Executive Order 12866

This proposed rule has been determined to be not significant for purposes of Executive Order 12866; and, therefore has not been reviewed by the Office of Management and Budget (OMB).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities and has determined that its implementation will not have a significant economic impact on a substantial number of small businesses.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. There are an estimated 25,000 cotton growers in the U.S. who voluntarily use the AMS cotton classing services annually, and the majority of these cotton growers are small businesses under the criteria established by the Small Business Administration (13 CFR 121.201). Continuing the user fee at the 2009 crop level as stated will not significantly affect small businesses as defined in the RFA because:

(1) The fee represents a very small portion of the cost-per-unit currently borne by those entities utilizing the services. (The 2009 user fee for classification services was $2.20 per bale; the fee for the 2010 crop would be maintained at $2.20 per bale; the 2010 crop is estimated at 14,500,000 bales);

(2) The fee for services will not affect competition in the marketplace;

(3) The use of classification services is voluntary. For the 2009 crop, 12,400,000 bales were produced; and, almost all of these bales were voluntarily submitted by growers for the classification service; and

(4) Based on the average price paid to growers for cotton from the 2008 crop of 0.5520 cents per pound, 500 pound bales of cotton are worth an average of $276 each. The proposed user fee for classification services, $2.20 per bale, is less than one percent of the value of an average bale of cotton.

In compliance with OMB regulations (5 CFR part 1320), which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501), the information collection requirements contained in the provisions to be amended by this proposed rule have been previously approved by OMB and were assigned OMB control number 0581-AC43.

This proposed rule would maintain the user fee charged to producers for cotton classification at $2.20 per bale for the 2010 cotton crop. The 2009 user fee charged to was calculated using new methodology, as was required by section 14201 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234) (2008 Farm Bill). Prior to the change in the 2008 Farm Bill, the fee was determined using a user-fee formula mandated in the Uniform Cotton Classing Fees Act of 1987, as amended (Pub. L. 100-108, 728) (1987 Act). This formula used the previous year's base fee that was adjusted for inflation and economies of size (1 percent decrease/increase for every 100,000 bales above/below 12.5 million bales with maximum adjustment being ±15 percent). The user fee was then further adjusted to comply with operating reserve constraints (between 10 and 25 percent of projected operating costs) specified by the 1987 Act.

Section 14201 of the 2008 Farm Bill provides that: (1) The Secretary shall make available cotton classification services to producers of cotton, and provide for the collection of classification fees from participating producers or agents that voluntarily agree to collect and remit the fees on behalf of the producers; (2) classification fees collected and the proceeds from the sales of samples submitted for classification shall, to the extent practicable, be used to pay the cost of the services provided, including administrative and supervisory costs; (3) the Secretary shall announce a uniform classification fee and any applicable surcharge for classification services not later than June 1 of the year in which the fee applies; and (4) in establishing the amount of fees under this section, the Secretary shall consult with representatives of the United States cotton industry. At pages 313-314, the Joint Explanatory Statement of the committee of conference for section 14201 stated the expectation that the cotton classification fee would be established in the same manner as was applied during the 1992 through 2007 fiscal years. The classification fee should continue to be a basic, uniform fee per bale fee as determined necessary to maintain cost-effective cotton classification service. Further, in consulting with the cotton industry, the Secretary should demonstrate the level of fees necessary to maintain effective cotton classification services and provide the Department of Agriculture with an adequate operating reserve, while also working to limit adjustments in the year-to-year fee.

Under the provisions of section 14201, a user fee (dollar per bale classed) is proposed for the 2010 cotton crop that, when combined with other sources of revenue, will result in projected revenues sufficient to reasonably cover budgeted costs—adjusted for inflation—and allow for adequate operating reserves to be maintained. Costs considered in this method include salaries, costs of equipment and supplies, and other overhead costs, such as facility costs and costs for administration and supervision. In addition to covering expected costs, the user fee is set such that projected revenues will generate an operating reserve adequate to effectively manage uncertainties related to crop size and cash-flow timing while meeting minimum reserve requirements set by the Agricultural Marketing Service, which require maintenance of a reserve fund amount equal to four months of projected operating costs.

Extensive consultations regarding the establishment of the classification fee with U.S. cotton industry representatives were held during the period from September 2009 through January 2010 during numerous publicly held meetings. Representatives of all segments of the cotton industry, including producers, ginners, bale storage facility operators, merchants, cooperatives, and textile manufacturers were addressed in various industry-sponsored forums.

The user fee proposed to be charged cotton producers for cotton classification in 2010 is $2.20 per bale which is the same fee charged for the 2009 crop. This fee is based on the pre-season projection that 14.5 million bales will be classed by the United States Department of Agriculture during the 2010 crop year.

Accordingly, § 28.909, paragraph (b) would reflect the continuation of the cotton classification fee at $2.20 per bale.

As provided for in the 1987 Act, a 5 cent per bale discount would continue to be applied to voluntary centralized billing and collecting agents as specified in § 28.909(c).

Growers or their designated agents receiving classification data would continue to incur no additional fees if classification data is requested only once. The fee for each additional retrieval of classification data in § 28.910 would remain at 5 cents per bale. The fee in § 28.910(b) for an owner receiving classification data from the National database would remain at 5 cents per bale, and the minimum charge of $5.00 for services provided per monthly billing period would remain the same. The provisions of § 28.910(c) concerning the fee for new classification memoranda issued from the National Database for the business convenience of an owner without reclassification of the cotton will remain the same at 15 cents per bale or a minimum of $5.00 per sheet.

The fee for review classification in § 28.911 would be maintained at $2.20 per bale.

The fee for returning samples after classification in § 28.911 would remain at 50 cents per sample.

A 15-day comment period is provided for public comments. This period is appropriate because it is anticipated that the proposed fees, if adopted, would be made effective for the 2010 cotton crop on July 1, 2010.

For the reasons set forth in the preamble, 7 CFR part 28 is proposed to be amended to read as follows:

I. Public Comment Procedures

Your written comments on this proposed rule should be specific, confined to issues pertinent to the proposed rule, and should explain your reasons for any change recommended. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. Comments received after the close of the comment period ( see DATES ) will not be considered or included in the Administrative Record for the final rule.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc. ) make it more or less clear?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?

(5) Is the description of the rule in the preamble section entitled “Background and Discussion of the Proposed Rule” helpful in understanding the rule? How could this description be more helpful?

This proposed rule has been determined to be significant and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This action is needed to ensure that regulations are consistent between FDPIR and SNAP. FDPIR was established by Congress in 1977 as an alternative to the Food Stamp Program for low-income households living on Indian reservations and households near reservations or in Oklahoma that contain at least one person who is a member of a Federally-recognized Tribe that does not have easy access to Food Stamp offices and authorized grocery stores. The name of the Food Stamp Program was changed to the Supplemental Nutrition Assistance Program pursuant to the Food, Conservation and Energy Act of 2008, Public Law 110-246 (Farm Bill). To avoid confusion, hereinafter, the terms Food Stamp Act and Food Stamp Program will not be used.

FDPIR has similar eligibility criteria to SNAP, although certain administrative requirements have been simplified and streamlined under FDPIR. The proposed rulemaking will update FDPIR regulations to be consistent with recent changes to SNAP in accordance with Sections 4101, 4103, and 4104 of the Farm Bill. Section 4101 permanently excludes combat pay ( i.e., additional pay earned as a result of deployment to or service in a combat zone) as income for the purposes of determining SNAP eligibility. Section 4103 eliminates the maximum dollar limit to the dependent care deduction allowed under SNAP, and Section 4104 excludes from resources any household funds held in qualified retirement or education savings accounts when determining eligibility for SNAP. Section 4104 also excludes future qualified retirement accounts should they be created, and provides the Secretary with discretion to allow resource exclusions for other retirement plans and education savings accounts. This proposed rulemaking will also provide clarification that FDPIR regulations regarding income eligibility are referring to the SNAP net income guidelines, rather than the gross.

This rule would amend FDPIR regulations by aligning provisions with recent changes to SNAP as a result of the Farm Bill. These regulatory changes are designed to help ensure that FDPIR benefits are provided to low-income households living on Indian reservations and households near reservations or in Oklahoma that contain at least one person who is a member of a Federally-recognized Tribe that are in need of nutrition assistance. Because FDPIR regulations regarding resource limits and income exclusions would be altered by this rule, participation could potentially increase, thus expanding access to the program and increasing benefits to the targeted population.

FNS has projected the impact of the proposed changes on FDPIR participation. The combined effect of the provisions in this proposed rule will potentially make a small number of households become newly eligible, primarily those households with sizeable dependent care expenses and/or funds in qualified education savings accounts. However, individual households might benefit from more than one provision and the effect of the overlap could not be determined. Therefore, we are unable to determine with any certainty the total number of individuals that might be added as a result of this rule.

This action is not expected to significantly increase costs of State and local agencies, or their commercial contractors. The combined impact of the proposed changes in this rulemaking is projected to increase Federal program costs by $1,000 in fiscal year (FY) 2010 and $7,000 over a five-year period (FY 2010 through FY 2014). These increased costs are attributable to potential increases in participation, primarily among those households that have funds in qualified education savings accounts.

This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). It has been certified that this action will not have a significant impact on a substantial number of small entities. While Indian Tribal Organizations (ITOs) and State Agencies that administer FDPIR will be affected by this rulemaking, the economic effect will not be significant.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and Tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA.

The program addressed in this action is listed in the Catalog of Federal Domestic Assistance under 10.567. For the reasons set forth in the final rule in 7 CFR Part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), the donation of foods in such programs is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.

The programs affected by the regulatory proposals in this rule are all Tribal or State-administered, Federally-funded programs. The FNS National Office and Regional Offices have formal and informal discussions with State officials on an ongoing basis regarding program issues relating to the distribution of donated foods. FNS meets annually with the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), a national group of Tribal and State agencies, to discuss issues relating to food distribution.

This rule is intended to provide consistency between FDPIR and SNAP. The rule was prompted by provisions contained in the Farm Bill, enacted on June 18, 2008. Section 4101 of the Farm Bill permanently excludes combat pay ( i.e., additional pay earned as a result of deployment to or service in a combat zone) from income when determining eligibility for SNAP. Section 4103 removes the maximum limit on the dependent care deduction and Section 4104 excludes from resources any household funds held in qualified tuition program or retirement accounts when determining eligibility for SNAP.

FNS has considered the impact of the proposed rule on ITOs and State agencies. The overall effect is to ensure that nutrition assistance is provided to low-income households. During the prior consultation period in advance of this rulemaking, FNS was not made aware of any adverse concerns by ITOs or State Agencies.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule, when finalized, is intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full implementation. This proposed rule would not have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.

FNS has reviewed this rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that this rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods in food distribution programs on the basis of an individual's or group's race, color, national origin, sex, age, or disability. FNS found no factors that would negatively and disproportionately affect any group of individuals.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This proposed rule does not contain any new information collection requirements that are subject to review and approval by OMB.

FNS is committed to compliance with the E-Government Act of 2002 to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The proposed rule would amend the regulations for FDPIR at 7 CFR 253.6 to be consistent with SNAP relative to the requirements set forth in the Farm Bill. FDPIR was established by Congress in 1977 as an alternative to SNAP for low-income households living on Indian reservations and households near reservations or in Oklahoma that contain at least one person who is a member of a Federally-recognized Tribe that does not have easy access to SNAP offices and authorized grocery stores. Consequently, FDPIR has similar eligibility criteria to SNAP, although certain administrative requirements have been simplified and streamlined under FDPIR. The changes would improve program service by: (1) Excluding household funds held in education savings accounts specified in Section 4104 of the Farm Bill and any other education accounts for which a resource exclusion is provided under SNAP; (2) clarifying that the current FDPIR resource exclusion for retirement accounts is limited to qualified retirement accounts specified in Section 4104 of the Farm Bill and any other retirement accounts for which a resource exclusion is provided under SNAP; (3) clarifying that the FDPIR regulations regarding income eligibility are referring to the SNAP net monthly income standard, rather than the SNAP gross monthly income standard; (4) permanently excluding combat pay from income when determining eligibility for FDPIR; and (5) eliminating the maximum limit to the dependent care deduction.

The proposed amendments would also impact the operation of the Food Distribution Program for Indian Households in Oklahoma (FDPIHO), 7 CFR Part 254, under which the eligibility and certification provisions of 7 CFR Part 253 are adopted by reference at 7 CFR 254.5(a). The term “FDPIR,” as used in this proposed rule, refers collectively to FDPIR and FDPIHO. The proposed amendments are discussed in more detail below.

This proposed rule would amend FDPIR regulations at 7 CFR 253.6(d)(2) to ensure consistent treatment of certain resources in determining FDPIR and SNAP eligibility. In accordance with Section 4104 of the Farm Bill, which amended Section 5(g) of the Food and Nutrition Act 2008 (7 U.S.C. 2014(g)), funds that are held in qualified tuition program accounts described in section 529 of the Internal Revenue Code of 1986 or in a Coverdell education savings account under section 530 of that Code are excluded from the calculation of household resources when determining eligibility for SNAP. This rule proposes to amend 7 CFR 253.6(d)(2) to exclude any funds held in these accounts from being considered FDPIR resources.

Section 4104 of the Farm Bill also provides the Secretary with discretion to exclude in the calculation of resources under SNAP any other education programs, contracts or accounts as determined by the Secretary. This rule proposes to amend 7 CFR 253.6(d)(2) to allow a resource exclusion for any other education savings accounts for which a resource exclusion is allowed under SNAP. This would allow FNS to maintain consistent policy in the treatment of education savings accounts and promote consistency in policy between FDPIR and SNAP.

This proposed rule would amend FDPIR regulations at 7 CFR 253.6(d)(2) to ensure consistent treatment of certain resources in determining FDPIR and SNAP eligibility. In accordance with Section 4104, funds that are held in qualified retirement accounts are excluded when determining eligibility for SNAP. Specifically, that section of the Farm Bill excludes the value of funds held in retirement accounts described in sections 401(a), 403(a), 403(b), 408, 408A, 457(b), and 501(c)(18) of the Internal Revenue Code of 1986 and the value of funds held in a Federal Thrift Savings Plan account as described in 5 U.S.C. 8439.

In accordance with FDPIR regulations and policy, retirement accounts and pension plans are excluded as long as the funds remain in the accounts. However, for clarification purposes and to ensure consistency between FDPIR and SNAP, this rule proposes to amend 7 CFR 253.6(d)(2) to exclude under FDPIR the comprehensive list of qualified retirement accounts specified in Section 4104 of the Farm Bill.

Section 4104 of the Farm Bill also provides for the exclusion of retirement accounts that may be enacted and determined to be exempt from tax under the Internal Revenue Code of 1986, and any other retirement plans, contracts, or accounts as determined by the Secretary. To allow FNS to maintain consistency with regard to its treatment of retirement accounts and promote consistency in policy between FDPIR and SNAP, this rule proposes to amend 7 CFR 253.6(d)(2) to allow a resource exclusion for any other retirement accounts for which a resource exclusion is allowed under SNAP.

Current FDPIR regulations at 7 CFR 253.6(e)(1)(i) state that the FDPIR income eligibility standards shall be the “monthly income eligibility standards for the Food Stamp Program.” However, SNAP eligibility procedures employ two separate income standards—a gross monthly income standard and a net monthly income standard. It is FNS policy that the SNAP net monthly income standard is the applicable income standard for determining income eligibility for FDPIR. However, due to lack of clarity in the regulations, FNS has received requests for policy clarification regarding which SNAP income guideline is applicable under FDPIR. Therefore, FNS is proposing an amendment to the regulations at 7 CFR 253.6(e)(1)(i) to clarify that FDPIR applies the SNAP net income standard, not the gross income standard. This change would clarify the regulatory language at 7 CFR 253.6(e)(1)(i), but not change current FDPIR policy nor revise current FDPIR income guidelines or eligibility criteria.

Appropriation legislation in FY 2005 through FY 2008 excluded combat pay ( i.e., additional pay earned as a result of deployment to or service in a combat zone) from income for the purposes of determining eligibility for SNAP. This policy was adopted for FDPIR and implemented by policy memorandum for those fiscal years. Section 4101 of the Farm Bill amended Section 5(d) of the Food and Nutrition Act of 2008 (7 U.S.C. 2014(d)) to permanently exclude combat pay from income for the purposes of determining SNAP eligibility. This change was implemented under FDPIR by policy memorandum on July 16, 2008. FNS is proposing a conforming amendment to FDPIR regulations at 7 CFR 253.6(e)(3)(xi) to permanently exclude combat pay from income when determining eligibility for FDPIR. The proposed change would align FDPIR regulations with current FDPIR and SNAP policy.

Current FDPIR regulations at 7 CFR 253.6(f)(2) state that the dependent care deduction cannot exceed the maximum allowable under SNAP. Section 4103 of the Farm Bill amended Section 5(e)(3)(A) of the Food and Nutrition Act of 2008 (7 U.S.C. 2014(e)(3)(A)) and eliminated the maximum dollar limit to the SNAP dependent care deduction, allowing participants to claim the full cost of their dependent care expenses. FNS implemented this change under FDPIR by the same policy memorandum mentioned in the previous paragraph. This proposed revision would remove regulatory language at 7 CFR 253.6(f)(2) that imposes a maximum limit on dependent care deductions, thereby aligning the FDPIR regulations with current FDPIR and SNAP policy.

Accordingly, 7 CFR Part 253 is proposed to be amended as follows:

I. Summary of the Proposed Determination A. Legal Authority B. Background 1. Definitions 2. 2003 Draft Report 3. 2004 Draft Report II. Discussion of the Analysis of High-Intensity Discharge Lamps A. Purpose and Content B. Methodology 1. Market and Technology Assessment 2. Engineering Analysis 3. Life-Cycle Cost Analysis 4. National Energy Savings Analysis 5. National Consumer Impacts Analysis C. Analysis Results 1. Engineering Analysis 2. Life-Cycle Cost and Payback Period Analysis 3. National Energy Savings and Consumer Impacts D. Discussion 1. Technological Feasibility 2. Significance of Energy Savings 3. Economic Justification III. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act of 1999 I. Review Under Executive Order 12630 J. Review Under the Treasury and General Government Appropriations Act of 2001 K. Review Under Executive Order 13211 L. Review Under the Information Quality Bulletin for Peer Review IV. Public Participation A. Submission of Comments B. Issues on Which DOE Seeks Comments V. Approval of the Office of the Assistant Secretary I. Summary of the Proposed Determination

EPCA requires DOE to issue a final determination whether energy conservation standards for HID lamps would be technologically feasible, economically justified, and would result in significant energy savings. DOE has tentatively determined that such standards are technologically feasible, economically justified, and would result in significant energy savings. Thus, DOE proposes to issue a positive determination. In its analysis for this proposed determination, DOE evaluated potential standards for HID that would lead to a migration from less efficient probe-start metal halide (MH) lamps to more efficient pulse-start MH lamps and high-pressure sodium (HPS) lamps. Both pulse-start MH and HPS lamps are existing HID technologies that are technically feasible. DOE's analysis determined whether a potential standard that sets a level that eliminates inefficient probe-start MH lamps would be economically justified and would result in significant energy savings.

DOE has tentatively determined that standards for HID lamps would be expected to be economically justified from the perspective of an individual consumer. According to DOE's analysis, there is at least one set of standard levels for HID lamps which could be set that would reduce the life-cycle cost (LCC) of ownership for the typical consumer; that is, the increase in equipment cost resulting from a standard would be more than offset by energy cost savings over the life of the system.

Standards would also be cost-effective from a national perspective. The national net present value (NPV) from standards could be as much as $15.0 billion in 2009$ for products purchased from 2017 to 2046, assuming an annual real discount rate of 3 percent. This forecast considers only the direct financial costs and benefits of standards to consumers, specifically the increased equipment costs of HID lamps and the associated energy cost savings. In its proposed determination analysis, DOE did not monetize or otherwise characterize any other potential costs and benefits of standards such as manufacturer impacts or power plant emission reductions. If the final determination is positive, then such additional impacts would be examined in a future analysis of the economic justification of particular standard levels in the context of a standards rulemaking that would set specific energy conservation requirements.

DOE's analysis also indicates that standards would result in significant cumulative energy savings over the analysis period (2017 to 2046)—at least 2.8 quads. This is equivalent to the annual electricity consumption of approximately 14 million U.S. homes.

Further documentation supporting the analyses described in this notice is contained in a separate preliminary TSD, available from the Office of Energy Efficiency and Renewable Energy's Web site at http://www1.eere.energy.gov/buildings/appliance_standards/commercial/high_intensity_lamps.html.

