire general category allocation and to transfer (i.e., lease or buy) IFQ on a permanent or temporary basis. This would enable vessel owners who do not receive an adequate amount of allocation to increase their scallop revenue to mitigate negative impacts. Furthermore, there is a provision to allow the formation of voluntary sectors. It may be beneficial for a group of vessels from a fishing community, for example, to organize and apply for a sector in the general category fishery. Negative impacts on some vessel owners may be mitigated if a vessel would qualify for a NGOM scallop permit that authorizes it to fish for scallops at a reduced level. In addition, many of the vessels that would not qualify for the IFQ scallop permit would qualify for an Incidental scallop permit that would authorize the vessel to land up to 40 lb (18.14 kg) of scallops per trip.

Continuation of the open access fishery under the no action alternative would not guarantee that the affected vessel owners would get more scallop revenue than they could with the proposed limited access program. With continued open access, there would always be the risk of more vessels entering the fishery, with the potential for overfishing of the scallop resource. Overfishing would likely cause a reduction in landings per unit effort, an increase in fishing costs per pound of scallops, and dissipation of the profits for all limited access and general category vessels.

There were also possible future negative effects on the existing limited access scallop vessels with the continuation of the open access program because the need to prevent an increase in overall fishing mortality would at some point reduce the DAS allocations for the limited access fleet to compensate for projected general category catcth. Assuming a scallop harvest of 50 million lb (22,680 mt), an increase in the share of general category landings to 20 percent of the total scallop landings would result in a decline of 17 percent to 21 percent of the net vessel share (as a proxy for profits) for the limited access vessels. Given that, in 2005, the general category landings increased to 14 percent of the total landings from about 5 percent in 2004, a further increase in general category effort could occur without a limited access program. Section 5.4.17.1 and Table 166 of the Amendment 11 document provide details about these impacts.

Because it would prevent further expansion of the general category fishery, the economic impacts of the proposed measures on the 351 existing limited access vessels would be positive both in the short and the long term. Reducing the general category catch from recent levels could increase the total DAS allocations for those vessels, resulting in approximately a 7-percent increase in their revenues compared to the status quo levels. Similarly, the general category limited access program would benefit the current limited access vessels that qualify for an IFQ permit, although the proposed 0.5-percent allocation of the total scallop TAC could lower their landings compared to recent levels (1.5 percent and 0.75 percent of overall scallop landings in 2005 and 2006, respectively).

The overall economic impacts of the limited entry in the medium to long term are expected to be positive for the sea scallop fishery as a whole, compared to taking no action. The proposed action would restrict the estimated number of participants in the general category fishery to 369 vessels that meet the IFQ permit qualification criteria. The allocation of a 5-percent TAC for the general category would cap the fishing mortality from this component of the fleet. The limited access program would also prevent the profits of the qualifiers and limited access vessels from dissipating due to an increase in fleet capacity that would likely occur with continued open access.

Two alternatives to the proposed landings qualification criteria were considered: Cumulative annual landings of 100 lb (45.4 kg); and 5,000 lb (2,268 kg). The 100-lb (45.4-kg) landing qualification criteria is estimated to qualify more vessels (548) for limited access and have a lower negative impact on the recent participants than the proposed alternative. On the other hand, by increasing the number of participants, this alternative would result in a lower share of general category TAC for each qualifier and would thus have a negative impact on individual vessels, especially on vessel onwers that have a high dependence on scallop revenue as a source of income. For example, the average allocation per vessel would decline from 5,429 lb (2,462 kg) to 3,650 lb (1,656 kg) per vessel if the poundage criterion was set at 100 lb (45.4 kg) instead of at 1,000 lb (454 kg) for a general category TAC of 2 million lb (907 mt). The alternative 5,000-lb (2,268-kg) landings qualification criterion is estimated to qualify only 188 vessels for limited access and, thus, would increase the share of each qualifier in general category TAC. As a result, average allocation per vessel would increase to 10,638 lb (4,825 kg) with a 2-million-lb (907-mt) general category TAC. Although this alternative would have positive economic impacts on the vessels that had a much higher historical dependence on scallops as a source of their income, it would deny eligibility to a much larger number of vessels that historically derived some revenue from scallop fishery. The proposed 1,000-lb (454-kg) alternative would deny eligibility to a large number of boats that have small landings of scallops (i.e., that landed between 100 and 999 lb (45.4 kg to 453 kg)), while qualifying vessels that depend on scallops to a larger degree.

Eligibility for limited access would require a vessel to have made the required amount of landings in any scallop fishing year during a specified time period. In addition to the proposed March 1, 2000, through November 1, 2004, qualification period, the Council considered two alternative qualification periods: March 1, 1994, through November 1, 2004; and March 1, 2003, through November 1, 2004. The economic impacts of qualification period, combined with the landing criteria, are analyzed in several sub-sections of Section 5.4 of the Amendment 11 document and summarized here. The impacts on the general category permit holders and vessels that qualify for limited access are analyzed in Section 5.4.3 of the Amendment 11 document. The impacts on revenues, fishing costs, average net revenues, crew and vessel shares are analyzed in Section 5.4.5 of the Amendment 11 document, for various levels of general category TAC. The impacts of the proposed 5-yr qualification period and other alternatives on recent participants in the general category fishery are analyzed in Section 5.4.6 of the Amendment 11 document.

The proposed 5-yr qualification period, combined with the 1,000-lb (454-kg) landings criteria, is expected to have positive economic impacts in the short and long term on vessel owners with vessels that qualify for limited access. It would provide access to those general category vessels that were active in the fishery in recent years, as well as to historical participants that were active from March 1, 2000, through November 1, 2004. The proposed 1000-lb (454-kg) poundage criteria and the 5-yr qualification period would qualify 369 vessels, but would deny eligibility to 90 vessels that meet the 1,000-lb (454-kg) criteria for their activity during 1994-1999 fishing years. The economic impacts on these historic participants would be negative in terms of a loss in future potential revenue from scallops, unless they buy a vessel that qualifies for limited access. The proposed 5-yr qualification period would not have any impact on the current income of most of these vessels, given that most have not been active since 2000; only 10 vessels are estimated to have participated in the fishery after the control date (November 1, 2004). The longer qualification period would cause the general category TAC to be divided among a larger number of vessels, most of which were not recently active in the fishery, and vessels that depend on scallops would receive a smaller share than they would with the proposed 5-yr qualification period. This would have negative economic impacts on the vessels that depend on scallops to a larger degree. There are also some measures included in the proposed action that could mitigate some of these adverse economic impacts on non-qualifiers. If these vessels had a permit before the control date, they could obtain an incidental catch permit and land up to 40 lb (18.14 kg) per trip, thus still earn some revenue from scallops. Other vessel owners could chose to obtain an NGOM scallop permit and participate in the NGOM fishery, subject to a possession limit of 200 lb (90.72 kg) per trip and a hard TAC.

The 2-yr qualification period alternative would have restricted eligibility to 277 general category vessels that landed 1,000 lb (454 kg) or more of scallops during the period March 1, 2003, through November 1, 2004, instead of 369 vessels under the proposed action. Although this alternative would result in a larger share per vessel qualified for limited access, it was found to be inequitable to participants who did not fish for scallops in 2003-2004, but did fish in recent years since 2000.

Under the proposed action, each IFQs vessel's contribution factor would be determined by identifying the year with the highest landings during the qualification time period, and multiplying it by an index that increases as the number of years in which the vessel landed scallops during the qualification time period increases. For example, the index is 0.75 if the vessel landed scallops in 1year, and 1.25 if the vessel landed scallops in 5 years. Therefore, the proposed action would allocate more pounds to those vessels that were active in the fishery for a longer period of time.

In addition to the proposed measure, the Council considered three alternatives to calculate the contribution factor. One alternative used the vessel's best year of landings during the qualification time period. Another alternative used the vessel's best year multiplied by a lower range of index factor than the proposed action. The third alternative used either the best year of landings during the qualification time period, or the indexed best year of landings during the qualification time period, but capped the contribution at 50,000 lb (22,680 kg) of scallops. The economic impacts of the contribution factor alternatives are analyzed in Section 5.4.7.1 through 5.4.7.2 of the Amendment 11 document.