The National Energy Conservation Policy Act of 1978 amended EPCA to add a part C to title III of EPCA  1 establishing an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317) The Energy Policy Act of 1992 (EPACT), Public Law 102-486, 106 Stat. 2776 also amended EPCA, and included amendments that expanded title III to include HID lamps. Specifically, EPACT amended section 346 of EPCA (42 U.S.C. 6317) to provide in paragraph (a) that the Secretary of Energy (Secretary) must prescribe testing requirements and energy conservation standards for those HID lamps for which the Secretary determines that energy conservation standards “would be technologically feasible and economically justified, and would result in significant energy savings.” (42 U.S.C. 6317(a)(1))

Under EPCA, if DOE makes a positive determination, then it must proceed to establish testing requirements for those HID lamps to which the determination applies. (42 U.S.C. 6317(a)(1)) Subsequently, DOE will conduct a rulemaking to establish appropriate energy conservation standards. During the standards rulemaking, DOE would decide whether, and at what level(s), to promulgate energy conservation standards. This decision would be based on an in-depth consideration, with public participation, of the technological feasibility, economic justification, and energy savings of potential standard levels in the context of the criteria and procedures for prescribing new or amended standards established by section 325(o) and (p). (42 U.S.C. 6295(o)(p).)

DOE conducted previous analyses estimating the likely range of energy savings and economic benefits that would result from energy conservation standards for HID lamps, and prepared reports describing its analyses. DOE published these draft reports in June 2003 and December 2004, and made them available for public comment on the Office of Energy Efficiency and Renewable Energy's Web site at http://www1.eere.energy.gov/buildings/appliance_standards/commercial/high_intensity_lamps.html. The reports made no recommendation concerning the determination that DOE should make.

After the 2003 report, DOE received comments. The National Electrical Manufacturers Association (NEMA) encouraged DOE to extend coverage to HID lamps even if no energy conservation standard were set. (NEMA, No. 6 at pp. 1-2)  2 Again after the 2004 report, NEMA made a similar comment. NEMA also emphasized that “it is incumbent on DOE to state clearly in a forthcoming determination that HID lamps are `covered products' and thus Federal law preempts State regulation of all HID lamps.” (NEMA, No. 15 at p. 1.)

In 2002, DOE began the analysis in preparation for a proposed determination. DOE conducted initial analyses and shared its initial findings regarding efficiency improvement in HID lamps in the June 2003 draft report. Subsequently, DOE received additional data and information provided by NEMA. More recently, NEMA provided HID lamp shipments by lamp type for 2003 to 2008, and shipments by wattage grouping ( i.e., low, medium, and high) for 2008 that was used in the analysis for today's proposed determination.

DOE reviewed the relevant portions of the Energy Independence Security Act of 2007 (EISA 2007), and 10 CFR part 431 for applicable existing definitions for use in conducting a determination for energy conservation standards for HID lamps. EISA 2007 amended EPCA, in part by adding key terms that are applicable to the HID determination, including “high intensity discharge lamp,” “mercury vapor lamp,” and “metal halide lamp.” (42 U.S.C. 6291) These terms are defined as follows:

“High intensity discharge lamp” means an electric-discharge lamp in which—

(1) The light-producing arc is stabilized by the arc tube wall temperature; and

(2) The arc tube wall loading is in excess of 3 watts (W)/centimeters squared (cm 2 ), including such lamps that are mercury vapor, metal halide, and high-pressure sodium lamps. (42 U.S.C. 6291(46)(A).)

“Mercury vapor lamp” means a high intensity discharge lamp in which the major portion of the light is produced by radiation from mercury typically operating at a partial vapor pressure in excess of 100,000 pascals (Pa) (approximately 1 standard atmosphere). It includes clear, phosphor-coated, and self-ballasted screw-base lamps. (42 U.S.C. 6291(47)(A).)

“Metal halide lamp” means a high-intensity discharge lamp in which the major portion of the light is produced by radiation of metal halides and their product of dissociation, possibly in combination with metallic vapors. (42 U.S.C. 6291(63).)

Although current statutory definitions pertaining to HID lamps are relatively comprehensive, DOE believes that an additional definition will be necessary should DOE begin a test procedure rulemaking for HID lamps. Therefore, in the future, DOE will propose inserting a definition for “high pressure sodium lamp” into 10 CFR 431.452, “Definitions concerning high-intensity discharge lamps.”

Although low-pressure sodium (LPS) lamps are often classified as HID lamps in catalogues, they do not meet the definition of an HID lamp pursuant to EPCA, as amended. The arc tube wall loading for LPS lamps is lower than the statutorily defined 3 W/cm 2 threshold; therefore, LPS lamps are not HID lamps for purposes of today's proposed determination.

DOE received comments on the June 2003 draft report from Allegheny Power; the American Council for an Energy-Efficient Economy (ACEEE); the California Department of Transportation (Caltrans); Delta Power Supply (Delta); EEI; NEMA; the Pennsylvania Department of Transportation (PennDOT); and Ms. Lucinda Seigel. Unlike today's proposed determination, DOE's previous reports focused primarily on MV lamps rather than all HID lamp technologies. The following is a discussion of general comments received in response to the 2003 draft report, and a limited review of specific technical comments.

Comments responding to the 2003 Draft Report were generally supportive of a positive determination, and indicated that substantial benefits could be obtained from a standard that eliminated less efficient MV lamps. Delta stated that it wanted its comment to be considered an “emphatic YES” to an HID lamp standard. (Delta, No. 9 at p. 2) Many interested parties were in favor of restrictions on MV lamps. Caltrans commented that a possible rule eliminating MV would not affect it because it had stopped installing MV products and replaced most MV fixtures with HPS. (Caltrans, No. 8 at p. 1) ACEEE commented on the 2003 draft report that “ACEEE agrees that it makes sense to establish a minimum efficacy standard that eliminates mercury vapor lamps for many, if not all, applications.” (ACEEE, No. 11 at p. 1) NEMA commented that MV lamps will have been in the marketplace for over 80 years, and energy efficient replacements in the form of HPS and MH lamps have been generally available for 40 years.

DOE also received specific technical comments regarding possible lamp efficacy ( i.e., a measure of the conversion of power into visible light which is the technical term for lamp efficiency in the lighting industry and which is expressed in units of lumens/W). ACEEE referenced the minimum lamp efficacy of 60 lumens/W permitted in exterior lighting by the American Society of Heating, Refrigerating and Air-Conditioning Engineers/IESNA Standard 90.1-1999. ACEEE further recommended that DOE set minimum efficacy requirements that would eliminate probe-start MH lamps greater than 150 W. (ACEEE, No. 11 at p. 2)

DOE received many comments regarding alternative, non-HID technologies, including induction and fluorescent. Non-HID technologies are achieving market penetration in lighting applications traditionally dominated by HID; however, a detailed evaluation of these non-HID technologies falls outside of the scope of today's proposed determination. DOE will more fully consider other non-HID sources as part of a full standards rulemaking.

A comment was also received regarding the potential effect of standards on small businesses. Caltrans stated that small businesses usually are not manufacturers of lamps and ballasts and believed that the potential impact on small businesses would be minimal. (Caltrans, No. 8 at p. 1) In its technology and market assessments, DOE found that the majority of HID lamps are manufactured by a limited number of large companies. However, if DOE makes a positive determination, it will evaluate the potential effects of energy conservation standards on small businesses in subsequent HID lamp rulemakings.

DOE received additional comments on the December 2004 draft report from ACEEE, Benya Lighting Design (Benya), and NEMA. These comments are discussed in detail in the “Methodology” section of this notice.

DOE performed an analysis of the feasibility of achieving significant energy savings as a result of energy conservation standards for HID lamps. DOE presents the results of this analysis in a preliminary TSD for this proposed determination. In subsequent analyses for the standards preliminary analysis, NOPR, and final rule, DOE will perform the analyses required by EPCA. These analyses will involve more precise and detailed information that DOE will develop during the standards rulemaking process, and will detail the effects of proposed energy conservation standards for HID lamps.

To address EPCA requirements that DOE determine whether energy conservation standards for HID lamps would be technologically feasible and economically justified, and result in significant energy savings (42 U.S.C. 6317(b)(1)), DOE's performed five component analyses: (1) A market and technology assessment to understand better where and how HID lamps are used; (2) an engineering analysis to estimate the relationship between product costs and energy use; (3) an LCC analysis to estimate the costs and benefits to users from increased efficacy in HID lamps; (4) a national energy savings analysis to estimate the potential energy savings on a national scale; and (5) a national consumer impacts analysis to estimate potential economic costs and benefits that would result from improving energy efficacy in the considered HID lamps. The following is a brief description of each analysis.

DOE conducted research into the market for considered HID lamps, including national annual shipments, the current range of lamp-and-ballast system efficacies, lamp applications and utilization, market structure, and distribution channels. It used information from trade associations that support industrial sectors and reviewed literature in technical journals. At DOE's request, NEMA provided data on lamp shipments of HID lamps, subcategorized by HPS, MV, and MH lamp data from its member manufacturers, for the five-year period from 2003 to 2008. NEMA had provided data for 1990 to 2002 to DOE in previous efforts related to today's proposed determination. Based on its market research, DOE found that HID lamps are typically used in commercial, industrial, and municipal applications with differing electricity tariffs. DOE estimates that, on average, HID lamps are used in applications ( e.g. , municipal (exterior) and industrial) that typically operate 12 hours per day or more.

Dimming of HID lamps is not common. DOE examined NEMA's Lighting Systems Division Document LSD 14-2002 Guidelines on the Application of Dimming High Intensity Discharge Lamps to evaluate typical practices for HID dimming. LSD 14-2002 notes that that dimming ballasts are relatively new (having only been commercially available since the 1990s); that HID lamps should not be dimmed below 50 percent of the rated lamp wattage; that color, life and efficacy are affected by dimming; and that few standards exist for dimming HID systems requiring that the system (lamp and ballast) be tested in the field to determine if the performance of the lamp and ballast working together is acceptable. Given these barriers to the dimming of HID lamps in typical applications, DOE assumed that the HID lamps are operating at full power for the purpose of the analysis supporting this proposed determination.

Several comments in response to the 2004 draft report addressed elements of the HID lamp market and how standards promulgated by DOE might impact the market. Benya commented that standards that effectively banned MV lamps could be warranted and beneficial. (Benya, No. 14 at p. 1) ACEEE commented that DOE should focus on replacing probe-start MH with pulse-start MH, in addition to possibly introducing standards for MV lamps. (ACEEE, No. 16 at p. 1.)

Since these comments were received, new legislation was enacted in California that prevents MV ballasts from being manufactured or imported pursuant to 10 CFR 431.286. See CAL. CODE REGS. Title 20, § 1605.3(n)(2) (2010). Consequently the analysis for this proposed determination assumes that any MV lamp shipments will service existing MV ballasts only, and that MV lamp shipments will decline as a result.

Regulations currently in effect in six States (Arizona, California, New York, Oregon, Rhode Island, and Washington) limit the use of probe-start MH technologies by banning fixtures in the wattage range of 150-500 from having probe-start ballasts. DOE's analysis for the proposed determination uses information regarding the impact of the State regulations and considers market trends in both MV and probe-start MH technologies.

A key factor in the relative performance of different HID lamp technologies is the lamp lifetime. Manufacturers publish the life rating for HID lamps, known as B50 ( i.e., the point at which 50 percent of an operating population of lamps is still operating). DOE received information regarding lamp and ballast lifetimes in comments received in response to the 2003 draft report. DOE received comments that MV and HPS lamps were typically relamped ( i.e., replaced) every 4 years, and MH lamps typically every 2 years. (Caltrans, No. 8 at p. 2; Allegheny, No. 12 at p. 1) Allegheny further stated that the lamp life is generally the rated lamp life by the manufacturer. Typical life of HID lamps varies with lamp type and wattage, and ranges from 8,000 to greater than 24,000 hours, according to the manufacturer catalog data surveyed and included in the preliminary TSD. To determine annual maintenance costs, DOE uses median rated lamp lifetime as the basis for relamping schedules.

HID lamps typically cannot operate without a ballast that is specifically designed for a corresponding lamp technology. The vast majority of ballasts for HID lamps are of the electromagnetic (magnetic) type. The industry-accepted life of magnetic ballasts is 50,000 hours, and is widely cited in ballast catalogs and by utility programs. After the 2003 report, Allegheny stated that MV ballast lifetimes are 12 years or greater. (Allegheny, No. 12 at p. 1) The life of the light fixture (also known as a luminaire) varies but generally lasts as long as the ballast.

Another factor that can affect the energy consumption of an HID lighting system is the energy consumption of the ballast. DOE analyzed the system (lamp and ballast) power since particular lamp technologies are usually associated with a technology-specific ballast design. DOE received comments related to system input power in response to the technical reports preceding today's proposed determination. ACEEE commented that an energy analysis should use the system wattage for the input power. (ACEEE, No. 11 at p. 3) In response, DOE selected a representative ballast to pair with the lamp, and used the system input power to determine energy usage for the proposed determination. DOE evaluated manufacturer data on ballast performance for multiple HID ballast designs including constant-wattage autotransformer, constant-wattage isolated, high-reactance autotransformer, and magnetically-regulated electronic ballasts. Based on its evaluation, DOE determined that the variation in ballast input power across ballast designs for a given lamp wattage is relatively small compared to the energy use difference between different HID lighting system technologies. For example, for 175 W probe-start ballasts, the minimum surveyed input power was 200 W, the maximum surveyed input power was 226 W, and the median input power was 208 W. There is only a 13 percent range in input power from the minimum to the maximum input powers surveyed. DOE calculated median input wattage across applicable ballast designs to calculate the system energy consumption and concluded that ballast energy consumption variation should be less than a 7-percent effect. This variation is small compared to the relative magnitude of energy savings calculated in DOE's analysis. By comparison, the most efficient HID substitute for the baseline 175 watt probe start MH lamp is a 100 watt HPS lamp that uses more than 40 percent less power.

For this proposed determination, DOE analyzed a range of lamp capacities. At least two conventions exist for characterizing HID lamp capacity: Input power and light output. DOE categorized representative HID lamps based on the light output (measured in mean lumens) of the analyzed baseline lamp types since, as lamps get more efficient, the input power should decrease as the user service ( i.e., light output) stays the same or increases. The analyzed equipment classes correspond with medium-wattage HID lamps (defined as between 150 and 500 watts), which was the primary wattage range considered in the 2004 draft report. However, because DOE considers lumen output instead of wattage as a more appropriate measure of lamp utility from a consumer perspective, it uses lumen output as the basis for categorization in today's proposed determination as shown in table II.1 in section C.1 of this notice which provides the engineering analysis results.

In the engineering analysis, DOE identified representative baseline HID lighting systems and energy-efficient substitutes within each lumen output category. Both the baseline system and the efficiency substitutes have different power ratings, with the power rating decreasing with the increased efficacy of the substitute. The engineering analysis outputs of cost and power consumption are critical inputs to subsequent financial cost-benefit calculations for individual consumers performed in the LCC and the national impacts analysis. DOE developed end-user prices, including a contractor mark-up rate and average national sales tax, for analyzed lamp, lamp-and-ballast, and luminaire designs.

DOE did not include MV lamps in the engineering analysis for today's proposed determination. DOE forecasts that MV lamp shipments will decline to zero by the effective date of a potential HID lamps standard, assumed as 2017 because of the ban on MV ballast manufactured after January 1, 2008, codified in EPCA as amended. (42 U.S.C. 6295(ee).) Consequently, DOE did not analyze MV baseline lamps in its LCC analysis because MV fixtures are no longer a viable purchase option. However, DOE did consider the existing MV in existing HID installed base when it performed its national energy savings/national consumer benefits analysis. This installed base of MV systems will age and be replaced with other HID technologies over time.

DOE examined other currently available commercial equipment for replacing the least efficacious (baseline) HID sources—MV and probe-start MH. ACEEE commented on the 2003 draft report, noting that a potential standard should address replacing probe-start MH lamps with pulse-start MH lamps. (ACEEE, No. 11 at p. 2.) Substitutes include either HPS or pulse-start MH as typical options when replacing either MV or probe-start MH technologies. HPS lamps are among the most efficient electric light sources, and are a viable substitute in applications where energy efficiency and/or lower first cost is considered more important than color quality. Pulse-start MH is the most efficient broad spectrum (“white light”) HID technology, and has a higher first cost than MV and HPS. DOE received related comments during the Metal Halide Lamp Fixture (DOE Docket No. EERE-2009-BT-STD-0018/RIN 1904-AC00) public meeting on January 26, 2010. During this meeting, Philips noted that after California enacted a provision regarding ballast efficiency that affects probe-start MH lamp ballasts, the manufacturer saw sales shift from probe-start MH to both pulse-start MH and HPS. (Philips, RIN1904-AC00 Public Meeting Transcript, No. 1.2.005, at pp. 85 and 164) Philips noted that when California implemented standards that eliminated probe-start MH technologies, the manufacturer saw a majority of its sales for probe-start MH lamps shift in equal portions to pulse-start MH and HPS lamps, respectively. Therefore, DOE used both HPS and pulse-start MH as substitute options to the baseline probe-start MH technologies.

DOE assumes in the analysis supporting today's proposed determination that changes in lamp technology will lead to changes in the entire lamp system. DOE therefore used a systems approach in analyzing the representative equipment types because both lamps and ballasts determine a system's energy use and light output. Accordingly, the analysis paired lamps with corresponding ballasts to develop representative lamp-and-ballast systems, in order to estimate the actual energy usage and light output of operating lamps.

In the engineering analysis for today's proposed determination, DOE only considered magnetic ballasts because they are the most common ballast for HID lighting systems. DOE estimates that magnetic ballasts constitute over 90 percent of HID ballasts currently sold and an even higher percentage of the installed HID ballast stock. Electronic ballasts entered the market at the end of the 1990s, and still occupy less than a 10 percent market share because of a variety of technical and operational barriers that are discussed in some detail in the preliminary TSD.

DOE conducted an initial LCC analysis to estimate the net financial benefit to users from the increased efficacy of HID lamps. The LCC analysis compared the additional initial cost of a more efficacious lamp and related fixture to the discounted value of electricity savings over the life of the fixture ballast. DOE's LCC analysis used the following inputs: Estimated average annual operating hours and lamp lifetimes; estimated average prices for lamps and fixtures; representative maintenance costs; electricity prices paid by users of HID lamps; and the discount rate. In commenting on previous draft reports, PennDOT noted that tariffs vary by region even within the same State. (PennDOT, No. 5 at p. 1.) While DOE agrees that there is regional variation of tariffs, for the purpose of today's proposed determination, DOE uses national average electricity prices for 2009 from the Energy Information Administration's (EIA) Annual Energy Outlook 2009 (AEO 2009) for commercial and industrial applications to calculate impacts for the average HID lamp user. The LCC analysis does not include MV lamps, since MV ballasts can no longer be imported or manufactured; DOE assumed that when MV ballasts failed consumers would have to switch to another HID technology.

The LCC analysis not only evaluated the replacement of the HID lamp, but also those cases where the whole system would need to be replaced. Given the specificity of HID lamp-and-ballast combinations, DOE assumed that replacement of baseline HID systems with energy-efficient substitutes would, at a minimum, require a new lamp-and-ballast system. In some cases, the physical and operational characteristics of the replacement lamp-and-ballast system may also require replacement of the entire fixture. Consequently, DOE treated lamp-and-ballast and fixture replacement as economic issues in the LCC analysis, which considers the installed cost of the lamp, lamp-and-ballast system, and fixture. In analyzing the lighting system, the ballast has the longer lifetime and therefore represents the lifetime of the system (which may have the lamp replaced several times before the ballast is replaced). DOE therefore set the LCC analysis period equal to the lifetime of the fixture ballast in years, i.e., 50,000 hours divided by the annual operating hours. This approach is consistent with the LCC methodology that DOE used in the 2003 draft report.

DOE assigned annual operating hours to representative equipment based on two operating scenarios. Exterior lighting applications were assumed for the commercial operating scenario, where HID lamps with poorer color quality ( e.g., HPS) are a viable substitute ( e.g., street and parking lot lighting). Interior lighting applications were assumed for the industrial operating scenario, where “white light” substitutes with higher color quality ( e.g., pulse-start MH) are assumed as mandatory.

DOE obtained information on hours of operation for the different scenarios from industry publications that provide guidance for installers and lighting engineers. From these sources DOE estimated 4,200 hours per year of operation for exterior applications and 5,840 hours per year for interior applications. A more detailed discussion of the data sources and the derivation of these estimates are provided in the preliminary TSD.

In the LCC analysis, DOE also includes maintenance costs in the estimation of the LCC of HID lighting systems. DOE examined a range of publicly available information sources and estimated an average annual maintenance cost of $225 per relamping for exterior applications. DOE could not find comparable data for representative interior maintenance costs but because of the increased accessibility and better working conditions for interior installations, DOE divided the exterior relamping costs by three to estimate the interior relamping costs. Therefore, for today's proposed determination DOE used $225 for each exterior relamping and $74 for each interior relamping. DOE requests comment on these representative maintenance costs.

For the LCC analysis, DOE estimated average commercial and industrial electricity prices using the 2017 to 2030 forecasts from EIA's AEO 2009. After the 2003 Report, DOE received two comments regarding the price of electricity. ACEEE recommended using a later version of the AEO in the final rule. (ACEEE, No. 11 at 3.) PennDOT stated that energy tariffs vary across the State between the range of $0.035/kWh to $0.15/kWh. PennDOT felt that the 2003 rates between $0.09/kWh to $0.11/kWh may not return a valid result when compared to actual costs. (PennDOT, No. 5 at p. 1.) While DOE agrees that there may be substantial variability in tariffs, for today's proposed determination DOE believes that using the average price of electricity is sufficient to characterize the overall economic justification of a potential standard. DOE is therefore using the average price per end use sector ( i.e., commercial or industrial) over the course of the analysis period. DOE requests comment as to whether in the full rulemaking analysis, DOE's analysis should include the minimum, mean, and the maximum energy tariffs for the relevant end use sectors.

In the LCC analysis, the discount rate determines the relative value of future energy savings compared to increases in first costs that may arise from a potential energy conservation standard. DOE received comments from ACEEE regarding the discount rates used in the 2003 report. ACEEE felt that the 8-percent rate was reasonable and the 15-percent rate was much too high. (ACEEE, No. 11 at p. 2.) For commercial and industrial consumers, DOE estimates the cost of capital for commercial and industrial companies by examining both debt and equity capital, and develops an appropriately weighted average of the cost to the company of equity and debt financing. The resulting average discounted industrial and commercial discount rates used in the LCC analysis are 7.6 percent and 7.0 percent, respectively.

In the 2003 report, DOE used retail catalog pricing for HID lamp and fixture prices. In response, NEMA commented that retail price catalogs are not a good source of actual cost information and recommended hiring an energy service company to solicit bids on prices. (NEMA, No. 6 at p. 4.) DOE considered this comment, but while DOE agrees that there may be inaccuracies in list prices, DOE believes that there may also be distortions in bid prices that would create data that is unrepresentative of future costs. Currently the country is experiencing a deep recession where bid prices are likely to be substantially deflated compared to the case of average economic conditions. This is likely to distort any bid price data that would be solicited by DOE. DOE therefore believes at this time that catalogue price data is as representative as bid price data for the purposes of today's proposed determination.

DOE estimated the base purchase price of representative HID lamps, ballasts, and fixtures using prices available on both the W.W. Grainger, Inc. and Goodmart Web sites. These online retailer price catalogues were selected because they offer a wide range of products (i.e., lamps, ballasts, and fixtures) for multiple types of HID lamps and wattages. The municipal procurement contracts also exist for HID lamps and can provide price data, but do not contain price data for other components of the lamp system needed for the analysis. DOE also evaluated State procurement contracts for fixtures but found then to be highly variable. DOE therefore used the prices developed from the Grainger and Goodmart Web sites as an information source that is publicly available (requiring no special log in to access the data) and which offers product information that could be applied to the full range of HID lighting system technologies and components. The preliminary TSD lists the price data that DOE obtained from all sources, including RS-Means, State procurement contracts, Grainger, and Goodmart. HID prices vary by region, manufacturer, quantity, type, and quality (and that end users may pay different prices), and therefore DOE attempted to select price data for different lighting system options that were directly comparable. DOE invites comment on its selection and analysis of the available HID lighting system price data.

DOE added a contractor mark-up to the fixture cost to reflect the actual installed prices in the LCC. ACEEE commented that DOE should assume a 13-percent contractor mark-up rate. (ACEEE, No. 11 at p. 2.) DOE compared this markup with data from other lighting rules, agreed with the ACEEE comment, and used a mark-up of 13 percent in the proposed determination. DOE also added an average national sales tax of 7 percent to the installed cost.

Depending on when different parts of an HID lighting system are replaced, the costs of switching to improved efficacy lamps can vary. DOE therefore requested comment in the 2003 draft report regarding when a standard might prompt: (1) A lamp replacement; (2) replacement of both the lamp and the ballast; or (3) replacement of the entire HID lighting fixture. Allegheny commented that for all but roadway fixtures that are customer-owned and under Allegheny's contract maintenance, Allegheny would replace the fixture outright if the lamp were no longer available. (Allegheny, No. 12 at pp. 2-3.) DOE also asked interested parties “to provide their estimates of the percentage of the market that will choose each replacement option.” Allegheny surveyed fixture and lamp suppliers and found that 80 percent would replace the fixture, and the remaining 20 percent would either replace the lamp or lamp-and-ballast. (Allegheny, No. 12 at pp. 2-3.) Allegheny's comments are supported by ACEEE's comments that “evidence supports full luminaire replacement of some metal halide systems over more time-consuming lamp/ballast replacements.” (ACEEE, No. 11 at p. 3.) Today's proposed determination includes lamp-and-ballast and fixture replacement costs when determining the LCC for HID lamps.

To estimate national energy savings for HID lamps sold from 2017 through 2046, DOE calculated the estimated energy usage of analyzed lamp-and-ballast systems in a base case (absent a standard) and a standards case. DOE calculated the installed base of HID lamps using historical lamp shipments data provided by NEMA. Projected shipments were based on the lamp lifetimes, system energy use, and operating scenarios developed for the LCC analysis, as well as estimated market and substitution trends in the base case and standards case.

To estimate potential energy savings from the proposed energy conservation standard, DOE used an accounting model that calculated total end-use electricity savings in each year of a 30-year forecast. The model featured an equipment-retirement function to calculate the number of units sold in a given year, or vintage, which would still be in operation in future years. For example, some of the HID lamps sold in 2030 will operate through 2035.

DOE calculated primary energy ( i.e., energy used by the power plant) savings associated with end-use electricity savings using data from EIA's AEO 2009. These data provided an average multiplier for relating end-use electricity to primary energy use for each year from 2017 to 2030. DOE extrapolated the trend in these years to derive factors for 2031 to 2046.

DOE estimated the national economic effect on end users in terms of the NPV of cumulative benefits from 2017 to 2046. It considered the effects under the same range of scenarios as it did for estimating national energy savings. It used the new equipment costs and energy savings for each energy efficiency level that it applied in the LCC analysis. To simplify the analysis, DOE estimated the value of energy savings using the average AEO 2009 forecast electricity price from 2017 to 2030. DOE discounted future costs and benefits by using 3 percent and 7 percent discount rate, according to the “Guidelines and Discount Rates for Benefit Analysis of Federal Programs,” issued by the Office of Management and Budget in 1992 (Circular No. A-94, Revised).

As described above, DOE conducted separate analyses examining 10 representative HID lamp types, as presented in Table II.1.

In the engineering analysis, for a lamp to be considered a suitable option, its replacement had to produce at least 90 percent of the mean lumen output of the baseline system and draw less power than the baseline lamp-and-ballast system. Power was determined by the lamp-and-ballast input, based in part on the representative ballast type chosen for each option.

Table II.2 to Table II.5 present the results for medium wattage probe-start MH lamps and higher-efficiency substitute HID lamps in a lamp-only replacement scenario. In this scenario, a failed baseline lamp is replaced either with an identical baseline lamp, or with a substitute lamp-and-ballast system. These analyses were based on representative, incremental lamp and fixture prices as well as maintenance costs. A full rulemaking would yield more detailed results than the representative analyses conducted. Generally, the LCC of a high-efficiency lamp and ballast replacement is higher than the LCC of an inefficient lamp-only replacement.

Table II.6 to Table II.69 present the results for medium wattage probe-start MH lamps and higher-efficiency substitute HID lamps in a new construction or fixture replacement scenario. In this scenario, a consumer selects either a baseline or substitute fixture and lamp. In the exterior lighting cases, the HPS substitutes have a lower LCC. These analyses were based on representative and incremental lamp and fixture prices as well as maintenance costs. A full rulemaking would yield more detailed results than the representative analyses conducted.

Comments Invited

We invite you to send any written data, views, or arguments about this proposed AD. Send your comments to an address listed in the ADDRESSES section of this proposal. Include “Docket No. FAA-2010-0449; Directorate Identifier 2009-SW-38-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.

EASA, which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2009-0137, dated June 23, 2009, to correct an unsafe condition for the Agusta Model A109E helicopters.

Following a report of an electrical failure, Agusta investigated the electrical power generation system and identified inadequate functioning of the 35 Amps BATT BUS circuit breaker. To prevent an electrical failure, the manufacturer has developed a BATT BUS circuit breaker modification kit for replacing the 35 Amps circuit breaker with a 50 Amps circuit breaker and replacing the wires with oversized ones. You may obtain further information by examining the MCAI AD and any related service information in the AD docket.

Agusta has issued Bollettino Tecnico No. 109EP-98, dated June 22, 2009, that specifies modifying the BATT BUS circuit breaker installation. The service information specifies modifying the fuselage electrical installation, part number (P/N) 109-0741-49, and the overhead panel electrical installation, P/N 109-0741-55, with a BATT BUS circuit breaker modification kit, P/N 109-0824-73-101. The actions described in the MCAI AD are intended to correct the same unsafe condition as that identified in the service information.

This model helicopter has been approved by the aviation authority of Italy and is approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, their Technical Agent, has notified us of the unsafe condition described in the MCAI AD. We are proposing this AD because we evaluated the information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

We refer to flight hours as hours time-in-service. Also, we do not refer to a calendar compliance date of December 31, 2009, because the effective date of this AD would be later than that date.

We estimate that this AD would affect about 73 helicopters of U.S. registry. We also estimate that it would take about 5 work-hours per helicopter to modify the BATT BUS circuit breaker installation. The average labor rate is $85 per work-hour. Required parts will cost about $700 for the BATT BUS circuit breaker kit. Based on these figures, we estimate the cost of this AD on U.S. operators would be $82,125, assuming the entire fleet is modified.

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 product(s) 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.

Therefore, I certify this proposed AD:

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 an economic 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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-0399/Airspace Docket No. 10-AGL-3.” The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office ( see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, 2601 Meacham Blvd., Fort Worth, TX 76137.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This action proposes to amend Title 14, Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface for SIAPs operations at Paynesville Municipal Airport, Paynesville, MN. Controlled airspace is needed for the safety and management of IFR operations at the airport.

Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9T, signed August 27, 2009 and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Paynesville Municipal Airport, Paynesville, MN.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Comments Invited

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-0400/Airspace Docket No. 10-ACE-3.” The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office ( see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, 2601 Meacham Blvd., Fort Worth, TX 76137.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), part 71 by establishing Class E airspace extending upward from 700 feet above the surface for SIAPs operations at Syracuse—Hamilton County Municipal Airport, Syracuse, KS. Controlled airspace is needed for the safety and management of IFR operations at the airport.

Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9T, signed August 27, 2009 and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Syracuse—Hamilton County Municipal Airport, Syracuse, KS.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

OCNMS was designated in May 1994. It spans 3,310 square miles of marine waters off the rugged Olympic Peninsula coast, covering much of the continental shelf and the heads of several major submarine canyons. The present management plan was written as part of the sanctuary designation process and published in the Final Environmental Impact Statement in 1993.

In September 2008, NOAA published a Notice of Intent to prepare an Environmental Impact Statement under the authority of NEPA (73 FR 53161). The management plan review process is composed of four major stages: (1) Information collection and characterization; (2) preparation and release of a draft management plan/environmental impact analysis document; (3) public review and comment; (4) preparation and release of a final management plan/environmental impact analysis document, and any final amendments to the regulations. NOAA anticipates completion of the revised management plan and concomitant documents will require approximately thirty-six months from the date of publication of the original notice of intent (37 FR 53161; September 15, 2008). The proposed revised management plan will likely involve changes to existing policies of the Sanctuary in order to address contemporary issues and challenges, and to better protect and manage the Sanctuary's natural resources and qualities and historic properties.

This notice confirms that NOAA will coordinate its responsibilities under section 106 of the National Historic Preservation Act (NHPA, 16 U.S.C. 470) with its ongoing NEPA process, pursuant to 36 CFR 800.8(a)—coordination with NEPA—including the use of NEPA documents and public and stakeholder meetings to also meet the section 106 requirements. The NHPA specifically applies to any agency undertaking that has an adverse effect on historic properties. Pursuant to 36 CFR 800.16(1)(1), historic properties includes: “any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. The term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe * * * and that meet the National Register criteria.”

In coordinating its responsibilities under the NHPA and NEPA, NOAA intends to identify consulting parties; identify historic properties and assess the effects of the undertaking on such properties; initiate formal consultation with the Washington State Historic Preservation Officer, appropriate Tribal Historic Preservation Officers, the Advisory Council of Historic Preservation, and other consulting parties; involve the public in accordance with NOAA's NEPA procedures, and develop in consultation with identified consulting parties alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects on historic properties and describe them in any Environmental Assessment or Draft Environmental Impact Statement.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

EPA is proposing to take several related actions. EPA is proposing to determine that the Manitowoc County and Door County nonattainment areas have attained the 1997 8-hour ozone standard and that the areas have met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve the requests from WDNR to change the legal designation of the Manitowoc County and Door County areas from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve, as revisions to the Wisconsin SIP, the State's maintenance plans (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plans are designed to keep the Manitowoc County and Door County areas in attainment of the ozone NAAQS through 2020. EPA is proposing to approve the 2005 base year emissions inventories for the Manitowoc County and Door County areas as meeting the requirements of section 172(c)(3) of the CAA. If EPA's determination of attainment is finalized, under the provisions of 40 CFR 51.918, the requirement to submit certain planning SIPs related to attainment (the Reasonably Available Control Measure (RACM) requirement of section 172(c)(1) of the CAA, the Reasonable Further Progress (RFP) and attainment demonstration requirements of sections 172(c)(2) and (6) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) are not applicable to the area as long as it continues to attain the NAAQS and would cease to be applicable upon redesignation. In addition, as set forth in more detail below, in the context of redesignations, EPA has interpreted requirements related to attainment as not applicable for purposes of redesignation. Finally, EPA finds adequate and is proposing to approve the newly-established 2012 and 2020 MVEBs for the Manitowoc County and Door County areas. The adequacy comment period for the MVEBs began on February 24, 2010, with EPA's posting of the availability of the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm ). The adequacy comment period for these MVEBs ended on March 26, 2010. EPA did not receive any requests for this submittal, or adverse comments on this submittal during the adequacy comment period. In a letter dated April 7, 2010, EPA informed WDNR that we had found the 2012 and 2020 MVEBs to be adequate for use in transportation conformity analyses. Please see section VI.B. of this rulemaking, “Adequacy of Wisconsin's MVEBs,” for further explanation of this process. Therefore, we find adequate, and are proposing to approve, the State's 2012 and 2020 MVEBs for transportation conformity purposes.

Ground-level ozone is not emitted directly by sources. Rather, emissions of nitrogen oxides (NO X ) and volatile organic compounds (VOCs) react in the presence of sunlight to form ground-level ozone. NO X and VOCs are referred to as precursors of ozone.

The CAA establishes a process for air quality management through the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 56852), the Manitowoc County and Door County areas were designated as moderate and rural transport nonattainment areas, respectively, under the 1-hour ozone NAAQS. The Manitowoc County and Door County areas were subsequently redesignated to attainment of the 1-hour standard on April 17, 2003 (68 FR 18883). At the time EPA revoked the 1-hour ozone NAAQS, on June 15, 2005, the Manitowoc County and Door County areas were designated as attainment under the 1-hour ozone NAAQS.

On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 FR 23857), EPA published a final rule designating and classifying areas under the 8-hour ozone NAAQS. These designations and classifications became effective June 15, 2004. EPA designated as nonattainment any area that was violating the 8-hour ozone NAAQS based on the three most recent years of air quality data, 2001-2003.

The CAA contains two sets of provisions, subpart 1 and subpart 2, that address planning and control requirements for nonattainment areas. (Both are found in Title I, part D, of the CAA; 42 U.S.C. 7501-7509a and 7511-7511f, respectively.) Subpart 1 contains general requirements for nonattainment areas for any pollutant, including ozone, governed by a NAAQS. Subpart 2 provides additional and more specific requirements for ozone nonattainment areas.

Under EPA's implementation rule for the 1997 8-hour ozone standard, (69 FR 23951 (April 30, 2004)), an area was classified under subpart 2 based on its 8-hour ozone design value ( i.e. the three-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at the time of designation at or above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 2) (69 FR 23954). All other areas were covered under subpart 1, based upon their 8-hour design values (69 FR 23958). The Manitowoc County and Door County areas were designated as a subpart 1, 8-hour ozone nonattainment area by EPA on April 30, 2004 (69 FR 23857, 23947), based on air quality monitoring data from 2001-2003 (69 FR 23860).

40 CFR 50.10 and 40 CFR part 50, Appendix I, provide that the 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm, when rounded. The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90%, and no single year has less than 75% data completeness. See 40 CFR part 50, Appendix I, 2.3(d).

The WDNR submitted requests to redesignate the Manitowoc County and Door County areas to attainment for the 8-hour ozone standard on September 11, 2009. The redesignation requests included three years of complete, quality-assured data for the period of 2006 through 2008, indicating the 8-hour NAAQS for ozone, as promulgated in 1997, had been attained for the Manitowoc County and Door County areas. Complete, quality-assured monitoring data in AQS but not yet certified for the 2009 ozone season show that the areas continue to attain the 8-hour ozone standard. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).

On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm. In May 2008, States, environmental groups and industry groups filed petitions with the DC Circuit Court of Appeals for review of the 2008 ozone standards. In March 2009, the court granted EPA's request to stay the litigation so EPA could review the standards and determine whether they should be reconsidered. On September 16, 2009, we announced that we are reconsidering our 2008 decision setting national standards for ground-level ozone. The designation process for that standard has been stayed. On January 19, 2010, EPA proposed to set the level of the primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, rather than at 0.075 ppm (75 FR 2938). We expect by August 2010 to have completed our reconsideration of the standard and also expect that thereafter we will proceed with designations. The actions addressed in today's proposed rulemaking relate only to the 1997 8-hour ozone standard.

On December 22, 2006, in South Coast Air Quality Management Dist. v. EPA (South Coast), the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the DC Circuit Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Id., Docket No. 04 1201. Therefore, several provisions of the Phase 1 Rule remain effective: provisions related to classifications for areas currently classified under subpart 2 of Title I, part D, of the CAA as 8-hour nonattainment areas; the 8-hour attainment dates; and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS. The June 8, 2007, decision also left intact the court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8, 2007, decision reaffirmed the December 22, 2006, decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) section 185 penalty fees for 1-hour severe or extreme nonattainment areas; (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and (4) certain transportation conformity requirements for certain types of Federal actions. The June 8, 2007, decision clarified that the court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations.

This section sets forth EPA's views on the potential effect of the court's rulings on these proposed redesignation actions. For the reasons set forth below, EPA does not believe that the court's rulings alter any requirements relevant to these redesignation actions so as to preclude redesignation or prevent EPA from proposing or ultimately finalizing these redesignations. EPA believes that the court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of these areas to attainment, because even in light of the court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.

With respect to the 8-hour standard, the court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8-hour standard, and remanded that matter to the Agency. In its January 16, 2009, proposed rulemaking in response to the South Coast decision, EPA has proposed to classify Door County and Manitowoc County under subpart 2 as moderate and marginal areas, respectively (74 FR 2936, 2944). If EPA finalizes this rulemaking, the requirements under subpart 2 will become applicable when they are due, a deadline that EPA has proposed to be one year after the effective date of a final rulemaking classifying areas as moderate or marginal (74 FR 2940-2941). Although a future final decision by EPA to classify these areas under subpart 2 would trigger additional future requirements for the areas, EPA believes that this does not mean that redesignations cannot now go forward. This belief is based upon: (1) EPA's longstanding policy of evaluating requirements in accordance with the requirements due at the time the request is submitted; and, (2) consideration of the inequity of applying retroactively any requirements that might be applied in the future.

First, at the time the redesignation requests were submitted, the Manitowoc County and Door County areas were not classified under subpart 2, nor were there any subpart 2 requirements yet due for these areas. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. See September 4, 1992, Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation of Detroit-Ann Arbor). See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), which upheld EPA's redesignation rulemaking applying this interpretation. See, e.g. also 68 FR 25418, 25424, 25427 (May 12, 2003) (Redesignation of St. Louis).

Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The DC Circuit has recognized the inequity in such retroactive rulemaking. In Sierra Club v. Whitman, 285 F.3d 63 (DC Cir. 2002), the DC Circuit upheld a district court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” Id. at 68. Similarly here it would be unfair to penalize the areas by applying to them, for purposes of redesignation, additional SIP requirements under subpart 2 that were not in effect or yet due at the time WDNR submitted its redesignation requests.

With respect to the 1-hour standard requirements, the Manitowoc County and Door County areas were attainment areas subject to CAA section 175A maintenance plans under the 1-hour standard at the time that the 1-hour standard was revoked. Therefore, the DC Circuit's decisions with respect to 1-hour nonattainment anti-backsliding requirements do not impact redesignation requests for these types of areas, except to the extent that the court in its June 8, 2007, decision clarified that for those areas with 1-hour motor vehicle emissions budgets in their maintenance plans, anti-backsliding requires that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93.

With respect to the three other anti-backsliding provisions for the 1-hour standard that the court found were not properly retained, the Manitowoc County and Door County areas are attainment areas subject to maintenance plans for the 1-hour standard, and the NSR, contingency measures (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision requirements no longer apply to areas that have been redesignated to attainment of the 1-hour standard.