The alternatives to the proposed option would have distributional economic impacts less favorable to the vessels that were active in the fishery for many years. The alternative that used a lower range of index values (0.9 to 1.10, rather than 0.75 to 1.25) would provide only a slight increase in IFQ share for vessels that were active in the fishery for a long period of time, while only slightly decreasing share for vessels that were in the general category scallop fishery for only 1 year. This would have had more negative impacts on a larger number of vessels that had a longer history in the general category scallop fishery. The alternative allocation based on best year (Section 3.1.2.3.1 of the Amendment 11 document) would have had negative economic impacts on those vessels that had a longer history of participation, since allocation would be determined regardless of years active. For the same reason, this alternative would have had positive economic impacts on those vessels that had a shorter history of participation. The final alternative, which would establish the 50,000-lb (22,680-kg) cap on a vessel's contribution factor, would prevent a vessel from getting a larger share of the fishery even if it had very high historical landings. This alternative would have impacted vessels with higher landings more severely than vessels with lower landings, and was therefore not selected. The proposed alternative using the best-year indexed by the number of years active is intended to help reduce the negative impacts on those participants with an established history and long-term investment in scallop fishing.

The Council considered several ways of allocating IFQ to vessels that qualify for a LAGC scallop permit (excluding NGOM and Incidental scallop vessels). These included: Allocations by vessel in pounds of scallops or number of trips per vessel; allocations to two allocation tiers where every vessel in a tier would receive the same allocation; allocation to three allocation tiers; a fleetwide hard TAC; and a fleetwide hard TAC allocated into either quarters or trimesters. The Council also considered a stand-alone IFQ alternative that would confer eligibility on IFQ vessels based only on past permit issuance, and would use the contribution factor alternative adopted by the Council to allocate a vessel's IFQ. The economic impacts of the allocation alternatives are analyzed in section 5.4.8 of the Amendment 11 document.

Under the proposed action, NMFS would calculate a vessel's IFQ by multiplying the overall general category TAC by the vessel's contribution factor. An example demonstrating the calculation of a vessel's IFQ is provided in the “IFQs for limited access general category scallop vessels” section of the preamble of this proposed rule.

The allocation of IFQ would eliminate the derby fishing effect that results from a TAC because an IFQ assures that each vessel can land a given quantity anytime during the fishing year. Vessel owners would have the flexibility to select the time and the area to fish in order to minimize their costs and/or maximize their revenues. Since the fishing effort would be spread over a longer period of time, the price of scallops would be more stable throughout the season. This, combined with the availability of a fresh and/or higher quality scallops over a longer season, would benefit consumers as well as producers. Therefore, the proposed allocation alternative would have positive economic impacts on the vessels that qualify for limited access general category fishery. Although maintaining the 400-lb (181.44-kg) possession limit would cause some inefficiencies and result in higher costs compared to a higher possession limit (alternative 2,000 lb (907 kg) per trip), this provision is intended to help preserve the historical small-boat character of this fleet.

The non-selected alternative that would have allocated a number of trips to each scallop vessel has an advantage over the IFQ alternative because it is easier to monitor and enforce, but could result in either reduced revenue or increased costs for vessels that catch less than 400 lb (181.44 kg) of scallops on any trip, because the trip would have been considered to be used irrespective of amount landed. Another non-selected alternative would have established two permit tiers to which vessels would be assigned based on the level of historical scallop landings. Vessels that had historical landings of less than 5,000 lb (2,268 kg) would have a possession limit of 200 lb (90.72 kg), while vessels that had historical landings greater than 5,000 lb (2,268 kg) would have a scallop possession limit of 400 lb (181.44 kg) per trip. The alternative did not restrict the number of trips that could be taken or pounds that could be landed by vessels within a tier. This alternative would have negative economic impacts on vessels that landed less than 5,000 lb (2,268 kg) and would be restricted to a 200-lb (90.72-kg) possession limit because it would reduce landings from recent historical levels. The three-tiered allocation alternative would allocate equal pounds or trips to each vessel within one of three tiers based on the vessel's historical level of landings, with the pounds or trips allocated to each tier based on the average amount of scallops landed by vessels in each tier. As a result, this alternative would have negative impacts on a vessel in a tier that landed a higher amount of scallops than the average for the tier. The stand-alone alternative would allocate IFQ to a larger number of vessels, but would have negative distributional impacts on vessels that have had higher recent annual landings of scallops. Instead of individual allocation, the alternative that would establish a hard TAC with limited entry vessel permits could lead to a race to fish and market gluts. This could have negative economic impacts, especially on smaller vessels that fish seasonally and cannot access all areas due to the constraints on their capacity. A fleet-wide hard TAC allocated by trimester or by quarter would extend the fishing season and reduce negative impacts from derby fishing and market gluts, to some extent. These alternatives would have larger negative distributional impacts on some vessels compared to the proposed IFQ program, and other vessel allocation alternatives considered, because the opportunity to fish and land scallops would be dependent upon the level of fishing by other vessels. For example, a vessel may not get the opportunity to fish for scallops at all under a quarterly fleetwide TAC alternative if other general category vessels quickly harvest the entire TAC. If such a vessel had landings of scallops before Amendment 11, the vessel would experience scallop revenue losses compared to alternatives that would allow the vessel to fish for scallops regardless of the scallop fishing activity of other vessels.

Amendment 11 includes most of the provisions adopted in other limited access fisheries in the Northeast Region to govern the initial qualification process, future ownership changes, and vessel replacements. For the most part, there is no direct economic impact. The nature of a limited access program requires rules for governing the transfer of limited access fishing permits. The procedures have been relatively standard for previous limited access programs, which makes it easier for a vessel owner issued permits for several limited access fisheries to undertake vessel transactions. The standard provisions adopted in Amendment 11 are those governing change in ownership; replacement vessels; CPH; abandonment or voluntary relinquishment of permits; and appeal of denial of permits. In addition, IFQ scallop vessels would be restricted to a cap on the amount of IFQ they could own. This ownership cap restriction is based on a similar ownership cap provision for current limited access vessels. This action would modify some of the other provisions for LAGC scallop vessels. LAGC scallop vessels would not have any vessel size and horsepower upgrade restrictions for vessel modifications or vessel replacements (unless the vessel has other limited access permits). This action would also allow a vessel owner to retain a general category scallop fishing history prior to the implementation of Amendment 11 to be eligible for issuance of the LAGC scallop permit based on the eligibility of the vessel that was sold, even if the vessel was sold with other limited access permits.

The economic impacts of the limited access permit provisions are analyzed in section 5.4.9 of the Amendment 11 document. Measures allowing vessel owners to appeal limited access permit denials would indirectly benefit all participants by ensuring that only those vessels that provide verification of permit and landings history would qualify and receive allocation based on accurate records. The proposed regulations regarding qualification with retained vessel histories would have positive economic impacts for participants that sold their vessel to another but retained the fishing history. The proposed action would allow a vessel owner to modify a LAGC scallop vessel's size or horsepower without any upgrade restriction, provided that there are no other limited access permits issued to the vessel. This would provide flexibility for the vessel owners to adjust their fishing power under changing fishery conditions. Flexibility with a vessel's size and horsepower could also improve safety at sea. Since the vessels would be allocated individual pounds, this is not expected to impact the total scallop landings or provide an unfair advantage to larger vessels.

Amendment 11 would allow a vessel owner to obtain permanent or temporary transfers of IFQ, up to 2 percent of the total general category allocation per vessel. This would help vessel owners to maintain an economically viable operation if the allocations for separate vessels are too low to generate revenue to cover variable and fixed expenses. It could also allow a vessel owner to sell or lease a small IFQ to another vessel owner, which would generate income from the IFQ without operating costs. This measure, combined with a restriction that an individual could not have an ownership interest in more than 5 percent of the overall TAC, would also prevent a few individuals or corporations from dominating the fishery and would help to redistribute gains from the limited access more equitably among more fishermen. Non-preferred alternatives considered other ways to limit the accumulation of IFQ. One would have allowed two allocations only to be combined, and the other set a cap of 60,000 lb (27,216 kg) total allocation. The selected alternative provided more flexibility while maintaining an overall limit on the amount of IFQ that could be held by a single vessel.

Non-preferred alternatives would have prohibited IFQ transfers, would have maintained vessel size and horsepower upgrade restrictions consistent with other limited access permits (allowed upgrades up to 10 percent in length, and gross and net tonnage, and 20 percent in horsepower), and would have prohibited IFQ transfers, providing less flexibility for vessel owners and reduced economic benefits.