Thus, the South Coast decision in South Coast Air Quality Management Dist. does not preclude EPA from finalizing the redesignation of these areas.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the State containing such area has met all requirements applicable to the area under section 110 and part D.

EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

“Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from William G. Laxton, Director Technical Support Division, June 18, 1990;

“Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;

“Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;

“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992;

“State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (ACT) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;

“Technical Support Documents (TSDs) for Redesignation Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;

“State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;

“Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, November 30, 1993.

“Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and

“Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.

Approval of the redesignation requests would change the official designations of the Manitowoc County and Door County areas for the 1997 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Wisconsin SIP plans for maintaining the 8-hour ozone NAAQS through 2020. The maintenance plans include contingency measures as required under CAA section 175A to remedy future violations of the 8-hour NAAQS. They also establish MVEBs for the Manitowoc County area of 1.76 and 1.25 tons per day (tpd) for VOC and 3.76 and 1.86 tpd for NO X for the years 2012 and 2020, respectively, and MVEBs for the Door County area of 0.78 and 0.53 tpd for VOC and 1.55 and 0.74 tpd for NO X for the years 2012 and 2020, respectively.

EPA is proposing to determine that the Manitowoc County and Door County areas have attained the 1997 8-hour ozone standard and that the areas have met all other applicable redesignation criteria under CAA section 107(d)(3)(E). The basis for EPA's proposed approvals of the redesignation requests is as follows:

EPA is proposing to make determinations that the Manitowoc County and Door County areas have attained the 1997 8-hour ozone NAAQS. An area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and part 50, Appendix I, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in AQS. The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

Wisconsin included in its redesignation requests ozone monitoring data for the 2006 to 2008 ozone seasons and has subsequently provided monitoring data for 2009. Monitoring data for 2006 through 2008 have been certified by the State; 2009 data have not yet been certified. However, Wisconsin has quality-assured all of the ambient monitoring data in accordance with 40 CFR 58.10, and has recorded it in the AQS database. The data meet the completeness criteria in 40 CFR 50, Appendix I, which require a minimum completeness of 75 percent annually and 90 percent over each three-year period. Monitoring data are presented in Table 1 below.

In addition, as discussed below with respect to the maintenance plans, WDNR has committed to continue to operate an EPA-approved monitoring network in the areas. WDNR will continue to quality assure monitoring data in accordance with 40 CFR part 58 and enter all data into AQS in accordance with Federal guidelines. In summary, EPA believes that the data show that the Manitowoc County and Door County areas have attained the 8-hour ozone NAAQS.

We have determined that Wisconsin has met all currently applicable SIP requirements for purposes of redesignation for the Manitowoc County and Door County areas under section 110 of the CAA (general SIP requirements). We are also proposing to determine that the Wisconsin SIP meets all SIP requirements for these areas currently applicable for purposes of redesignation under part D of Title I of the CAA (requirements specific to subpart 1 nonattainment areas), in accordance with section 107(d)(3)(E)(v). In addition, with the exception of the base year emissions inventories, we have approved all applicable requirements of the Wisconsin SIP for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). As discussed below, in this action EPA is proposing to approve Wisconsin's 2005 base year emissions inventories as meeting the section 172(c)(3) emissions inventory requirement for the areas.

In proposing these determinations, we have ascertained which SIP requirements are applicable to the areas for purposes of redesignation, and have determined that there are SIP measures meeting those requirements and that they are, or upon final approval of the emissions inventories, will be fully approved under section 110(k) of the CAA. As discussed more fully below, for purposes of evaluating a redesignation request, SIPs must be fully approved only with respect to requirements that became due prior to the submission of the redesignation request.

The September 4, 1992, Calcagni memorandum ( see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a State and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the State's submittal of a complete redesignation request for the area. See also the September 17, 1993, Michael Shapiro memorandum and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the State's submittal of a complete request remain applicable until a redesignation to attainment is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (Redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS).

Since EPA is proposing here to determine that the areas have attained the 1997 8-hour ozone standard, under 40 CFR 51.918, if these determinations are finalized, the requirements to submit certain planning SIPs related to attainment, including attainment demonstration requirements (the RACM requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (c)(6) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA), would not be applicable to the areas as long as they continue to attain the NAAQS and would cease to apply upon redesignation. In addition, in the context of redesignations, EPA has interpreted requirements related to attainment as not applicable for purposes of redesignation. For example, in the General Preamble EPA stated that:

Section 110(a) of Title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a State must have been adopted by the State after reasonable public notice and hearing, and, among other things, must: Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provide for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, NSR permit programs; include criteria for stationary source emission control measures, monitoring, and reporting; include provisions for air quality modeling; and provide for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain States to establish programs to address transport of air pollutants (NO X SIP Call  1 and Clean Air Interstate Rule (CAIR) (70 FR 25162, May 12, 2005)). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification. EPA believes that the requirements linked with a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one particular area in the State. Thus, we believe that these requirements should not be construed to be applicable requirements for purposes of redesignation.

Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A State remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements that are linked with a particular area's designation and classification are the relevant measures that we may consider in evaluating a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation (66 FR 50399, October 19, 2001).

We have reviewed Wisconsin's SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of the Wisconsin SIP addressing section 110 elements under the 1-hour ozone standard (40 CFR 52.2570). Further, in a submittal dated December 12, 2007, Wisconsin confirmed that the State continues to meet the section 110 requirements for the 8-hour ozone standard. EPA has not yet taken rulemaking action on this submittal; however, such approval is not necessary for redesignation.

EPA has determined that, if EPA finalizes the approval of the base year emissions inventories discussed in section VI.C. of this rulemaking, the Wisconsin SIP will meet the applicable SIP requirements for the Manitowoc County and Door County areas applicable for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 2 of part D, which includes section 182 of the CAA, establishes additional specific requirements depending on the area's nonattainment classification.

Since the Manitowoc County and Door County areas were not classified under subpart 2, of Part D at the time the redesignation requests were submitted, the subpart 2 requirements do not apply for purposes of evaluating the State's redesignation requests. The applicable subpart 1 requirements are contained in sections 172(c)(1)-(9) and in section 176.

For purposes of evaluating these redesignation requests, the applicable section 172 SIP requirements for the Manitowoc County and Door County areas are contained in sections 172(c)(1)-(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and to provide for attainment of the primary NAAQS. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Because attainment has been reached, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements are no longer considered to be applicable as long as the area continues to attain the standard until redesignation. (40 CFR 51.918).

The RFP requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of redesignation because the Manitowoc County and Door County areas have monitored attainment of the ozone NAAQS. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. In addition, because the Manitowoc County and Door County areas have attained the ozone NAAQS and are no longer subject to an RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Id.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. Wisconsin submitted 2005 base year emissions inventories on June 12, 2007. As discussed below in section VI.C., EPA is proposing to approve the 2005 base year inventories as meeting the section 172(c)(3) emissions inventory requirement for the Manitowoc County and Door County areas.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Wisconsin's current NSR program on December 17, 2008 (73 FR 76558 and 76560). Nonetheless, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Wisconsin has demonstrated that the Manitowoc County and Door County areas will be able to maintain the standard without part D NSR in effect; therefore, the State need not have a fully approved part D NSR program prior to approval of the redesignation request. The State's PSD program will become effective in the Manitowoc County and Door County areas upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached, no additional measures are needed to provide for attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we believe the Wisconsin SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability, which EPA promulgated pursuant to CAA requirements.

EPA believes that it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons. First, the requirement to submit SIP revisions to comply with the conformity provisions of the CAA continues to apply to areas after redesignation to attainment since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of Federally-approved State rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under Federal rules if State rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec. 7, 1995) (Tampa, Florida).

EPA approved Wisconsin's general and transportation conformity SIPs on July 29, 1996 (61 FR 39329), and August 27, 1996 (61 FR 43970), respectively. Section 176(c) of the CAA was amended by provisions contained in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEALU), which was signed into law on August 10, 2005 (Pub. L. 109-59). Among the changes Congress made to this section of the CAA were streamlined requirements for State conformity SIPs. Wisconsin is in the process of updating its transportation conformity SIP to meet these new requirements. Wisconsin has submitted onroad MVEBs for the Manitowoc County area of 1.76 and 1.25 tpd VOC and 3.76 and 1.86 tpd NO X for the years 2012 and 2020, respectively and MVEBs for the Door County area of 0.78 and 0.53 tpd VOC and 1.55 and 0.74 tpd NO X for the years 2012 and 2020, respectively. The areas must use the MVEBs from the maintenance plans in any conformity determination that is effective on or after the effective date of the adequacy finding and/or the maintenance plans' approval.

If EPA issues a final approval of the base year emissions inventories, EPA will have fully approved the Wisconsin SIP for the Manitowoc County and Door County areas under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request ( See page 3 of the September 4, 1992, John Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Wisconsin has adopted and submitted, and EPA has fully approved, provisions addressing various required SIP elements under the 1-hour ozone standard. In this action, EPA is proposing to approve Wisconsin's 2005 base year emissions inventories for the Manitowoc County and Door County areas as meeting the requirement of section 172(c)(3) of the CAA. No Manitowoc County or Door County area SIP provisions are currently disapproved, conditionally approved, or partially approved.

EPA finds that Wisconsin has demonstrated that the observed air quality improvement in the Manitowoc County and Door County areas is due to permanent and enforceable reductions in emissions resulting from implementation of the SIPs, Federal measures, and other State-adopted measures.

In making this demonstration, WDNR has calculated the change in emissions between 2002 and 2007. Wisconsin developed an emissions inventory for 2002, one of the years used to designate the areas as nonattainment. The State developed an attainment inventory for 2007, one of the years the Manitowoc County and Door County areas monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that Manitowoc and Door Counties and upwind areas have implemented in recent years.

The following is a discussion of permanent and enforceable measures that have been implemented in the areas:

Reductions in VOC and NO X emissions have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include the following.

Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards. These emission control requirements result in lower VOC and NO X emissions from new cars and light duty trucks, including sport utility vehicles. The Federal rules were phased in between 2004 and 2009. The EPA has estimated that, by the end of the phase-in period, the following vehicle NO X emission reductions will occur nationwide: Passenger cars (light duty vehicles) (77 percent); light duty trucks, minivans, and sports utility vehicles (86 percent); and, larger sports utility vehicles, vans, and heavier trucks (69 to 95 percent). VOC emission reductions are expected to range from 12 to 18 percent, depending on vehicle class, over the same period. Some of these emission reductions occurred by the 2007-2009 period used to demonstrate attainment, and additional emission reductions will occur during the maintenance period.

Heavy-Duty Diesel Engine Rule. EPA issued this rule in July 2000. This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007 which further reduced the highway diesel fuel sulfur content to 15 ppm, leading to additional reductions in combustion NO X and VOC emissions. This rule is expected to achieve a 95 percent reduction in NO X emissions from diesel trucks and busses.

Non-Road Diesel Rule. EPA issued this rule in 2004. This rule applies to diesel engines used in industries, such as construction, agriculture, and mining. It is estimated that compliance with this rule will cut NO X emissions from non-road diesel engines by up to 90 percent. This rule is currently achieving emission reductions, but will not be fully implemented until 2010.

Maximum Achievable Control Technology (MACT) Rules. EPA has promulgated numerous MACT standards, many of which limit VOC emissions. Compliance began for many of the MACT rules from late 2005 through 2007.

NO X Reasonably Available Control Technology (RACT). Wisconsin adopted NO X RACT regulations for the upwind Milwaukee-Racine area. The emission requirements apply to stationary combustion units at major sources, with compliance required by May 1, 2009. The RACT rule is estimated to achieve reductions of over 29,000 tpy of NO X emissions from 2002 levels.

NO X SIP Call. On October 27, 1998 (63 FR 57356), EPA issued a NO X SIP Call requiring the District of Columbia and 22 States to reduce emissions of NO X . Affected States were required to comply with Phase I of the SIP Call beginning in 2004, and Phase II beginning in 2007. The reduction in NO X emissions has resulted in lower concentrations of transported ozone entering the Manitowoc County and Door County areas. Emission reductions resulting from regulations developed in response to the NO X SIP Call are permanent and enforceable.

States are required to develop periodic emissions inventories every three years. (40 CFR part 51, subpart A). Wisconsin is using the periodic emissions inventory from 2002 as the nonattainment inventory. Point source sector emissions inventories were developed using reported point source emissions, EPA's Clean Air Markets database and approved EPA techniques for emissions calculations. Emissions were estimated by collecting process-level information from each facility that qualifies for inclusion into WDNR's point source database. Process, boiler, fugitive and tank emissions were typically calculated using throughput information multiplied by an emission factor for the process. Emission factor sources included mass balance, stack testing, continuous emissions monitors, engineering judgment and EPA's Factor Information Retrieval database.

Area source emissions were generated by backcasting from the 2005 periodic emissions inventory to minimize differences between the nonattainment and attainment inventories due to changes in methodology. The backcasting factors were based on 2002-2008 growth factors including the Census Bureau's County Business Pattern employment data, growth factors developed for the Lake Michigan Air Directors Consortium (LADCO) by E.H. Pechan & Associates, Inc. (Pechan); and the Economic Growth Analysis System (EGAS6.0). Area source emissions estimates for the 2005 periodic inventory were calculated using population, gasoline consumption, employment, crop acreages, and other activity surrogates. The results of an EPA Solvent Mass Balance study were used to estimate emissions for some categories. Emission factors were derived from local data, local or national surveys and EPA guidance for the development of emissions inventories. Point source emissions were subtracted from total category specific area source emissions to prevent double counting.

Nonroad mobile source emissions were calculated using EPA's National Mobile Inventory Model (NMIM) and emissions estimates developed for commercial marine vessels, aircraft, and railroads (MAR), three nonroad categories not included in NMIM. Before NMIM was run, the following modifications and additions were made to the NMIM input data: (1) Revised activity data for construction equipment using updates provided by Pechan; (2) revised allocation data for recreational marine equipment using updates provided by ENVIRON International Corporation (ENVIRON); (3) added emission factors for diesel tampers/rammers provided by Pechan; (4) revised population data for construction and recreational marine equipment using updates provided by Pechan and ENVIRON, respectively; (5) revised growth rates using updates provided by Pechan; and (6) revised gasoline parameters, including Reid Vapor Pressure, oxygenate content and sulfur content, using updates provided by the States and Pechan. Onroad mobile source emissions were calculated using the MOBILE6.2 emissions model.

Wisconsin developed a 2007 attainment year inventory using the methodologies described above to estimate point, nonroad mobile and onroad mobile sector emissions. Area source emissions were generated by applying growth factors and applicable emission controls to the 2005 area source sector inventory. Growth factors include the Census Bureau's County Business Pattern employment data, growth factors developed for LADCO by Pechan; and EGAS6.0.

Using the inventories described above, Wisconsin's submittal documents changes in VOC and NO X emissions from 2002 to 2007 for the Manitowoc County and Door County areas. Because Manitowoc and Door Counties are impacted by transport, WDNR also documented emissions reductions for the upwind Wisconsin areas of Sheboygan and Milwaukee-Racine. Emissions data are shown in Tables 2 through 6 below.

Table 4 shows that the Manitowoc County area reduced VOC emissions by 1.85 tpd and NO X emissions by 2.32 tpd between 2002 and 2007. Table 5 shows that the Door County area reduced VOC emissions by 1.23 tpd and NO X emissions by 2.17 tpd between 2002 and 2007. In addition, as shown in Table 6, the upwind areas of Sheboygan and Milwaukee-Racine reduced VOC emissions by 39.90 tpd and NO X emissions by 125.08 tpd between 2002 and 2007. Based on the information summarized above, Wisconsin has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions.

In conjunction with its requests to redesignate the Manitowoc County and Door County nonattainment areas to attainment status, Wisconsin submitted SIP revisions to provide for the maintenance of the 8-hour ozone NAAQS in the areas through 2020.

Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations.

The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum clarifies that an ozone maintenance plan should address the following items: the attainment VOC and NO X emissions inventories, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.

The WDNR developed emissions inventories for 2007, one of the years used to demonstrate monitored attainment of the 8-hour NAAQS, as described above. The attainment level of emissions is summarized in Table 3, above.

Along with the redesignation requests, WDNR submitted revisions to the Wisconsin 8-hour ozone SIP to include maintenance plans for the Manitowoc County and Door County areas, as required by section 175A of the CAA. These demonstrations show maintenance of the 8-hour ozone standard through 2020 by showing that current and future emissions of VOC and NO X for the areas remain at or below attainment year emission levels. A maintenance demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003).

Wisconsin is using emissions inventory projections for the years 2012 and 2020 to demonstrate maintenance. Emissions estimates were generated for point sources, area sources, and the MAR portion of the nonroad mobile sector by applying growth factors and applicable emission controls to the 2005 emissions inventory. The 2005 emissions inventory was developed following the same methodologies described for the 2002 inventory, in section VI.A.3.b., above. Growth factors include the Census Bureau's County Business Pattern employment data, growth factors developed for LADCO by Pechan; and EGAS6.0. Growth factors were only available for emission projections to 2018. Emissions for 2020 were estimated using linear interpolation from 2018. For Electric Generating Unit (EGU) point sources, projections were performed on a facility by facility basis. The growth in generation emissions considers corporate utility growth in electricity demand and the potential dispatch by the regional Midwest Independent Transmission System Operator to meet broader demand. The growth in electricity consumption by load type is based on growth rate projections by the Wisconsin Public Service Commission and historic growth rates. Nonroad mobile emissions, excluding MAR, were calculated using NMIM with the modifications and additions to the input data described in section VI.A.3.b., above. Onroad mobile source emissions were calculated using the MOBILE6.2 emissions model. Emissions data are shown in Tables 7 through 11, below.

The emission projections show that Wisconsin does not expect emissions in the Manitowoc County and Door County areas to exceed the level of the 2007 attainment year inventory during the maintenance period, even without implementation of CAIR. ( See also discussion below.) As shown in Table 9, VOC and NO X emissions in the Manitowoc County area are projected to decrease by 0.99 tpd and 3.88 tpd, respectively, between 2007 and 2020. As shown in Table 10, VOC and NO X emissions in the Door County area are projected to decrease by 2.96 tpd and 1.27 tpd, respectively, between 2007 and 2020. In addition, as shown in Table 11, VOC and NO X emissions in the upwind areas of Sheboygan and Milwaukee-Racine are projected to decrease by 16.20 tpd and 66.63 tpd, respectively, between 2007 and 2020.

In addition, LADCO performed a regional modeling analysis to address the effect of the recent court decision vacating CAIR. This analysis is documented in LADCO's “Regional Air Quality Analyses for Ozone, PM2.5, and Regional Haze: Final Technical Support Document (Supplement), September 12, 2008.” LADCO produced a base year inventory for 2005 and future year inventories for 2009, 2012, and 2018. To estimate future EGU NO X emissions without implementation of CAIR, LADCO projected 2007 EGU NO X emissions for all States in the modeling domain based on Energy Information Administration growth rates by State (North American Electric Reliability Corporation (NERC) region) and fuel type for the years 2009, 2012 and 2018. The assumed 2007-2018 growth rates were 8.8% for Illinois, Iowa, Missouri and Wisconsin; 13.5% for Indiana, Kentucky, Michigan and Ohio; and 15.1% for Minnesota. Emissions were adjusted by applying legally enforceable controls, e.g., consent decree or rule. EGU NO X emissions projections for the States of Illinois, Indiana, Michigan, Ohio, and Wisconsin are shown below in Table 12. The emission projections used for the modeling analysis do not account for certain relevant factors such as allowance trading and potential changes in operation of existing control devices. The NO X projections indicate that, due to the NO X SIP Call, certain State rules, consent decrees resulting from enforcement cases, and ongoing implementation of a number of mobile source rules, EGU NO X is not expected to increase in Wisconsin, or any of the States in the immediate region, and overall NO X emissions in Wisconsin, and the nearby region are expected to decrease substantially between 2005 and 2020. 2 Total NO X emissions projections are shown in Table 13, below.

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the Mohave ground squirrel from government agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Historical and current survey information on the Mohave ground squirrel, including survey methods and design, time of year, weather information, time of day, site selection method, and descriptions of physical characteristics of landscapes, soil, and vegetation.

(3) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq. ), which are:

(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

(4) Information on management programs for the conservation of the Mohave ground squirrel.

(5) Information on current or expected future development within the range of the Mohave ground squirrel, including but not limited to: the extent or magnitude of habitat loss, degradation, or fragmentation from development for energy, transportation, agriculture, military training; land management prescriptions; or recreation, and how they may affect the conservation of the Mohave ground squirrel.

(6) Information on the population status of predators of the Mohave ground squirrel, including information on the occurrence and extent/severity of predation by coyotes, house cats, common ravens, domestic dogs, and feral dogs on the Mohave ground squirrel, and the effect of this predation on the Mohave ground squirrel's long-term survival.

(7) Information on morphological, behavioral, genetic, or ecological variability in the Mohave ground squirrel, and any change in that variability.