Amendment 11 proposes to allow participants in the IFQ scallop fishery to organize voluntary fishing sectors. Amendment 11 specifies sector requirements and the process through which proposals would be submitted to the Council and NMFS. Amendment 11 does not establish sectors—just the process under which future sectors could be proposed. The proposed sector process would provide an opportunity for fishermen to benefit from an economically viable operation when the allocations of individual vessels are too small to make scallop fishing profitable. In comparison, the only alternative to the proposed action would not allow the formation of sectors, decreasing flexibility and eliminating any possible future economic benefits of forming sectors.

Amendment 11 specifies measures that would be implemented for at least 1 year, while the eligibility process for IFQ scallop permits is underway to establish the fleet of IFQ scallop vessels. The economic impacts of the transition period alternatives are analyzed in section 5.4.12 of the Amendment 11 document. The proposed interim alternative would establish the following measures. These would help to prevent a short-term increase in overfishing of the scallop resource by limiting the general category landings to 10 percent of the total scallop landings through specification of a TAC. The proposed action would prevent further expansion in the general category catch and benefit the participants of the general category fishery by providing some adjustment time for general category vessels until the transition period is over. The allocation amounts for many IFQ scallop vessels are likely to be lower with the proposed 5-percent TAC for the IFQ fishery than their recent landings. Although management of the general category fishery by a fleetwide TAC during the transition period would create some derby fishing, the allocation of the total TAC into quarters would reduce derby effects to some extent, and lessen the negative economic impacts associated with derby fishing. A 10-percent fleetwide TAC may not constitute a significant constraint on recent landings, given that only those vessels that qualify for an IFQ permit, or that are under appeal for an IFQ permit, would be authorized to fish during the transition period. General category scallop landings by those vessels that had a permit before the control date were approximately 11 percent of total landings in 2005.

An alternative was considered that would have established an annual fleetwide TAC. It was not selected because the Council believed it would increase the derby effect, with potential negative economic and safety implications. It would increase the likelihood that a vessel would not have the opportunity to fish for scallops because other vessels could rapidly harvest the TAC. Another alternative proposed that the transition year would have no TAC. It would eliminate the incentives for derby style fishing and the economic impacts of this alternative compared to the status quo would be negligible, provided participation by general category vessels that had a permit before the control date does not increase significantly above the recent levels. On the other hand, it is possible for the number of appeals to be greater than the number of vessels that fished during the recent years, resulting in more vessels participating in the fishery. If this were to happen, and the general category scallop landings increase above 10 percent of total scallop harvest, there could be short-term unexpected increase in fishing mortality on the scallop resource.

Amendment 11 includes management measures specific to the NGOM scallop management area intended to allow a level of scallop fishing activity to occur outside of the constraints of the IFQ program and some other Amendment 11 provisions for general category vessels. Measures include the establishment of a TAC for the area derived from the Federal portion of the resource; a 200-lb (90.72-kg) possession limit for NGOM and IFQ scallop vessels; a restriction on dredge size; a restriction that catch by IFQ scallop vessels fishing in the area would be deducted from the IFQ scallop vessel's IFQ and from the NGOM TAC; trip declaration requirments; and a closure of the NGOM to all scallop vessels (including current limited access scallop vessels and Incidental scallop vessels) when the NGOM TAC is reached. The economic impacts of the NGOM Scallop Managemetn Area are analyzed in section 5.4.14.4 of the Amendment 11 document. The proposed NGOM Scallop Management Area alternative would have positive economic impacts on a large number of vessels that are not estimated to qualify for the IFQ permit but are estimated to qualify for an NGOM permit. These vessels would have an opportunity to land scallops in this area when the resource conditions are favorable. It would reduce the possession limit for NGOM and IFQ scallop vessels to 200 lb (90.72 kg) per trip to reduce incentives for larger vessels targeting scallops in this area. Although reducing the possession limit would have negative economic impacts on some vessels, the majority of the active vessels that would qualify for the NGOM permit general category permit landed 200 lb (90.72 kg) or less of scallops from any one trip, therefore would not be negatively impacted from 200 lb (90.72 kg) possession limit. In comparison, the no action alternative would have had negative economic impacts for vessels that could not qualify for the IFQ scallop permit.

Under one alternative, Amendment 11 provisions would not have applied to NGOM and the general category vessels would have retained the opportunity to fish for scallops in NGOM and land up to 400 lb (181.44 kg) per trip. The lack of a TAC to limit landings, and the higher possession limit, would have had positive economic impacts on these vessels compared to the proposed alternative. On the other hand, because this alternative would let any vessel obtain a permit to fish in the area, it could lead to an influx of vessels from other areas to participate in the open access fishery in the NGOM. This would have negative impacts on the resource that made it unacceptable.

Another alternative proposed that to qualify for an NGOM scallop permit, a vessel would have to have landed 100 lb (45.4 kg) of scallops during the period March 1, 1994, through November 1, 2004. The NGOM TAC under this alternative would be based on all landings of scallops from the NGOM area (not exclusively the Federal portion of the resource, as in the proposed action). This alternative also would have allowed vessels to continue fishing for up to 40 lb (18.14 kg) of scallops after harvest of the NGOM TAC. This alternative would also provide an advantage to IFQ scallop vessels by allowing them to land 400 lb (181.44 kg) per trip from this area, whereas NGOM scallop vessels could possess and land only up to 200 lb (90.72 kg) per trip. This alternative was not adopted because the qualification criteria would have had very little restriction on participation, would have had excessive administrative costs, and would not promote conservation of the scallop resource within the Gulf of Maine or overall. While it would have qualified more vessels than the proposed measure, the economic opportunity for those vessels would have been diluted by a very large number of qualified vessels fishing for a relatively small TAC.

The no action alternative for the NGOM Scallop Management Area would not distinguish this area from other areas, and all Amendment 11 measures would apply equally throughout the range of the scallop resource. It was not selected because it would have negative impacts on vessels that traditionally fish in the NGOM and that could not qualify for the IFQ permit.

The economic impacts of monitoring provisions proposed in Amendment 11 are analyzed in section 5.4.15 of the Amendment 11 document. Since general category vessels that land over 40 lb (18.14 kg) are already required to have a VMS onboard, the compliance costs of this action are not expected to be significant. Vessels operating in the Northeast multispecies fishery are also required to have operational VMS units. Some of these vessel also have general category scallop permits and would be expected to qualify for one of the LAGC scallop permits. The majority of general category scallop vessels currently operate VMS as required either by the scallop regulations or the Northeast multispecies fishery regulations. The non-selected interactive voice reporting (IVR) alternative does not have a distinct advantage compared to reporting through VMS. The no action alternative would not have the associated costs of reporting landings, but reporting of scallop catch for each trip is essential to monitor and enforce the IFQ and NGOM scallop fishery measures.

Amendment 11 provides the opportunity for current limited access vessels (i.e., full-time, part-time, or occasional limited access scallop vessels) to also be issued a LAGC scallop permit, if the vessel meets the qualification criteria. The economic impacts of allowing limited access vessels to continue to fish under general category rules are analyzed in section 5.4.16.1 of the Amendment 11 document. The proposed action would have positive economic impacts on 57 limited access vessels (38 full-time, and 19 part-time and occasional) that Amendment 11 estimates would qualify for an IFQ scallop permit. One non-selected alternative would prevent any limited access vessel from having a general category permit and another would prevent current full-time limited access scallop vessels from fishing under general category rules. This would result in negative economic impacts compared to the proposed alternative for those vessels noted above that have a historical level of participation in the general category fishery while fishing outside of scallop DAS.

Under the proposed allocation to LAGC scallop vessels, 0.5 percent of the overall scallop TAC would be allocated to vessels with IFQ scallop permits that also have been issued a full-time, part- time, or occasional limited access scallop permit. IFQs for these vessels would be determined from the 0.5-percent TAC allocation. Under the transition measure before the IFQ program is implemented, IFQ scallop vessels that have also been issued a full-time, part-time, or occasional limited access scallop permit would fish under the 10-percent TAC allocated to the general category fleet. The proposed action would have positive economic impacts on those vessels. The 0.5-percent TAC for the limited access qualifiers is less than the percentage share of these vessels in total general category scallop landings in recent years, but almost equal to what was reported in the 2004 fishing year. Under one alternative, scallops landed by limited access vessels under general category rules would be deducted from the 5-percent TAC allocated to the IFQ vessels, negatively impacting the general category vessels that qualify for limited access, with small positive economic impacts on the limited access scallop fleet. This alternative was therefore not selected, and the separate 0.5-percent TAC is proposed.