(8) Information on environmental change within the range of the Mohave ground squirrel.

(9) Information on the importance of certain areas or populations to the long-term conservation of the Mohave ground squirrel that may help us identify potentially significant portions of the species' range. This may include information that demonstrates the following factors are important to a portion of the Mohave ground squirrel's range:

(a) The quality, quantity, and distribution of habitat relative to the biological requirements of the species;

(b) The historical values of the habitat to the species;

(c) The frequency of use of the habitat; and

(d) The uniqueness or importance of the habitat for other reasons, such as breeding, feeding, seasonal movements, wintering, or suitability for population expansion, or for genetic diversity.

Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include.

If, after the status review, we determine that listing the Mohave ground squirrel is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act), in accordance with section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the Mohave ground squirrel, we request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species”;

(2) Where these features are currently found; and

(3) Whether any of these features may require special management considerations or protection, including managing for the potential effects of climate change.

In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential for the conservation of the species.” Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the definition of critical habitat in section 3 of the Act and the requirements of section 4 of the Act.

Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning this finding by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov , your entire submission—including any personal identifying information—will be posted on the website. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public view. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov .

Information and supporting documentation that we received and used in preparing this finding, will be available for public inspection at http://www.regulations.gov , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the Federal Register .

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a review of the status of the species, which is subsequently summarized in our 12-month finding.

On September 5, 2005, we received a petition, dated August 30, 2005, from Defenders of Wildlife and Dr. Glenn R. Stewart to list the Mohave ground squirrel as endangered, and to designate critical habitat concurrently with the listing. The petition identified the scientific name for Mohave ground squirrel as S permophilus mohavensis ; however, the name was changed in 2009 to Xerospermophilus mohavensis (Helgen et al. 2009, p. 273), and we refer to it in this petition finding by its current name. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). The petition contained detailed information on the natural history and biology of the Mohave ground squirrel, and the current status and distribution of the species. It also contained information on what the petitioners reported as potential threats to the species. In a March 28, 2006, letter to the petitioners, we informed them that we would not be able to address their petition at that time because further action on the petition was precluded by court orders and settlement agreements for other listing actions that required us to use nearly all of our listing funds for fiscal year 2006. We also stated our initial review of the petition did not indicate that an emergency situation existed and that emergency listing was not necessary.

On December 13, 1993, the Service received a petition dated December 6, 1993, from Dr. Glenn R. Stewart of California Polytechnic State University, Pomona, California, requesting the Service to list the Mohave ground squirrel as a threatened species. At that time, the species was a category 2 candidate (November 15, 1994; 59 FR 58988), and was first included in this category on September 18, 1985. Category 2 included taxa for which information in the Service's possession indicated that listing the species as endangered or threatened was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed listing rule. On September 7, 1995, we published our 90-day petition finding, which determined that the 1993 petition did not present substantial information indicating that the petitioned action may be warranted (60 FR 46569).

The Mohave ground squirrel ( Xerospermophilus mohavensis ) is a distinct, full species with no recognized subspecies. The petitioners presented sufficient, reliable information related to the taxonomic status of the Mohave ground squirrel. It was discovered in 1886 by F. Stephens and described as a distinct monotypic species by Merriam (1889, p. 15). The type locality is near Rabbit Springs in the Lucerne Valley, San Bernardino County, California.

The Mohave ground squirrel is a medium-sized squirrel. Total length is approximately 23 centimeters (cm) (9 inches (in)) with a tail length of 6.4 cm (2.5 in). The upper body is grayish brown, pinkish gray, cinnamon gray, and pinkish cinnamon without stripes or flecking. The underparts of the body and the tail are white (Ingles 1965, p. 171). The skin is darkly pigmented and dorsal hair tips are multi-banded.

The closest relative of the Mohave ground squirrel is the round-tailed ground squirrel ( Xerospermophilus tereticaudus ). It has a contiguous, but not overlapping, geographic range with the Mohave ground squirrel.

The Mohave ground squirrel mating season occurs from mid-February to mid-March (Harris and Leitner 2004, p. 1). Recht (c.f. Gustafson 1993, p. 83) reported that male Mohave ground squirrels are territorial during the mating season. Females may enter male Mohave ground squirrel territory and remain for 1 or 2 days. After copulation, the females establish their own home ranges. John Harris (personal communication, Mills College, Oakland, CA, as cited in the petition, p. 14) observed male Mohave ground squirrels staking out the overwintering sites of females to mate with them when they emerged.

Gestation is about 30 days with litter size ranging from four to nine (Best 1995, p. 3). Parental care continues through mid-May, with juvenile Mohave ground squirrels emerging above ground between 10 days to 2 weeks later (Gustafson 1993, p. 84). Mortality for juveniles is high during the first year with more male Mohave ground squirrels lost than females. Female Mohave ground squirrels can breed at 1 year of age if environmental conditions are favorable (Leitner and Leitner 1998, p. 28).

The reproductive success of the Mohave ground squirrel is dependent on the amount of fall and winter precipitation. Leitner and Leitner (1998, p. 20) found a positive correlation between fall and winter rainfall and recruitment of juvenile squirrels the following year. In a low rainfall year, Mohave ground squirrels may forego breeding, or the low availability of food due to low rainfall may cause reproductive failure (Leitner and Leitner 1998, p. 29).

The presumed historical range of the Mohave ground squirrel, which is based on the current range and historical locations of suitable habitat, is the northwest portion of the Mojave Desert in parts of Inyo, Kern, Los Angeles, and San Bernardino Counties, California. This area is bounded on the south and west by the San Gabriel, Tehachapi, and Sierra Nevada ranges, and on the northeast by the Owens Lake and Coso, Slate, Quail, Granite, and Avawatz Mountains. The southeastern edge of the historical range is bordered by the Mojave River with the exception of one locality east of the Mojave River in the Lucerne Valley. The historical range of the Mohave ground squirrel is assumed to have included that area of the Antelope Valley west of the communities of Palmdale, Lancaster, Rosamond, and Mojave, although there are no records of the species being sighted or captured there.

The current range of the Mohave ground squirrel is similar to the historical range, except it excludes the western portion of the Antelope Valley in Los Angeles and Kern Counties and possibly some of the area from Victorville to the south and southeast to Lucerne Valley in San Bernardino County. Urban and agricultural development in these areas has resulted in the loss or modification of Mohave ground squirrel habitat. The Mohave ground squirrel has the smallest range of any ground squirrel species in the United States. Gustafson (1993, p. 8) states the geographic range of the Mohave ground squirrel encompasses approximately 1,968,000 hectares (ha) (4,863,000 acres (ac)).

The active season for the Mohave ground squirrel is short, generally from early March to August (Bartholomew and Hudson 1960, p. 194), but may begin as early as mid-January to late February. Initiation depends on temperature and elevation (Gustafson 1993, p. 19). During this time, Mohave ground squirrels must mate, gather enough nutrition to produce and sustain a litter, and ensure nutritional reserves to last during the inactive season. During the inactive season, Mohave ground squirrels exist in their burrows in a state of torpor (a state of reduced physiological activity or sluggishness) to conserve their reserves of energy and water.

The length of the active season varies by sex, age, and availability of food resources. In dry years, which are often non-reproductive years, Mohave ground squirrels may enter their state of torpor as early as spring (Leitner et al . 1995, p. 83). The active season for an adult is shorter than for a juvenile as adults do not need to acquire as much energy for the inactive season as juveniles do. The active season for an adult female is generally longer than for a male because females need to acquire additional energy for litter production and lactation (Leitner et al . 1997, pp. 114-115).

Mohave ground squirrels are diurnal; they spend much of the day above ground (Recht 1977, p. 56). As temperatures increase into the spring and early summer, Mohave ground squirrels will spend more time in the shade of shrubs or briefly use their burrows. Burrows are usually located beneath large shrubs. Mohave ground squirrels may use several burrows at night throughout a season; they also use other burrows for predator avoidance and temperature regulation. The burrow used for the inactive season is dug specifically for that period (Recht 1977, p. 9).

Mohave ground squirrels exhibit a behavior called natal dispersal. Upon dispersing from the burrow where they were born, some males will move and take up residence at least 1,009 meters (m) (3,280 feet (ft)) from the natal burrow while females move a shorter distance of 200 to 300 m (650 to 980 ft) from their natal burrows (Leitner and Leitner 1998, p. 34; Harris and Leitner 2005, p. 191).

The home range of the Mohave ground squirrel varies among years and between sexes during the mating season. The mean home range is 0.74 ha (1.83 ac) for mating females and 6.73 ha (16.63 ac) for males. Outside the breeding season, the mean home range size is 1.20 ha (2.96 ac) for females and 1.24 ha (3.06 ac) for males (Harris and Leitner 2004, pp. 520-521).

The behavioral characteristics of the Mohave ground squirrel, as discussed above, make it difficult to determine or estimate population status and trends because the species spends much of the year underground and populations appear to be sensitive to both seasonal and annual rainfall patterns. That is, in dry years or dry fall seasons, reproduction during the following spring season may be unsuccessful and population size may contract (Leitner and Leitner 1998, pp. 29-31).

Survey results suggest that the Mohave ground squirrel has a patchy distribution throughout its range (Hoyt 1972, p. 7; Gustafson 1993, p. viii). Most reported information describes the number of animals trapped or number trapped as compared to the trapping effort. We are aware of only one location where information on population trend was available (Leitner 2005, p. 3). In the northwest portion of the range of the Mohave ground squirrel, trapping results are available for the Coso Range within China Lake Naval Air Weapons Station (NAWS). The surveys span 1992 to 1996 and 2001 to 2005. The total number of Mohave ground squirrels captured during the first survey period was more than twice that of the second (Leitner 2005, p. 3).

Brooks and Matchett (2002) analyzed the data from all known Mohave ground squirrel studies. Forty-nine percent of the sites were identified from observing or trapping only one animal.

The habitat requirements of the Mohave ground squirrel are varied. The species has been found in a variety of vegetative communities including Mojave Creosote Scrub, Desert Saltbush Scrub, Desert Sink Scrub, Desert Greasewood Scrub, Shadscale Scrub, and Joshua Tree ( Yucca brevifolia ) Woodland (Gustafson 1993, pp. ix, 81). Creosote Bush Scrub is the vegetation community in which the Mohave ground squirrel is most often found. Mohave ground squirrels usually inhabit flat to moderately sloping terrain. They prefer deep rather than shallow soils and gravelly soils rather than sandy soils (Aardahl and Roush 1985, p. 23). Soil characteristics are important as the Mohave ground squirrel constructs burrows for temperature regulation, predator avoidance, and inactive season use.

The food habits of the Mohave ground squirrel are diverse. Recht (1977, p. 80) called the Mohave ground squirrel a facultative specialist; its foraging strategy falls between that of a specialist and a generalist. The Mohave ground squirrel specializes in foraging on certain plant species over short periods of time. As the availability of forage species changes throughout the active season, the Mohave ground squirrel adapts its foraging strategy to maximize energy intake in a changing environment. Observations and fecal analysis indicate that Mohave ground squirrels consume a variety of annual and perennial plants and arthropods (Leitner and Leitner 1992, p. 12; Gustafson 1993, pp. 77-83). At one study site, the leaves of three shrub species made up 60 percent of the Mohave ground squirrel diet based on fecal analysis (Leitner and Leitner 1998, p. 34). In a study by Leitner and Leitner (1992) in the northern part of its range, the Mohave ground squirrel was found to consume leaves of annual and perennial plants, their fruits and seeds, fungi, and butterfly larvae. Mohave ground squirrels appear to exploit food sources that are available on an intermittent basis. They may also select particular food items over others because of higher water content. Leitner and Leitner (1992, p. 25) concluded that the Mohave ground squirrel is flexible in exploiting high-quality food resources.

There is little documentation on the natural predators of the Mohave ground squirrel. There is circumstantial evidence of predation by coyotes ( Canis latrans ), prairie falcons ( Falco mexicanus ), and common ravens ( Corvus corax ) (Leitner et al . 1997, p. 49; J. Harris, personal communication, as cited in the petition, p. 15). There may be other natural predators of the Mohave ground squirrel.

Mortality is high for the Mohave ground squirrel during the first year and appears to be skewed toward males (Brylski et al . 1994, p. 64; Leitner and Leitner 1998, p. 28). Mortality may also be caused by extended periods of low amounts of fall and winter rainfall, which results in reduced availability of forage and water, and can increase vulnerability to disease.

Section 4 of the Act (16 U.S.C. 1533), and implementing regulations at 50 CFR 424, set forth the procedures for adding species to, or removing a species from, 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: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

In making this 90-day finding, we evaluated whether information on threats to the Mohave ground squirrel, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

The petitioners presented information regarding threats to the Mohave ground squirrel from reduced range and habitat destruction, including: urban and rural development on private and public lands; agricultural development; military activities; livestock grazing; transportation; energy development; and that the cumulative impacts of drought, habitat destruction, habitat fragmentation, and decrease in precipitation with climate change pose a threat greater than the drought episodes to which the Mohave ground squirrel is adapted.

The range of the Mohave ground squirrel is the smallest of all ground squirrels in the United States. Based on information provided by the petitioners, the Mohave ground squirrel appears to have been nearly extirpated from the southern portion of its range, which represents approximately 20 percent of its range (Leitner as cited in the petition, p. 8). This assertion is based on the results of surveys conducted for the Mohave ground squirrel from 2002 to 2004 (Leitner 2004 as cited in the petition, p. 17). The portion of the recently reduced range includes an area south of State Highway 58 in the Palmdale-Lancaster area and the Victorville to Lucerne Valley area.

On private lands, which comprise about 31 percent of the current range of the Mohave ground squirrel, the petitioners claim 2.8 percent of the range of the Mohave ground squirrel has been lost to urban and rural development and approximately 2 percent (37,000 ha (92,000 ac)) to agricultural fields. The information on impacts to the Mohave ground squirrel from agricultural development was derived from Hoyt (1972, p. 8), Aardahl and Roush (1985, p. 2), and Gustafson (1993, pp. 23-24). The petitioners also stated that they have no updated data to quantify the extent or intensity of this threat. We have no information in our files to dispute the figures presented by the petitioners; however, we currently do not have information to determine whether a 2.8 percent loss to urban and rural development and a 2 percent loss to agricultural development is biologically significant to the Mohave ground squirrel.

Public lands managed by the Bureau of Land Management (BLM) account for about 31.8 percent of the species' range. The petitioners stated that BLM's land management plan for the West Mojave Desert (West Mojave Plan) would allow new development throughout much of the range of the Mohave ground squirrel and would not protect the four Mohave ground squirrel “core areas” (see petition, p. 17). “Core areas” are defined by the petitioners as locations where Mohave ground squirrels have been reliably captured over time, or where there are thriving populations. The petitioners stated that activities that result in the loss of habitat in these “core areas” or prevent dispersal among these “core areas” will impede and eventually prohibit conservation of the Mohave ground squirrel.

Public land managed by the Department of Defense accounts for about 34.5 percent of the species' current range. The petitioners stated that current military training at Fort Irwin threatens Mohave ground squirrels by crushing animals, compacting and otherwise disturbing soils, collapsing burrows, destroying shrubs used for cover, and reducing spring annual plants used by Mohave ground squirrels for forage (Bury et al . 1977, pp. 16, 18). According to the petitioners, Fort Irwin's training currently affects 7.4 percent of the range of the Mohave ground squirrel, and the proposed expansion of Fort Irwin will affect additional lands within the range of the Mohave ground squirrel and will fragment one of the four Mohave ground squirrel “core areas” as identified by the petitioners.

Additionally, 2.7 percent of the current range of the Mohave ground squirrel occurs on other public ‘protected lands' (see petition, p. 40) including; federally designated wilderness areas, State park land, California Department of Fish and Game land, and the Desert Tortoise Natural Area.

The petitioners stated that livestock grazing has the potential to degrade Mohave ground squirrel habitat through changes in soil structure, including accelerated erosion and collapsing burrows, changes in vegetative structure, reduced availability of native forage species (Laabs 2002, p. 5; Campbell 1988, pp. 569, 574), and direct competition with Mohave ground squirrels for limited quality and quantity of forage (Leitner and Leitner 1998; pp. 29, A6, A7, A15, and A23). According to the petitioners' GIS analysis, 27 percent of the range of the Mohave ground squirrel has been impacted by livestock grazing.

Aardahl and Roush (1985, p. 23), as cited in the petition, stated that “land uses which affect the availability of forbs and grasses have the potential to influence the long-term population of the Mohave ground squirrel,” but this does not “mean that properly managed livestock grazing will cause a significant negative impact on the Mohave ground squirrel.” Twenty-one of 22 study sites surveyed were grazed by sheep or cattle in varying degrees; the study site with the highest total adjusted captures of Mohave ground squirrels showed considerable signs of grazing (Aardahl and Roush 1985, p. 23). The petitioners did not provide information, and we have no information in our files, on the extent or magnitude of the impacts of livestock grazing on the Mohave ground squirrel.

The petitioners identified the extensive network of highways and roads in the range of the Mohave ground squirrel as a threat. The petitioners claim impacts from highway and road establishment and vehicle use include habitat loss, fragmentation, and degradation, and direct mortality from vehicle strikes (Gustafson 1993, pp. 23, 26; BLM 2003, p. 30; Leitner as cited in the petition, p. 22). The petitioners stated that there is evidence of surface disturbance to roadsides up to 400 m (1,312 ft) away from the road, and that 37 percent of transects conducted by the BLM in the West Mojave Desert were bisected by roads. The petitioners calculated that the total area of the network of roads and highways affected 65,964 ha (163,000 ac) or 3.3 percent of the range of the Mohave ground squirrel. The petitioners provided additional information that impacts from roads on the desert tortoise have been documented more than 3,962 m (13,000 ft) from the highest level traffic road (Hoff and Marlow 2002, p. 454) and that similar impacts likely occur to the Mohave ground squirrel.

We do not agree that impacts to the desert tortoise from roads that have been measured more than 3,962 m (13,000 ft) from the highest traffic roads are the same as those to the Mohave ground squirrel. The Hoff and Marlow study (2002, p. 454) reported on the abundance of desert tortoise sign at intervals from roads. This study was specific to the desert tortoise. It did not examine the effects of roads on the Mohave ground squirrel. Therefore, any application of the results from this research to the Mohave ground squirrel is inferred and is not supported by the data. However, we agree with the petitioners that roads and highways result in direct mortality to Mohave grounds squirrels from vehicle collisions and habitat loss and degradation.

According to the petitioners, geothermal exploration and development and the construction of solar energy plants in the range of the Mohave ground squirrel have caused, and will likely cause, adverse impacts to the Mohave ground squirrel and loss or degradation of habitat (Leitner and Leitner 1989, p. 2). The petitioners did not quantify the amount of habitat affected. We acknowledge that energy development for geothermal and solar energy has occurred within the range of the Mohave ground squirrel and that this development can result in the degradation or loss of habitat used by the Mohave ground squirrel. The petitioners do not provide information, and we do not have information in our files, on the extent of this loss or degradation and how it will affect the conservation of the Mohave ground squirrel.

The petitioners provided information that indicates the reproduction and survival of the Mohave ground squirrel is ultimately linked to rainfall (Harris and Leitner 2004, pp. 517, 518). Mohave ground squirrels may fail to persist in certain areas during drought episodes (Leitner and Leitner 1998, p. 31). The petitioners assert the cumulative impacts of habitat destruction, habitat fragmentation, and overall decrease in precipitation due to climate change are a greater threat to the Mohave ground squirrel than the periods of low rainfall and drought episodes with which the Mohave ground squirrel evolved.

Based on information from the Intergovernmental Panel on Climate Change (Watson et al . 2002, pp. 8, 9), we acknowledge temperatures in southern California are likely to increase and precipitation is likely to decrease in the future. With hotter, drier conditions and more extreme weather patterns in southern California than those with which the Mohave ground squirrel evolved, the species may be negatively affected. However, we believe that climate change models that are currently available are not yet capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel (Parmesan and Matthews 2005, p. 354). We are not currently aware of models that predict how climate in the range of the Mohave ground squirrel will change, and we do not know how any change may alter the range of, or otherwise threaten, the species.

In summary, the petitioners presented information regarding threats to the Mohave ground squirrel from reduced range and habitat destruction, including: urban and rural development on private and public lands; agricultural development; military activities; livestock grazing; transportation; and energy development. We found the petition and information in our files presents substantial information that these activities may have contributed to a recent range contraction in the southern portion of the Mohave ground squirrel's range, and may threaten the Mohave ground squirrel across its current range by removing shrubs needed for cover and forage, disturbing soil, or removing or degrading other habitat features necessary for Mohave ground squirrel life history requirements. Additionally, one or more of these activities may threaten what the petitioners identify as “core areas” for the Mohave ground squirrel by removing habitat, fragmenting the habitat, and preventing dispersal among the “core areas.” However, we determined the petition does not present substantial information indicating that climate change may be a threat to the species. Additionally, information on the subject of climate change in our files is not specific to the Mohave ground squirrel. We will evaluate the effects of climate change, including reduced precipitation and any cumulative effects of habitat fragmentation or loss on the Mohave ground squirrel, when we conduct our status review.