The Council considered alternative values for the TAC that would be allocated to IFQ scallop vessels (excluding IFQ scallop vessels also issued a full-time, part-time, or occasional limited access scallop permit), equal to 2.5, 5.0, 7.0, 10.0, and 11.0 percent of the overall projected scallop catch. The economic impacts of the various levels of TAC allocation between the limited access and LAGC fishery are analyzed in section 5.4.17 of the Amendment 11 document and have different distributional impacts. The proposed 5-percent general category TAC would have negative economic impacts on many general category vessels compared to status quo management because the fishery landed twice that level in both the 2005 and 2006 fishing years. On the other hand, the 5-percent TAC is higher than the long-term average percentage share of total scallop landings for the general category scallop fishery, which is 2.5 percent of overall scallop landings. The 5-percent allocation corresponds to the highest level reached by the general category fishery before the control date. Therefore, this allocation is consistent with the Council's decision in 2004 to implement a control date recognizing that that the substantial increase in general category fishing effort could lead to overfishing of the scallop resource and reduce economic benefits for everyone. The short-term and long-term economic impacts of the 5-percent TAC, combined with the limited entry program, compared to other alternative allocation amounts are discussed extensively above and are not repeated here.

The proposed action includes several measures that could mitigate some of the adverse economic impacts of the limited access program for general category including the 5-percent TAC. The separate limited entry program for the NGOM is expected to provide an opportunity for owners of vessels that would not qualify for the IFQ scallop permit, but who have historically participated in the NGOM scallop fishery, to fish for scallops at a reduced scale (at a lower possession limit of 200 lb (90.72 kg) per trip) when the resource conditions in this area become favorable. The incidental catch permit would provide opportunity for the vessels that land scallops occasionally up to 40 lb (18.14 kg) per trip, including some vessels that qualify for limited access but received allocations lower than what they could land annually with the incidental permit. Furthermore, Amendment 11 includes a provision to allow vessel owners to combine IFQ allocations through the IFQ transfer program, up to 2 percent of the TAC allocated to the IFQ scallop fishery, so that vessel owners can buy or lease additional IFQ. Similarly, the proposed action to establish a process for sectors in the general category fishery would provide an opportunity for fishermen to benefit from an economically viable operation when the allocations of individual vessels are too small to make scallop fishing profitable.

A lower TAC for general category would have larger negative proportional impacts on general category vessels while potentially increasing the revenues of the limited access fishery by a small percentage. A higher percentage TAC would reduce the negative impacts on general category vessels, but would lower the positive economic impacts on the current limited access.

The economic impacts of the proposed Incidental catch permit are analyzed in section 5.4.18 of the Amendment 11 document. The proposed action would create an incidental catch permit for vessels to retain and sell up to 40 lb (18.14 kg) of scallop meats per trip, provided they had been issued a general category scallop permit as of November 1, 2004. The economic impacts of this alternative would be positive on vessels that do not qualify for the IFQ permit because it would allow them to still earn some income from scallops under the incidental catch permit. This measure could also benefit some vessels that qualify for the IFQ permit with low allocations. The owner of such a vessel might elect the Incidental scallop permit because the vessel could land more total pounds of scallops on several 40-lb (18.14-kg) trips than it could under its IFQ.

The only alternative considered was no action, which would allow vessels to possess and land, but not sell, an incidental catch of scallops. This alternative would not provide any source of revenue for vessels that do not qualify for the IFQ or NGOM scallop permit. It also would complicate the Council's and NMFS's ability to determine the overall level of scallop catch from a fleet of vessels without scallop permits because none of the reporting and compliance measures would apply to non-permitted vessels. This could result in more cautious management measures in the future, with possible negative economic impacts on all vessels issued scallop permits.