On the basis of our evaluation of the information in the petition and information in our files, we determined that the petition presents substantial information indicating that listing the Mohave ground squirrel as endangered may be warranted due to destruction, modification, or curtailment of the species' habitat or range.

The petitioners did not provide information or list any threats to the Mohave ground squirrel from overutilization for commercial, recreational, or educational purposes. The petitioners stated that the utilization of the Mohave ground squirrel for scientific purposes is strictly controlled by the California Department of Fish and Game.

On the basis of our evaluation, we determined that the petition does not present substantial information indicating that listing the Mohave ground squirrel as endangered may be warranted due to the overutilization for commercial, recreational, scientific, or educational purposes. Additionally, we do not have substantial information in our files to suggest that overutilization for commercial, recreational, scientific, or educational purposes may threaten the Mohave ground squirrel. However, we will evaluate all factors, including threats from overutilization for commercial, recreational, scientific, or educational purposes, when we conduct our status review.

The petitioners did not provide information or list any threat to the Mohave ground squirrel from disease, and we do not have information in our files regarding potential threats to this species due to disease.

The petitioners stated that there is little documentation of the Mohave ground squirrel's natural predators, but claimed that predation by coyotes, common ravens, house cats, domestic dogs, and feral dogs is a concern. Although the petitioners stated that cats prey on small mammals and dogs dig up rodent burrows, they did not present any information on the level of mortality or population impacts from predation for Mohave ground squirrels, any other ground squirrel species, or any small mammal species. The petitioners noted that the numbers of common ravens and coyotes, known predators of the Mohave ground squirrel, have increased, posing an increased predation risk to Mohave ground squirrel populations. However, there is no information provided that the numbers of cats, dogs, common ravens, or coyotes have increased in the range of the Mohave ground squirrel, and there is no evidence to indicate that there is increased predation by these predators on the Mohave ground squirrel. We do not have information in our files to indicate that predation is a threat to the survival of the Mohave ground squirrel.

On the basis of our evaluation, we determined that the petition does not present substantial information indicating that listing the Mohave ground squirrel as endangered may be warranted due to disease or predation. Additionally, we do not have substantial information in our files to suggest that disease or predation threaten the Mohave ground squirrel. However, we will evaluate all factors, including threats from disease and predation, when we conduct our status review.

The petitioners stated that current regulations have proven inadequate to conserve the Mohave ground squirrel; that only 9 percent of the range of the Mohave ground squirrel has any kind of protected status; and that, although the Mohave ground squirrel is a State-listed species, this listing provides no conservation assurances for the Mohave ground squirrel on Federal lands.

The California Endangered Species Act provides protection for the Mohave ground squirrel on private and State-owned land, and on Federal lands in relation to activities carried out by non-Federal entities that are required to obtain a State permit or authorization.

The major military installations within the range of the Mohave ground squirrel have implemented Integrated Natural Resources Management Plans that cover the Mohave ground squirrel and implement actions to manage for the species. In their management plan for the West Mojave Desert, the BLM considers the Mohave ground squirrel an umbrella species, a species whose habitat requirements include those of many other species and whose conservation should automatically conserve a host of other species. BLM has implemented a plan that establishes a Mohave ground squirrel Conservation Area that contains 35 percent of the species' historical range on BLM land.

On the basis of our evaluation, we determined that the petition does not present substantial information indicating that listing the Mohave ground squirrel as endangered may be warranted due to the inadequacy of existing regulatory mechanisms. Additionally, we do not have substantial information in our files to suggest that existing regulatory mechanisms are inadequate and thus threaten the Mohave ground squirrel. However, we will evaluate all factors, including threats from the inadequacy of existing regulatory mechanisms, when we conduct our status review.

The petitioners stated that pesticide use may adversely affect the Mohave ground squirrel. According to the petitioners, Mohave ground squirrels live in native vegetative communities adjacent to agricultural fields and other areas where rodenticides are used. Mohave ground squirrels use these areas for forage and shelter. The petitioners claim that if rodenticides are used on agricultural fields, Mohave ground squirrels could be adversely affected, or they could be exterminated by the State Rodent Program. In the early part of the 20th century, the Los Angeles Agricultural Commission used poison grain to target and eliminate ground squirrels in the Antelope Valley, which includes the historical range of the Mohave ground squirrel.

Although we are aware that rodenticides, such as those that include strychnine as the active ingredient, may be used to kill ground squirrels, there is no information in the petition or our files to indicate that rodenticides are used to specifically target Mohave ground squirrels or that any rodenticides currently used within the range of the Mohave ground squirrel are adversely affecting the status of this species.

On the basis of our evaluation, we determined that the petition does not present substantial information indicating that listing the Mohave ground squirrel as endangered may be warranted due to other natural or manmade factors affecting its continued existence. Additionally, we do not have substantial information in our files to suggest that other natural or manmade factors threaten the Mohave ground squirrel. However, we will evaluate all factors, including threats from other natural or manmade factors affecting its continued existence, when we conduct our status review.

The petition and supporting information have identified numerous factors affecting the Mohave ground squirrel, including: reduced range, urban and rural development, agricultural development, military activities, livestock grazing, transportation and energy development, and cumulative impacts of habitat destruction, fragmentation, and decreased precipitation (Factor A); predation (Factor C); the lack of regulatory mechanisms protecting the species and its habitat (Factor D); and pesticide use (Factor E).

On the basis of our evaluation under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the Mohave ground squirrel as endangered may be warranted. This finding is based on information provided by the petitioners and in our files for Factor A. In particular, there is substantial information to indicate habitat based threats under Factor A may remove shrubs needed for cover and forage, disturb soil, or remove or degrade other habitat features necessary for Mohave ground squirrel life history requirements across its current range. The information provided by the petitioners and in our files for Factors B, C, D, and E was not substantial. In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.

Because we have found that the petition presents substantial information that listing the Mohave ground squirrel may be warranted, we are initiating a status review to determine whether listing the Mohave ground squirrel under the Act is warranted. We will issue a 12-month finding as to whether the petitioned action is warranted.

The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.

The petitioners also requested that we designate critical habitat for the Mohave ground squirrel. If we determine in our 12-month finding that listing the Mohave ground squirrel is warranted, we will address the designation of critical habitat at the time of the proposed rulemaking.

A complete list of all references cited is available on the Internet at http://www.regulations.gov and upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section above).

The primary authors of this notice are staff members of the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section above).

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

The International Pacific Halibut Commission (IPHC) and National Marine Fisheries Service (NMFS) manage fishing for Pacific halibut ( Hippoglossus stenolepis ) through regulations established under authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the Pacific halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, D.C., on March 29, 1979).

Regulations developed by the IPHC are subject to approval by the Secretary of State with concurrence of the Secretary of Commerce (Secretary). After approval by the Secretary of State and the Secretary, the IPHC regulations are published in the Federal Register as annual management measures pursuant to 50 CFR 300.62. The current IPHC annual management measures were published on March 19, 2009 (74 FR 11681). IPHC regulations affecting sport fishing for halibut and charter vessels in Areas 2C (Southeast Alaska) and 3A (Central Gulf of Alaska) may be found in sections 3, 25, and 28 (74 FR 11681; March 19, 2009).

The Halibut Act also provides regulatory authority to the Secretary and the North Pacific Fishery Management Council (Council). The Secretary, under 16 U.S.C. 773c(a) and (b), has the general responsibility to carry out the Convention and the Halibut Act. In adopting regulations that may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act, the Secretary is directed to consult with the Secretary of the department in which the U.S. Coast Guard is operating. Under 16 U.S.C. 773c(c), the Council may develop halibut fishery regulations, for its geographic area of concern, that apply to U.S. nationals or vessels. Such an action by the Council is limited to regulations that are in addition to, and not in conflict with, IPHC regulations. Council-developed regulations may be implemented by NMFS only after approval by the Secretary. Using its authority under the Halibut Act, the Council is developing a regulatory program to manage the guided sport charter vessel fishery for halibut. One step in the development of that program was the implementation of a one-halibut daily bag limit on charter vessel anglers in IPHC Area 2C in order to limit their overall harvest to approximately the established guideline harvest level (74 FR 21194; May 6, 2009).

The final regulations implementing the one-halibut daily bag limit program include recordkeeping and reporting measures codified at 50 CFR 300.65 that require the submission of Alaska Department of Fish and Game (ADF&G) Saltwater Sport Fishing Charter Trip Logbook (charter logbook) data sheets for halibut charter vessels operating in IPHC Areas 2C and 3A (74 FR 21194; May 6, 2009). The proposed action would revise these recordkeeping and reporting measures to (1) improve consistency between federal regulations and State of Alaska (State) logbook instructions for the submission of the data sheets, and (2) address recent State changes to the charter logbook reporting format. This proposed action is administrative in nature, would revise the recordkeeping and reporting burden on guided charter operators in IPHC Areas 2C and 3A, would reduce potential confusion by the regulated public, and would facilitate efficient reporting of halibut caught and retained in these areas.

Halibut management in U.S. Convention waters, which include State and federal waters, is an international and federal responsibility under the Convention and the Halibut Act. To manage halibut effectively, international and federal managers need information on halibut fishing effort and harvest by the guided sport charter sector of the fishery. To avoid duplicative surveys of, and reporting by, industry, NMFS depends on data gathered by the State through its ongoing surveys of sport charter fishermen. This information has been used by the IPHC to set annual catch limits, and by the Council and NMFS to evaluate the potential effects of alternative restrictions on Area 2C guided sport harvests, charter vessel limited entry in Areas 2C and 3A, and a catch sharing plan. This information includes data gathered from the ADF&G charter vessel logbook program.

The ADF&G Division of Sport Fish initiated the mandatory charter vessel logbook program in 1998. The logbook program is based on Alaska Board of Fisheries regulations requiring logbook reporting and annual registration of sport fishing guides and businesses. The logbook program was developed to collect information on actual participation and harvest by individual charter vessels and businesses in various regions of the State.

Under the logbook program, ADF&G charter logbooks are issued to licensed sport fishing businesses. Each logbook contains pages on which to record data, along with detailed instructions, including an example of a completed logbook page. The pages are perforated to allow a copy of each page to be detached from the logbook and submitted to the ADF&G. Each data sheet is pre-printed with the ADF&G mailing address; however, the data sheets can be submitted to any regional or area ADF&G office. The instructions provide requirements and deadlines for submission. A schedule of charter logbook data sheet due dates is printed inside the front cover of each logbook.

Federal regulations at 50 CFR 300.65(d) require charter vessels operating in IPHC Areas 2C and 3A-and catching and retaining halibut-to complete and submit ADF&G charter logbook data sheets. Four minor modifications to federal regulations are necessary to improve consistency between the regulations and the logbook instructions and to respond to recent revisions to the logbook reporting format by the State.

The first proposed revision would amend the logbook submission requirements at § 300.65(d)(1)(i) to improve federal consistency with State requirements. Currently, the federal regulation requires submission of the ADF&G charter logbook data sheets to the ADF&G Division of Sport Fish at 333 Raspberry Road in Anchorage, AK, and postmarked no more than seven days after the end of a charter vessel fishing trip. The location and time frame for submitting data sheets are more restrictive than the State requirements, which are printed in the logbook instructions and allow data sheets to be received by any regional or area ADF&G office with deadlines based on a schedule of specific dates for fishing trips completed during any given week. These dates, which vary depending on the calendar year, fall a week after the closing date of each fishing week and, thus, 14 days after the start of each fishing week. The one exception is a mid-April deadline for fishing trips conducted before a date in early April.

The proposed action would revise the submission location and time period for logbook data sheets, and it would remove the requirement to submit data sheets to the ADF&G office on Raspberry Road and change “postmarked” to “postmarked or received” to mirror State regulations that allow data sheets to be mailed or delivered to any ADF&G office. The submission deadline for a charter vessel fishing trip ending April 5 through December 31, during which halibut were retained, would be extended from 7 to 14 days after the end of the trip. The submission deadline for data sheets for a charter vessel fishing trip ending February 1 through April 4, during which halibut were retained, would be submitted no later than April 12.

The remaining proposed revisions are necessary due to recent changes by the State to the ADF&G charter logbook data sheet format. These proposed revisions would eliminate potential confusion that could arise from inconsistent reporting requirements.

The signature requirement at § 300.65(d)(2)(iv)(A) for charter vessel anglers who retain halibut caught in IPHC Area 2C would be revised. Currently, the charter vessel angler is required to sign the back of the ADF&G charter logbook data sheet on the line number that corresponds to the angler's information on the front of the data sheet. State revisions to the data sheet format moved the signature line from the back of the sheet to the front, beneath the line for the angler's name. The proposed action would remove the direction to sign the back of the data sheet and instruct the charter vessel angler to sign the data sheet on the line that corresponds to the angler's information.

Section 300.65(d)(2)(iv)(B)( 1 ), which requires the charter vessel guide to record the sport fishing operator business license number on the ADF&G charter logbook data sheet, would be removed. State revisions to the data sheet eliminated the line for this license number. The revised logbook, however, retained the line for this number on the sign-out sheet.

Regulations that instruct how to mark the IPHC regulatory area fished on the ADF&G charter logbook data sheet would either be amended or suspended. For IPHC Regulatory Areas 2C and 3A, the current regulations at § 300.65(d)(2)(iv)(B)( 4 ) and § 300.65(d)(3), respectively, specify that the charter vessel guides must circle the regulatory area where halibut were caught and retained during each charter vessel fishing trip. This reflected previous logbook instructions that required charter vessel guides to circle the IPHC regulatory area fished, if halibut were kept, and to record the primary ADF&G statistical area where most bottomfish were caught. State revisions to the charter logbook data sheet eliminated the regulatory areas to be circled. The new State format, however, retained the instruction to record the primary statistical area.

Since the State requires the primary statistical area to be recorded on the charter logbook data sheet, NMFS relies on the State to revise the statistical areas along the boundary between IPHC Regulatory Areas 2C and 3A so that the regulatory area where halibut were caught and retained can be identified. The boundary currently crosses multiple statistical areas; consequently, these statistical areas encompass portions of both regulatory areas. The State is revising the statistical areas along the segment of this boundary covered by the ADF&G charter logbook maps. Each new or modified statistical area will be specific to either IPHC Area 2C or Area 3A. ADF&G will update all Southeast Alaska charter logbook maps that include this boundary to show the new and modified statistical areas.

NMFS is requesting public comment on two options. First, if the updated charter logbook maps are available to charter vessel operators before the Secretary makes a decision to approve the final rule for this action and it is published, then, under the proposed action, § 300.65(d)(2)(iv)(B)( 4 ) and § 300.65(d)(3) would be removed, and a new paragraph would be added at § 300.65(d)(1)(iii) that describes how to record halibut caught and retained in IPHC Regulatory Areas 2C and 3A. This paragraph would require the charter vessel guide to record on the charter vessel logbook data sheets the primary ADF&G statistical area where halibut were caught and retained. If halibut were caught and retained in IPHC Regulatory Area 2C and Area 3A during the same charter vessel fishing trip, then a separate data sheet must be used to record halibut caught and retained in each regulatory area. For example, on one data sheet, the charter vessel guide would record the halibut caught and retained in IPHC Area 2C, and the primary statistical area in Area 2C where the halibut were caught and retained. On a second data sheet, the charter vessel guide would record the halibut caught and retained in IPHC Area 3A, and the primary statistical area in Area 3A where the halibut were caught and retained.

Second, if the updated charter logbook maps are not available to charter vessel operators before the Secretary makes a decision to approve the final rule for this action and it is published, then, under the proposed action, § 300.65(d)(2)(iv)(B)( 4 ) and § 300.65(d)(3) would be suspended. These regulations would be amended after the maps are updated.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the Council, and the Secretary. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the Regional Council having authority for a particular geographical area to develop regulations governing the allocation and catch of halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. This action is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Alaska.

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

NMFS prepared an initial regulatory impact review (RIR) and regulatory flexibility analysis (IRFA) for this action. The RIR assesses all costs and benefits of available regulatory alternatives and describes the potential size, distribution, and magnitude of the expected economic impacts of this action. The IRFA, required by section 603 of the Regulatory Flexibility Act (RFA), describes the reasons why this action is being proposed; describes the objectives of, and legal basis for, the proposed rule; describes and estimates the number of small entities to which the proposed rule would apply; describes any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; and identifies any overlapping, duplicative, or conflicting federal rules. The IRFA also describes any significant alternatives to the proposed rule that accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes, and that would minimize any significant adverse economic impact of the proposed rule on small entities. Copies of the RIR/IRFA are available from NMFS (see ADDRESSES).

The description of the proposed action, its purpose, and its legal basis are described in the preamble and are not repeated in this Classification section. A summary of the RIR/IRFA follows.

The objectives of the proposed rule are to (1) improve consistency between federal and State requirements for the submission of the ADF&G charter logbook data sheets, and (2) address recent State changes to the logbook reporting format. This action will only affect halibut charters operating in IPHC Area 2C and Area 3A.

The changes would bring consistency to State and federal requirements and are expected to impose de minimus costs. The only substantive change (i.e., modification of regulatory limits on directly regulated entities) revises requirements on the location and time frame for submission of logbook data sheets, following charter vessel fishing trips during which halibut were caught and retained.

Based on State logbook data, NMFS estimates that 404 business entities would be directly regulated by this action in Area 2C, and that 450 business entities would be directly regulated by this action in Area 3A. The Secretary has published a final rule that will implement limited entry in the Pacific halibut guided sport charter fisheries in Areas 2C and 3A. NMFS expects that when the limited entry program is fully implemented in 2011, the number of business entities directly regulated by this action would be 231 in Area 2C and 296 in Area 3A.

The largest of these business entities, which are lodges, may be large entities under Small Business Act (SBA) standards, but that determination cannot be empirically confirmed at present. All the other charter operations would likely be considered small entities, based on SBA criteria, since they are believed to have gross revenues of less than $7.0 million on an annual basis, from all sources, including affiliates.

The analysis did not identify any new “projected reporting, recordkeeping and other compliance requirements” associated with the proposed regulatory changes.

This analysis did not reveal any federal rules that duplicate, overlap, or conflict with the proposed action.

There is no alternative to the proposed action with a smaller burden on directly regulated small entities.

This rule contains a collection of information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under control number 0648-0575. The public reporting burden for charter vessel guide respondents to fill out and submit logbook data sheets is estimated to average four minutes per response. The public reporting burden for charter vessel anglers to sign the logbook is estimated to be one minute per response. These estimates include the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:

1. The authority citation for 50 CFR part 300, subpart E, continues to read as follows:

2. In § 300.65:

a. Remove paragraphs (d)(2)(iv)(B)( 1 ), (d)(2)(iv)(B)( 4 ), and (d)(3);

b. Redesignate paragraphs (d)(2)(iv)(B)( 2 ), (d)(2)(iv)(B)( 3 ), (d)(2)(iv)(B)( 5 ), (d)(2)(iv)(B)( 6 ), (d)(2)(iv)(B)( 7 ), and (d)(2)(iv)(B)( 8 ), as (d)(2)(iv)(B)( 1 ), (d)(2)(iv)(B)( 2 ), (d)(2)(iv)(B)( 3 ), (d)(2)(iv)(B)( 4 ), (d)(2)(iv)(B)( 5 ), and (d)(2)(iv)(B)( 6 ), respectively;

c. Revise paragraphs (d)(1)(i), (d)(2)(iv)(A), and (d)(2)(iv)(B) introductory text; and

d. Add paragraph (d)(1)(iii) to read as follows:

Background

The Council adopted Framework 21 on January 27, 2010, and submitted it to NMFS on March 1, 2010, for review. Framework 21 was developed and adopted by the Council in order to meet the FMP's objectives to prevent overfishing and improve yield-per-recruit from the fishery. The FMP requires biennial adjustments to ensure that the measures meet the fishing mortality rate (F) and other goals of the FMP and achieve optimum yield (OY) from the scallop resource on a continuing basis. This rule proposes Framework 21 measures as adopted by the Council and described in detail here. The 2010 fishing year began on March 1, 2010, and Framework 21 specifies measures only for the 2010 fishing year. Due to late submission, measures will be implemented mid-year. Amendment 15 to the FMP, currently under development by the Council, will identify and implement annual catch limits and accountability measures to bring the FMP into compliance with the new requirements of the re-authorized Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) for the 2011 fishing year and beyond. Framework 22 will be developed by the Council to set the specifications for the 2011 and 2012 fishing years. The Council has reviewed the Framework 21 proposed rule regulations as drafted by NMFS and deemed them to be necessary and appropriate as specified in section 303(c) of the Magnuson-Stevens Act.

The IFQ Program was implemented on March 1, 2010. As a result, limited access scallop vessels, limited access scallop vessels with LAGC IFQ permits, and LAGC IFQ vessels will receive 94.5 percent, 0.5 percent, and 5 percent of the allocated target TAC, respectively, after accounting for applicable research and observer set-asides.

The Magnuson-Stevens Act requires that an ABC be set in each fishery. The ABC is defined as a level of a stock's annual catch, after accounting for the scientific uncertainty in the estimate of the catch level above which overfishing would be occurring, as well as any other scientific uncertainty. The Council's Scientific and Statistical Committee (SSC) recommended an ABC for the 2010 scallop fishery based on an F of 0.284, which results in a TAC of 57,803,000 lb (26,219 mt) after accounting for discards and incidental mortality. The calculation on which this ABC recommendation is based assumes that mortality in the scallop fishery is spatially and temporarily uniform, and that all exploitable scallop biomass is accessible to the fleet. However, due to various rotational and permanent closures, as well as area-based differences in F, a lower F target should be set to prevent localized overfishing in areas that are accessible to the fleet. As a result, the Council based the target TAC on an F of 0.24. This results in a TAC of 47,278,000 lb (21,445 mt).

After the deduction of the incidental target TAC (50,000 lb, 22.7 mt) allocated to vessels with LAGC incidental permits, the remaining TAC is 47,228,000 lb (21,422 mt). This TAC is allocated into several components: Open area DAS; individual access area trips for limited access vessels; IFQ allocations, including access area allocations, to vessels with LAGC IFQ permits; and research and observer set-asides.

This action would implement the following vessel-specific DAS allocations for the 2010 fishing year: Full-time vessels would be allocated 38 DAS; part-time vessels would be allocated 15 DAS; and occasional vessels would be allocated 3 DAS.

The proposed measures would be implemented after the start of the fishing year (FY) on March 1, 2010. The regulations that are currently in effect for FY 2010 ( i.e., March 1, 2010, through February 28, 2011) are inconsistent with proposed Framework 21 specifications, so it is possible that scallop vessels could exceed their DAS allocations during the interim period between March 1, 2010, and the implementation the proposed DAS. Therefore, this action specifies that any limited access open area DAS used in FY 2010 by a vessel that is above the final FY 2010 allocation for that vessel would be deducted from the vessel's FY 2011 DAS allocation.

Under the Northeast Multispecies FMP, 10 percent of the Southern New England (SNE) yellowtail TAC is allocated to scallop vessels fishing in the Nantucket Lightship Access Area (NLAA). If the SNE yellowtail TAC is caught, the NLAA would be closed to further scallop fishing for the remainder of the fishing year. If a vessel has unutilized trip(s) after the access area is closed due to reaching the yellowtail TAC, it would be allocated additional open area DAS at a reduced rate. This trip/DAS conversion would apply only to full-time vessels, and to occasional or part-time vessels that have no other available access areas in which to take their access area trip(s). Unused access area trip(s) would be converted to open area DAS so that scallop fishing mortality that would have resulted from the access area trip(s) would be equivalent to the scallop fishing mortality resulting from the open area DAS allocation. Consequently, if the NLAA is closed in FY 2010, each vessel with unutilized trip(s) would be allocated a specific amount of additional open area DAS according to permit category. Full-time vessels would be allocated 5.8 DAS per unutilized trip in the NLAA. If part-time and occasional vessels have no available access areas in which to take an unused trip, they would be allocated 4.6 DAS and 1.9 DAS, respectively. Although the Council did not specify this measure regarding occasional and part-time vessels in Framework 21, based on other Framework 21 measures adopted by the Council and the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act, consistent with scallop measures in previous years.

If a vessel has unused compensation trip(s) from a previously broken trip(s) when the access area closes due to reaching the yellowtail TAC, it would be issued additional DAS in proportion to the unharvested possession limit. For example, if a full-time vessel had an unused 9,000-lb (4,082-kg) NLAA compensation trip (half of the full possession limit) at the time of a NLAA yellowtail TAC closure, the vessel would be allocated 2.9 DAS (half of the 5.8 DAS that would be allocated for a full NLAA trip). Although the Council did not specify this measure regarding broken trip compensation in Framework 21, based on other Framework 21 measures adopted by the Council and the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act, consistent with scallop measures in previous years.

In FY 2010, full-time scallop vessels would be allocated one trip in the NLAA, two trips in the Elephant Trunk Access Area (ETAA), and one trip in the Delmarva Access Area (Delmarva). A part-time scallop vessel would be allocated two trips, which could be taken as follows: Two trips in the ETAA; one trip in the ETAA and one trip in the NLAA; one trip in the ETAA and one trip in Delmarva; or one trip in NLAA and one trip in Delmarva. An occasional vessel would be allocated one trip, which could be taken in any one open access area. The FY 2010 limited access scallop possession limit for access area trips would be 18,000 lb (8,165 kg) for full-time vessels, 14,400 lb (6,532 kg) for part-time vessels, and 6,000 lb (2,723 kg) for occasional vessels.

Because the proposed measures would be implemented after March 1, 2010, and the regulations that are currently in effect are inconsistent with proposed specifications, it is possible that scallop vessels could exceed their access area trip allocation during the interim period between March 1, 2010, and the implementation of final measures implementing Framework 21. For example, there are currently three ETAA trips allocated for full-time scallop vessels, but only two trips are proposed in this action. If a full-time vessel takes three trips into the ETAA during FY 2010, the vessel's FY 2011 trip allocation would be reduced by one trip to account for the FY 2010 overage. No access area trips are currently allocated for the NLAA, so no trips into that area could be taken until a final rule is effective for this action.

In addition, the current FY 2010 regulations provide part-time and occasional vessels a higher possession limit than this action proposes, which would be in effect during the interim period between March 1, 2010, and the date that final measures for Framework 21 are in effect. The current regulations allow for a part-time vessel and occasional vessel to land up to 18,000 lb (8,165 kg) and 7,500 lb (3,402 kg) per access area trip, respectively, but this would be reduced to 14,400 lb (6,532 kg) and 6,000 lb (2,722 kg) per access area trip, respectively. If a part-time or occasional vessel exceeds its final FY 2010 possession limit, the overage will be deducted from that vessel's FY 2011 possession limit allocation. Although the Council did not specify this measure regarding part-time and occasional vessel possession limit overages in Framework 21, based on other Framework 21 measures adopted by the Council and the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act.

1. TAC for LAGC vessels with IFQ permits. This action proposes a 2,326,700-lb (1,055-mt) annual TAC for LAGC vessels with IFQ permits for FY 2010. IFQ allocations would be calculated by applying each vessel's IFQ contribution percentage to this TAC.

2. TAC for Limited Access Scallop Vessels with IFQ Permits. This action proposes a 232,670-lb (106-mt) annual TAC for limited access scallop vessels with IFQ permits for FY 2010. IFQ allocations would be calculated by applying each vessel's IFQ contribution percentage to this TAC.

3. LAGC IFQ Trip Allocations and Possession Limits for Scallop Access Areas. The LAGC IFQ fishery would be allocated 5 percent of the overall ETAA, NLAA, and Delmarva TACs, resulting in a fleet-wide trip allocation of 1,377 trips in the ETAA and 714 trips in both the NLAA and in Delmarva. The areas would close to LAGC vessels when the Regional Administrator determines that the allocated number of trips have been taken in the respective areas.

Because this action would be implemented mid-year, and the current regulations are inconsistent with the proposed specifications, it is possible that LAGC scallop vessels could exceed the final FY 2010 fleet-wide trip allocations in the ETAA and Delmarva. The current regulations allocate 1,964 and 728 trips in the ETAA and Delmarva, respectively. If general category vessels exceed the final number of allocated trips from the ETAA or Delmarva in FY 2010, the number of excess trips would be deducted from the LAGC IFQ fleet access area trip allocation in FY 2011 in the ETAA or Delmarva, respectively. Although the Council did not address this scenario for Delmarva in their Framework 21 document, based on other Framework 21 measures adopted by the Council and the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act.

4. Northern Gulf of Maine (NGOM) TACS. This action proposes a 70,000-lb (31,751-kg) annual NGOM TAC for FY 2010.

5. Scallop Incidental Catch Target TAC. This action proposes a 50,000-lb (22,680-kg) scallop incidental catch target TAC for FY 2010 to account for mortality from this component of the fishery and to ensure that F targets are not exceeded.

Two percent of each scallop access area quota and 2 percent of the DAS allocation are set aside as the Scallop RSA to fund scallop research and to compensate participating vessels through the sale of scallops harvested under RSA quota. The FY 2010 RSA access area allocations would be: NLAA—117,820 lb (53 mt); ETAA—227,060 lb (103 mt); and Delmarva—117,700 lb (53 mt). The FY 2010 RSA DAS allocations would be 269 DAS.

One percent of each scallop access area quota and 1 percent of the DAS allocation are set aside as part of the industry-funded observer program to help defray the cost of carrying an observer. Scallop vessels on an observed DAS trip are charged a reduced DAS rate, and scallop vessels on an observed access area trip are authorized to have an increased possession limit. The Regional Administrator has specified the following compensation rate for the start of FY 2010: Vessels carrying an observer will receive 180 lb (82 kg) of scallops per day, or part of a day, in ETAA and Delmarva, and limited access DAS vessels will be compensated 0.10 DAS per DAS fished during observed open area trips ( i.e. , vessels will be charged 0.90 DAS per DAS fished with an observer onboard). The Regional Administrator will review all available fishery information to determine if these rates should be adjusted in response to the final Framework 21 measures. The 2010 observer set-aside access area allocations would be: NLAA—58,910 lb (27 mt); ETAA—113,530 lb (52 mt); and Delmarva—58,850 lb (27 mt). The FY 2010 DAS observer set-aside allocations would be 135 DAS.

Under the Endangered Species Act, each Federal agency is required to ensure its actions are not likely to jeopardize the continued existence of any listed species or critical habitat. If a Federal action is likely to adversely affect a listed species, formal consultation is necessary. Five formal Section 7 consultations, with resulting Biological Opinions, have been completed on the Atlantic sea scallop fishery to date. All five have had the same conclusion: The continued authorization of the scallop fishery may adversely affect, but is not likely to jeopardize the continued existence of four sea turtles species (loggerhead, green, Kemp's ridley, and leatherback). In the accompanying Incidental Take Statement of the Biological Opinions, NMFS is required to identify and implement non-discretionary reasonable and prudent measures (RPMs) necessary or appropriate to minimize the impacts of any incidental take, as well as Terms and Conditions (T/C) for implementing each RPM. RPMs and T/C cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.

Five RPMs and T/Cs were identified in the most recent Biological Opinion, as amended February 5, 2009. Framework 21 includes management measures to comply with the first of these RPMs, which required a limit of fishing effort in the Mid-Atlantic during times when sea turtle distribution is expected to overlap with scallop fishing activity. The Biological Opinion required that this restriction on fishing effort must be in place no later than FY 2010 and shall be limited to a level that will not result in more than a minor impact on the fishery.

For FY 2010, Framework 21 defines a “more than minor impact” on the fishery as one that would result in a 10-percent shift in baseline effort from the Mid-Atlantic during June 15 through October 31 into other areas and times of year when sea turtle interactions are less likely. This definition, as well as management measures to comply with the Biological Opinion and any future Biological Opinions, will be reevaluated for future fishing years in Framework 22 and subsequent actions.

This action proposes to close the Delmarva access area from September 1, 2010, through October 31, 2010. In addition, because the ETAA and Delmarva are in the Mid-Atlantic, full-time limited access vessels would be restricted to taking two of the access area trips allocated to those areas during the period June 15, 2010, through August 31, 2010. The Council proposed this trip restriction measure with the intention that there would be no change in the possession limit for trips taken during June 15, 2010, through August 31, 2010, and that the broken trip provision would apply to all trips. In order to be consistent with the Council's rationale, and under the authority of section 305(d) of the Magnuson-Stevens Act, NMFS proposes that full-time limited access vessels would be restricted to taking two of the access area trips allocated to those areas, or to maximum landings of 36,000 lb (16,329 kg) from those areas ( i.e. , the equivalent of two access area trips). Compliance with the trip restriction would be monitored by pounds landed during June 15, 2010, through August 31, 2010, rather than trip declarations, which could result in landings that are less than the allowable trip possession limit. The additional pounds allocated to vessels with on-board observers during trips taken within this time period would not count towards this 36,000-lb (16,329-kg) limit. If a vessel fishes any part of an access area trip in the ETAA or Delmarva during this time period ( i.e. , starts a trip on June 13, 2010, and ends the trip on June 15, 2010), landings from that trip would count towards the two-trip limit.

In addition, compensation trips may not be combined during this time period in a way that would allow more than 36,000 lb (16,329 kg) to be landed from the ETAA or Delmarva from June 15, 2010, through August 31, 2010. For example, a full-time vessel is allocated three total trips into the Mid-Atlantic access areas. If that vessel declared and subsequently broke one of the three trips into Mid-Atlantic access areas prior to June 15, it would have two full trips ( i.e. , 36,000 lb, 16,329 kg) available for use during the trip-restriction window. In that case, the vessel could only harvest up to 36,000 lb (16,329 kg) total from June 15, 2010, through August 31, 2010, in the Mid-Atlantic access areas, either by fishing its compensation trip and one full access area trip or by fishing two full access area trips and waiting to declare the compensation trip on or after November 1, 2010 ( i.e. , after the ETAA and Delmarva seasonal closures). Although the Council did not address specifically how compensation trips would be adjusted in order to comply with the Biological Opinion in its Framework 21 document, based on other Framework 21 measures adopted by the Council and the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act.

Part-time and occasional vessels would not be affected by this trip restriction because they are not allocated more than two trips during the entire fishing year. LAGC IFQ vessels would not be affected by this trip.

The following measures were developed by the Council and are proposed to improve the administration of the industry-funded observer program.

1. Limit the amount of observer compensation LAGC IFQ vessels can possess per observed trip in access areas. Currently, LAGC IFQ vessels are allowed to retain observer compensation in the form of a daily possession limit, as established by the Regional Administrator. In FY 2009, it was apparent that some LAGC vessels were extending the length of their observed trips into access areas in order to land additional scallops. This resulted in observer compensation in excess of the amount necessary to pay for the observer costs for these trips. This was one factor that resulted in the full harvest of the observer set-aside in FY 2009.

To account for this unintended result, this action proposes that the possession limit to defray the cost of an observer for LAGC IFQ vessels fishing in access areas would be specified by trip, not by fishing day. For example, if the limited access vessel daily possession limit to defray the cost of an observer is 180 lb (82 kg), the LAGC IFQ possession limit would be 180 lb (82 kg) per observed trip. In this scenario, an LAGC IFQ vessel with an onboard observer would be able to land up to 580 lb (263 kg), the sum of its regular possession limit of 400 lb (181 kg) plus the additional observer possession limit increase, during an access area trip, regardless of trip length.

2. Providers may charge a prorated fee for vessels fishing in access areas if the observer set-aside has been fully harvested. The current regulations require providers to charge a vessel owner for observer fees based on a calendar day, not per hour, to coincide with the daily rate of observer set-aside compensation. The regulation omitted regulatory text that would require the provider to adjust the fee if the set-aside is exhausted. Therefore, when the set- asides were exhausted in FY 2009, and vessel owners continued to pay for observers, the fee was based on a full calendar day instead of an hourly prorated fee. In some cases the charges were considered excessive, but were required by the regulations.

This proposed measure would specify that if the observer set-aside for a given FY is fully exhausted prior to the end of the FY, service providers must prorate their fees on an hourly basis, similar to how observer fees are charged for vessels fishing on open area scallop trips.

Although the Council did not specify this measure regarding observer prorated fees in Framework 21, it is a necessary component of the observer set-aside program. Therefore, based on the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act.

This action proposes a measure that would allow the owner of an IFQ vessel or IFQ confirmation of permit history (CPH) to lease a portion of its IFQ to or from another IFQ vessel during a single FY. The current regulations allow leasing only of an entire IFQ; under the proposed measure a vessel owner could lease some or all of an IFQ allocation. This alternative would only apply to leases, and not to permanent transfers, which would still require a vessel's entire IFQ allocation to be transferred permanently. Vessel owners intending to lease some or all of their IFQ allocation to another IFQ vessel(s) may not fish any of their IFQ allocation prior to the lease transaction.

This action would require partial IFQ leases to be at least 100 lb (45 kg). If a vessel owner has previously leased a portion of the vessel's IFQ, and the remaining allocation is less than 100 lb (45 kg), the remaining IFQ could be transferred in full to another vessel. Although the Council did not specify this measure regarding IFQ balances of less than 100 lb as the result of a previous lease, based on other Framework 21 measures adopted by the Council and the overall objectives of the FMP, NMFS proposes this measure under the authority of section 305(d) of the Magnuson-Stevens Act.

NMFS is also proposing several revisions to the regulatory text that were duplicative and unnecessary, outdated, unclear, or otherwise could be improved through revision. These were not recommended by the Council, but are necessary for the effective implementation and enforcement of the regulations. For example, the current vessel monitoring system (VMS) regulations that were included through Amendment 11 and pertain to required submission of pre-landing notification forms are currently difficult to distinguish from other VMS catch report requirements in the regulations. NMFS proposes to revise the regulations to clarify the regulations intended by Amendment 11 and to provide more ease in locating these requirements in § 648.10. In addition, this action proposes several revisions to the regulatory text that update the FYs when access areas will be open and rotational closed areas will be in effect, according to the current access area rotational management schedule. This action also proposes revisions that would remove text pertaining to regulations from prior fishing years that are no longer in effect. NMFS makes these changes consistent with section 305(d) of the Magnuson-Stevens Act.

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

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

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. A summary of the analysis follows.

This action proposes the FY 2010 management measures and specifications for the Atlantic sea scallop fishery. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble of this proposed rule and are not repeated here.

The vessels in the Atlantic sea scallop fishery are all considered small business entities and, therefore, there is no disproportionate impact on large and small entities. All of the vessels grossed less than $3 million according to dealer data for the FYs 1994 through 2008. According to this information, annual total revenue, including revenue from species other than scallops, has averaged over $1 million per full-time limited access vessel since FY 2004. According to FY 2008 dealer data, total revenue per vessel, including revenue from species other than scallops, averaged $1,079,722 per full-time limited access vessel and $135,378 per general category vessel.

The proposed regulations would affect all Federal scallop vessels. The Framework 21 document provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and state. In FY 2008 (the most recent complete FY for which data are complete), there were 321 full-time, 34 part-time, and 1 occasional limited access scallop permits issued, and 459 general category permits issued to vessels in the LAGC fishery. Amendment 11 to the FMP established a limited access fishery for general category vessels and the appeals and limited access permit process for the LAGC fleet was completed in January 2010. There are now 329 vessels that qualified for IFQ permits, 40 limited access vessels that qualified for IFQ permits, 107 vessels that qualified for NGOM permits, and 288 vessels that qualified for incidental permits.

This action contains no new collection-of-information, reporting, and recordkeeping requirements. It does not duplicate, overlap, or conflict with any other Federal law.

A detailed analysis of the economic impacts of the proposed actions may be found in Section 5.4 of the Framework 21 document. All the values for economic impacts discussed below are presented in terms of 2008 dollars and the projected values presented use a 7-percent discount rate to compare results to current values.

If approved, Framework 21 will be implemented after the start of FY 2010 (March 1, 2010). As a result, the current management measures and allocations are extended into FY 2010, including trip allocations for access areas and an open area allocation of 42 DAS per full-time limited access vessel, 17 per part-time vessel, and 3 per occasional vessel.

The aggregate economic impacts of the proposed measures, including the open area DAS and access area allocations for limited access vessels and TAC for the LAGC fishery, are expected to be slightly negative in FY 2010 compared to the No Action alternative and compared to the average revenue in FYs 2008 and 2009. The impact of five FY 2010 quota allocation alternatives were evaluated by Framework 21: Two alternatives proposing a new closure in the Great South Channel with different fishing mortality rates (F=0.18 and F=0.20), two alternatives with no new closure with different fishing mortality rates (F=0.20 and F=0.24), and the No Action alternative, which results in an F=0.25. The alternative with no new closure and F=0.24 will be referred to below as the proposed action. The non-selected alternatives will be referred to as Closure (0.18), Closure (0.20), No Closure (0.20), and No Action, respectively. Under all alternatives, the total number of access area trips allocated to limited access vessels remain the same, although the No Action alternative would allocate those trips to less productive areas than all other alternatives.

The proposed open area DAS allocations are expected to prevent overfishing in open areas. The proposed action would implement the following vessel-specific DAS allocations for FY 2010: Full-time vessels would be allocated 38 DAS; part-time vessels would be allocated 15 DAS; and occasional vessels would receive 3 DAS. The analysis of the fleet-wide aggregate economic impacts indicate that the proposed action will have slightly negative economic impacts on the revenues and profits of the scallop vessels in FY 2010, compared with the No Action alternative and compared to the levels in FYs 2008 and 2009. Because the proposed action will reduce the open area DAS allocations from 42 DAS to 38 DAS for each full-time limited access vessel (with similar reductions, proportionally for part-time and occasional vessels), the total landings will decline by 6 percent in FY 2010, from 50 million under No Action to 47 million under the proposed action, reducing 2010 revenues for an average vessel by about 2 percent. In comparison to FYs 2008 and 2009 average, the proposed action will result in a 14-percent decrease in landings, representing a 2.3-percent decrease in revenues. The percentage decline in revenues is less than the percentage decline in landings because the price per pound of scallops is estimated to be higher for the proposed action ($7.27 per pound) compared with No Action ($7.07 per pound), the price in FY 2008 ($6.92), and the price in FY 2009 ($6.45).

Although the proposed action will produce slightly less revenue in FY 2010 compared to FYs 2008 and 2009, the proposed action, as well as the Closure (0.18), Closure (0.20), and No Closure (0.20) alternatives, will result in higher revenues for full-time limited access vessels from FY 2011 through FY 2016.

Over the short term, from FY 2010 through FY 2016, the proposed action's cumulative revenues are estimated to be slightly lower than the No Action revenues by $9 million, representing a 0.3-percent decrease. However, the No Action alternative does not prevent overfishing and would result in suboptimal allocation of open area DAS and access area trips. Under the No Action alternative, there is no access into the NLAA, but the biomass in that area can support one trip. In addition, under No Action, open area DAS allocations would be higher than sustainable levels because there is no adjustment to reflect the present conditions of biomass in those areas. For these reasons, the levels of exploitable biomass for the No Action alternative will be less than the levels for the proposed action and all the other alternatives. Consequently, No Action would have long-term negative impacts on the scallop stock biomass, landings, revenues, and economic benefits of the scallop fishery. Over the long term (FYs 2010 to 2023), the proposed action will generate $53 million more in total revenues than the No Action alternative.

The Closure (0.20) and Closure (0.18) alternatives allocate higher DAS (51 and 42 DAS, respectively) to full-time vessels than the proposed alternative and would have positive economic impacts on scallop vessels in FY 2010. However, these alternatives would have negative biological impacts because the new rotational area closure resulted in a higher area-swept estimate in the Mid-Atlantic open area, which may have impacts on non-target species in those areas and increase the possibility of localized overfishing in open areas. If these negative biological impacts were to occur as a result of the Closure (0.18) or Closure (0.20) alternatives, more stringent measures would have to be taken in the future to reduce effort, with potentially negative impacts on the scallop vessels. Therefore, these alternatives are not expected to generate higher benefits for the scallop vessels in the long term compared to the proposed action.

The revenue for an average full-time limited access vessel is estimated to be $931,799 for the proposed action, which ranges from $108,152 to $18,661 lower than the Closure (0.18), Closure (0.20), and No Action alternatives. However, because the proposed action will allocate fewer open area DAS in FY 2010 compared to these three alternatives, and also will allocate access area trips in more productive areas compared to No Action, the trip costs would be comparatively reduced. The average trip costs per vessel ($111,621) would decline by a range of 20 to 9 percent in comparison to the higher DAS alternatives. The allowance for carry-over DAS is another factor that could also mitigate some of the negative impacts of the proposed action on vessel revenues and profits in FY 2010. Vessels may save up to 10 of their open area DAS in FY 2009 to mitigate the slightly smaller FY 2010 DAS allocations compared to No Action, Closure (0.18), or Closure (0.20) alternatives.

Although the No Closure (0.20) alternative would produce the greatest benefits over the long term, it would result in a 13-percent and 11-percent loss in FY 2010 average annual revenue compared to No Action and the proposed action, respectively. The proposed action would result in average FY 2010 revenues that are $109,563 greater than the No Closure (0.20) alternative. Although the proposed action will have marginally smaller positive long-term economic impacts in comparison to the No Closure (0.20) alternative, Framework 21 is only addressing the allocations for FY 2010 and future management measures in FY 2011 and beyond will affect these forecasts.

Under all alternatives, including No Action, the LAGC fleet is allocated 5 percent of the TAC. This means the relative comparison of the proposed action to the other alternatives is similar to the limited access fleet. For example, similar to full-time limited access vessels, the revenues of LAGC vessels are expected to be 2 percent lower under the proposed action than under No Action in FY 2010.

Compared to FYs 2008 and 2009, however, the revenues of LAGC vessels will decline by a larger percentage due to the implementation of the IFQ program, as required by Amendment 11 to the FMP. The total scallop revenue for the general category fishery was estimated to be $30.8 million for FY 2008 and $29.6 million for FY 2009, averaging $30.2 million across both FYs. During FYs 2008 and 2009, the LAGC fishery was under a transition period while the final decisions for IFQ permit appeals were determined. The transition period allocated 10 percent of the TAC to LAGC IFQ vessels, as well as vessels that were granted a letter of authorization to fish for scallops while their IFQ permit applications were under appeal. FY 2010 marks the first year that the IFQ program is in effect, and LAGC IFQ vessels are now allocated 5 percent of the TAC. As a result, revenues for LAGC vessels under the proposed action are projected to be $17 million, representing a 43-percent decline. The short- and long-term economic impacts of allocating 5 percent of the total TAC to LAGC vessels were analyzed in Amendment 11 to the FMP. The economic impacts of the proposed TAC are within the range of the impacts previously analyzed in these documents.

The proposed action will have positive economic impacts for the LAGC fishery starting in FY 2011, as the LAGC TAC is expected to increase compared to the FY 2010 allocation.

The proposed action maintains a provision that allocates additional open area DAS if an access area closes due to the attainment of the scallop yellowtail TAC. This would continue the current measures with the same impacts as the No Action alternative. This conversion will help to minimize lost catch and revenue if the NLAA closes due to the full harvest of yellowtail quota. As a result, this measure will have positive economic impacts on scallop vessels, although the scallop pounds per trip could be lower than the allocated pounds for NLAA trips due to proration to assure that the measure is conservation neutral. There were no alternatives considered that would generate higher economic benefits for the participants of the scallop fishery.

The proposed action would continue to set aside 2 percent of the scallop TAC for the RSA program and 1 percent of the scallop TAC for the industry-funded observer set-aside program. These set-asides are expected to have indirect economic benefits for the scallop fishery by improving scallop information and data made possible by research and the observer program. Although allocating higher set-aside percentages could result in higher indirect benefits to the scallop fleet by increasing available funds for research and the observer program, these set-aside increases could decrease direct economic benefits to the fishery by reducing revenues, and no such alternatives were considered.

The proposed action and the alternatives include access into both ETAA and Delmarva for both the limited access DAS and LAGC fleets. By itself, allocations for these highly productive areas in FY 2010 will have positive economic impacts on both limited access and LAGC vessels. The only alternative that would generate higher benefits than the proposed action is the No Action alternative, which would allocate three trips to ETAA. This number of trips is higher than the projected biomass in that area can support. As a result, the No Action alternative would have negative impacts on the biomass and yield from the ETAA after FY 2010. As experienced in the Hudson Canyon Access Area in FY 2005, excessive harvest in an access area can lead to rapid, almost immediate, depletion of the area's resource, leading to poor catch rates and elevated fishing costs.

The proposed action and alternatives considered, with the exception of No Action, all would allocate one access area trip into the NLAA. The biomass in this area is estimated to be high and trip costs will be lower because the same amount of scallops could be landed in a shorter time frame compared to areas with lower scallop abundance. Providing allocations to high abundance areas will help increase yield, landings, and revenues from the fishery both in the short and long term, benefiting both limited access and LAGC vessels that participate in the scallop fishery. Because there is no trip allocation to the NLAA area under No Action, economic benefits would be lower both in the short and long term compared to the proposed alternative, and other alternatives considered.

The proposed action specifies a 70,000-lb (31,751-kg) TAC for the NGOM. This is the same TAC as the No Action alternative and all other alternatives. The FMP specifies that the NGOM TAC should be based on historic landings levels until the stock in the NGOM can be assessed formally, and there has been no stock assessment to date. The NGOM TAC has been specified at this level since FY 2008, and the fishery has harvested less than 15 percent of the TAC in each of those years, therefore, the TAC has no negative economic impacts.

LAGC IFQ allocations can only be leased in their entirety under current regulations. The proposed action would allow LAGC IFQ vessels owners (or IFQ CPH owners) to lease some or all of their IFQ allocations to other vessels during a given FY. The proposed action would provide increased flexibility for LAGC IFQ vessel owners. As a result, this measure would have positive impacts on vessel revenues and profits. The only alternative is the No Action alternative, which would require that vessel owners lease entire unused quota allocations.

The proposed action would close the Delmarva access area in September and October and would limit the maximum number of trips (two per full-time vessel) that can be taken in the Mid-Atlantic areas from June 15 to August 31. Because fishing effort is shifted to a relatively less productive season, total fleet trip costs are expected to increase slightly ( i.e., less than 0.2 percent) due to reduced scallop catch rates. Since there is no change in the scallop possession limit, the trips that are shifted from this season are expected to be taken outside of this time period without a loss in total revenue, as long as this measure does not, as expected, have a negative impact on prices. The closure in the Delmarva access area from September 1-October 31 applies to all scallop vessels, including LAGC IFQ vessels. This measure is not expected to affect the LAGC fleet specifically, since the access area trips for this fleet are allocated as a fleet-wide number of trips, and tend to be used outside of the closure period. No other alternatives considered would generate higher benefits for the scallop vessels, other than the No Action alternative. The No Action alternative, however, would not comply with the RPMs specified in the Biological Opinion. The proposed action is expected to minimize the effort shift from the given time period compared to the other action alternatives considered by the Council; thus, there are no other alternatives that would generate higher benefits for the scallop vessels.

The proposed action includes a provision to limit the total amount of observer compensation LAGC IFQ vessels can receive on observed trips in access areas to the equivalent of 1 day's compensation, regardless of trip length. The No Action alternative would continue to provide LAGC IFQ vessels observer compensation on a daily basis and would generate higher benefits for the scallop vessels while the observer set-aside is available. This, however, may exhaust the set-aside TAC before the end of the FY. The current LAGC IFQ access area observer compensation contributed to fully harvesting the FY 2009 observer set-aside earlier than anticipated. This had negative impacts fleet-wide because vessels had to provide full payment to observers without available observer compensation after the observer set-aside was exhausted, with negative impacts that were not equally distributed across the fleet.

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

The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission), in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina (NC) northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35° E. 13.3′ N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border.

The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 50 CFR part 648, subparts A (general provisions), G (summer flounder), H (scup), and I (black sea bass). General regulations governing U.S. fisheries also appear at 50 CFR part 600. States manage summer flounder within 3 nautical miles of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The Federal regulations govern vessels fishing in Federal waters of the exclusive economic zone (EEZ), as well as vessels possessing a Federal fisheries permit, regardless of where they fish.

The FMP established Monitoring Committees (Committees) for the three fisheries, consisting of representatives from the Commission, the Council, state marine fishery agency representatives from MA to NC, and NMFS. The FMP and its implementing regulations require the Committees to review scientific and other relevant information annually and to recommend management measures necessary to achieve the recreational harvest limits established for the summer flounder, scup, and black sea bass fisheries for the upcoming fishing year. The FMP limits these measures to minimum fish size, possession limit, and fishing season.

The Council's Demersal Species Committee, and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (Board) then consider the Committees' recommendations and any public comment in making their recommendations to the Council and the Commission, respectively. The Council then reviews the recommendations of the Demersal Species Committee, makes its own recommendations, and forwards them to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for each species in the FMP before ultimately implementing measures for Federal waters.

Quota specifications for the 2010 summer flounder, scup, and black sea bass fisheries were published on December 22, 2009 (74 FR 67978), and became effective January 1, 2010. The black sea bass specifications (i.e., recreational harvest limit and commercial quota) were increased by emergency rule on February 10, 2010 (75 FR 6586). Based on the specifications, the 2010 coastwide recreational harvest limits are 8,586,440 lb (3,896 mt) for summer flounder, 3,011,074 lb (1,366 mt) for scup, and 1,830,390 lb (830 mt) for black sea bass. The specification rules did not establish recreational measures, in large part because a substantial portion of 2009 recreational catch data was not yet available when the Council made its recreational harvest limit recommendation to NMFS.

All minimum fish sizes discussed hereafter are total length measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side. For black sea bass, total length measurement does not include the caudal fin tendril. All possession limits discussed below are per person. All landings projection data are based on data from the Marine Recreational Fisheries Statistics Survey (MRFSS) Waves 1-4 (January-August) unless otherwise indicated.

Recreational landings for 2009 were estimated to have been 6.40 million lb (2,903 mt) and were 12 percent below the 2009 recreational harvest limit of 7.16 million lb (2,248 mt). The 2010 coastwide harvest limit is 8.59 million lb (3,896 mt), a 20-percent increase from the 2009 harvest limit. The Council and Commission have recommended the use of conservation equivalency to manage the 2010 summer flounder recreational fishery.

NMFS implemented Framework Adjustment 2 to the FMP (Framework Adjustment 2) on July 29, 2001 (66 FR 36208), which established a process that makes conservation equivalency an option for the summer flounder recreational fishery. Conservation equivalency allows each state to establish its own recreational management measures (possession limits, minimum fish size, and fishing seasons) to achieve its state harvest limit provided by the Commission, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures developed to achieve the overall recreational harvest limit, if implemented by all of the states.

The Council and Board recommend that either on an annual basis state-specific recreational measures be developed (conservation equivalency) or coastwide management measures be implemented by all states to ensure that the recreational harvest limit will not be exceeded. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.

If conservation equivalency is recommended, and following confirmation that the proposed state measures developed through the Commission's technical and policy review processes achieve conservation equivalency, NMFS may waive the permit condition found at § 648.4(b), which requires federally permitted vessels to comply with the more restrictive management measures when state and Federal measures differ. In such a situation, federally permitted charter/party permit holders and recreational vessels fishing for summer flounder in the EEZ would then be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.

In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a summer flounder management proposal to the Commission's Summer Flounder Technical Committee (Technical Committee), or that submits measures that would not exceed the harvest limit for that state. The precautionary default measures are defined as the set of measures that would not exceed the harvest limit for any state on a coastwide basis.

In previous years when conservation equivalency has been jointly recommended by the Council and Commission, NMFS has provided a description of the management targets, technical, and other Commission-imposed requirements for states to follow when designing state-specific equivalent measures. The process that results in selection of appropriate data and analytic techniques for technical review of potential state conservation equivalent measures and the process by which the Commission evaluates and recommends proposed conservation equivalent measures is wholly a function of the Commission and its individual member states. Inclusion of such descriptions may add confusion and imply that the development, evaluation, and recommendation process is part of the combined Council and NMFS responsibilities of the conservation equivalency system. Individuals seeking information regarding the specific state measure development process or the Commission process should contact the marine fisheries agency in the state of interest, the Commission, or both.

Once states select their final 2010 summer flounder management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further independent review and evaluation of the state-submitted proposals, ultimately notifying NMFS as to which individual state proposals have been approved or disapproved. NMFS has no input or authority in the state or Commission management measure development and review process. However, NMFS retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures, and will publish its determination as a final rule in the Federal Register to establish the 2010 recreational measures for these fisheries.

States that do not submit conservation equivalency proposals, or whose proposals are disapproved by the Commission, will be required by the Commission to adopt the precautionary default measures. In the case of states that are initially assigned precautionary default measures, but subsequently receive Commission approval of revised state measures, NMFS will publish a notice in the Federal Register announcing a waiver of the permit condition at § 648.4(b).

The precautionary default measures recommended by the Council and Board during their joint December 2009 meeting are for a 21.5-inch (54.61-cm) minimum fish size, a possession limit of two fish, and an open season of May 1 through September 30, 2010.

As described above, for each fishing year, NMFS implements either coastwide measures or conservation equivalent measures at the final rule stage. The coastwide measures recommended by the Council and Board for 2010 are a 19.5-inch (49.53-cm) minimum fish size, a possession limit of two fish, and an open season from May 1 to September 30, 2010.

In this action, NMFS proposes to implement conservation equivalency with a precautionary default backstop, as previously outlined, for states that either fail to submit conservation equivalent measures or whose measures are not approved by the Commission. NMFS proposes the non-preferred alternative of coastwide measures, as previously described, for use if conservation equivalency is not approved in the final rule. The coastwide measures would be waived if conservation equivalency is approved in the final rule.

The 2010 scup recreational harvest limit is 3.01 million lb (1,366 mt), a 16-percent increase from the 2009 recreational harvest limit of 2.59 million lb (1,175 mt). Recreational landings in 2009 are estimated to have been 4.01 million lb (1,819 mt), exceeding the recreational harvest limit by 55 percent. Because of this overage, recreational landings must be reduced by 30 percent from 2009 levels for the 2010 fishery to stay within the established recreational harvest limit.

However, the Council initially recommended measures that would reduce 2010 landings by 35 percent to remain within the 2010 recreational harvest limit based on a preliminary landings estimate that was slightly higher. The Council's recommendation was made in early December and, subsequent to the Council's recommendation, and subsequent additional analysis of the 2009 recreational landings has been conducted by a technical working group at the request of the Council, Commission, and NMFS. The working group was tasked to re-examine a specific situation regarding anomalies from the MRFSS Wave 4 Massachusetts party vessel sector estimate. The analysis conducted by this working group resulted in a revised Wave 4 estimate that changed the level of reduction from 2009 landing levels required for 2010 from 35 to 30 percent. As a result, the Council's preferred alternative for an 11.0-inch (27.94-cm) minimum fish size, a 10-fish per person possession limit, and open fishing seasons of January 1-February 28 and June 12-September 26 is more restrictive than necessary to remain within the 2010 recreational harvest limit.

The Council also considered an alternative that is projected to provide the revised 30-percent reduction from 2009 landings in 2010: A 10.5-inch (26.67-cm) minimum fish size; a 10-fish per person possession limit; and an open season of June 6-September 26. Consistent with the revised catch analysis for 2009, NMFS proposes to implement the Council's non-preferred suite of measures that achieve the 30-precent reduction in 2010 landings from 2009 levels for Federal waters in the 2010 scup recreational fishery: A 10.5-inch (26.67-cm) minimum fish size; a 10-fish per person possession limit; and an open season of June 6-September 26. NMFS acknowledges that the Commission meeting has indicated its intent to continue managing the recreational scup fishery through a Commission-based conservation equivalency program that has no comparable measures in the Federal FMP. Preliminary information presented during the February 2010 Commission indicated that the Commission's 2010 scup recreational measures for state waters may differ from the measures of this proposed rule. Very little of the scup recreational harvest comes from the Federal waters of the EEZ. The total scup recreational harvest from Federal waters for 2008 was approximately 4 percent.

The process for 2010 black sea bass recreational management measures has been complicated by many unusual, and at times, unforeseeable events. Recreational landings in 2009 were estimated to have been between 1.94 and 3.31 million lb (882 and 1,501 mt), based on evaluation of actual landings data through August and projections of final 2009 landings. Either scenario exceeds the 2009 recreational harvest limit of 1.14 million lb (517 mt). NMFS implemented an emergency rule (74 FR 51092; October 5, 2009) to close Federal waters of the EEZ to black sea bass recreational fishing for a period of 180 days, based on recreational landings data through August 2009, because of the magnitude of the overage. When the closure was implemented in October 2009, the 2010 recreational harvest limit had not yet been finalized, development of recreational management measures had not yet begun, and data on final recreational landings for 2009 were incomplete. While issuing the closure, NMFS anticipated that the magnitude of the 2009 overage was such that a reduction in landings from 2009 levels in 2010 would be likely. Thus, the fishery was closed for 180 days, as opposed to implementing a closure through the end of the fishing year, December 31, 2009. It was expected that in the interim between the start of the closure on October 5, 2009, and the end of the 180-day closure period, the typical process for establishing both the 2010 recreational harvest limit and recreational management measures would occur. However, the process has been atypical, for the following reasons.

In December 2009, the Council and Commission developed recommended management measures for the 2010 recreational fishery. The measures were designed to achieve a 66-percent reduction in landings from projected 2009 levels, which was consistent with the black sea bass recreational harvest limit of 1,137,810 lb (516 mt) that had been adopted by the Council and Commission in August 2009. The 66-percent reduction was calculated using 2009 landings data from Waves 1-4 (January-August), and projected landings for Waves 5 and 6 (September-December), as data for Waves 5 and 6 were not available at the time the Council and Commission met.

On December 22, 2009, NMFS published a final rule implementing the specifications for the 2010 fishing year. These specifications, effective January 1, 2010, included total allowable landings (TAL) for black sea bass of 2.3 million lb (1,043 mt), of which 1,137,810 lb (516 mt) was allocated to the recreational fishery as the recreational harvest limit. This TAL and recreational harvest limit was consistent with the August 2009 recommendations of the Council and Commission.

In early January 2010, the Council's Scientific and Statistical Committee (SSC) convened to reconsider its previous recommendations regarding the Acceptable Biological Catch (ABC) for black sea bass for the 2010 fishing year. The SSC concluded that the ABC for black sea bass could be increased from 2.71 million lb (1,229 mt) to 4.5 million lb (2,041 mt), which was consistent with catch levels established for 2008.

In response, on January 15, 2010, the Council submitted a letter to NMFS requesting that the agency take emergency action to increase the black sea bass TAL for 2010 consistent with the revised ABC. The letter requested that NMFS increase both the