Amendment 11 proposes to change the permit issuance date for general category scallop permits from May 1 to March 1, to better align the general category scallop fishery with the scallop fishing year of March 1 through February 28/29. The economic impacts of changing the date that general category permits are issued are analyzed in section 5.4.19 of the Amendment 11 document. Changing the general category permit to March 1 is an administrative change and procedural adjustment for owners accustomed to a May 1 permit renewal. The proposed measure would allow, however, better estimation of the number of participants, the level of effort in the fishery and allocation of TAC by aligning the issuance date with date for the limited access fishery. As a result, the proposed action would have indirect positive economic impacts on the sea scallop fishery.

The Council considered revising the start of the fishing year to May 1 or August 1. This would have had some positive impacts over the long term by better aligning the fishing year with the scallop survey, resulting in updated information on which to base the following year's management. This would increase the confidence in the effectiveness of scallop fishery management measures relative to the scallop fishing mortality goals of the FMP. On the other hand, these alternatives were strongly opposed by the scallop industry because it would require a change in the business plans of the scallop vessel owners.

Amendment 11 proposes two changes to scallop regulations, including a clarification that the maximum sweep length for trawl gear under the FMP would not apply to vessels fishing for Northeast multispecies or monkfish, and an allowance for general category vessels to possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line. The economic impacts of these measures are analyzed in sections 5.4.20 and 5.4.21 of the Amendment 11 document. Clarification of trawl gear restriction for vessels fishing under a multispecies or monkfish DAS would have positive economic impacts on those general category vessels that catch scallops only incidentally, compared to no action. Setting the possession limit at 100 bu (35.24 hL) seaward of the demarcation line would have positive economic impacts on the general category vessels when they catch scallops with lower meat yield. The only alternative to both of these measures is the no action alternative, which does not provide the benefits of the proposed action noted above.

This proposed rule includes a change to the ownership cap restriction for current limited access scallop vessels to clarify that the regulation was intended to apply to limited access scallop permits and CPHs. Currently, if a vessel owner has been issued a CPH, that owner cannot activate that CPH on a vessel if they already own 5 percent of the limited access scallop permits. That owner would therefore have to sell a vessel to activate the CPH. This clarification of the ownership cap to include CPH's does not change this, or the economic impacts of the ownership cap restrictions. There are no alternatives to clarifying the regulation, since the result would be that the scallop regulations would continue to be inconsistent with the intent of the original ownership cap restrictions included in the FMP.

Fisheries, Fishing, Recordkeeping and reporting requirements.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

1. The authority citation for part 648 continues to read as follows:

2. In § 648.2, definitions for “limited access general category (LAGC) scallop vessel” and “limited access scallop vessel” are added in alphabetical order to read as follows:

3. In § 648.4, paragraphs (a)(1)(i)(I)( 3 ), (a)(2) introductory text, (a)(2)(i) introductory text, (a)(2)(i)(M)( 1 ), (a)(2)(i)(M)( 2 ), (a)(2)(ii), and (e)(1)(iv) are revised, and paragraph (a)(2)(i)(P) is added to read as follows:

4. In § 648.5, paragraph (a) is revised as follows:

5. In § 648.9, paragraphs (c)(1)(iii) and (c)(2)(i)(D) are revised to read as follows:

6. In § 648.10, paragraphs (b)(1)(i); and (b)(2)(i) and (ii), and (c) introductory text are revised; paragraphs (b)(1)(iii) and (iv) are removed and reserved; and paragraphs (b)(4)(i) through (iv) are added as follows:

7. In § 648.14, paragraphs (a)(56), (a)(57), (a)(61), (f), (h)(1), (h)(6), (h)(9), (h)(19), (h)(27), (i), and (s) are revised, and paragraphs (a)(180) and (h)(28) are added to read as follows:

8. In § 648.51, paragraphs (a)(1) and (a)(2)(i) are revised to read as follows:

9. Section 648.52 is revised to read as follows:

10. Section 648.53 is revised to read as follows:

11. In § 648.54, paragraphs (b), (c)(3) and (f) are revised to read as follows:

12. In § 648.55, paragraphs (a) and (e) are revised to read as follows:

14. In § 648.59, paragraphs (b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and (e)(6)(ii) are revised to read as follows:

15. In § 648.60, paragraph (a) introductory text, paragraphs (g)(1) and (2), and paragraph (g)(3) introductory text are revised to read as follows:

16. Section 648.62 is added to read as follows:

17. Section 648.63 is added to read as follows: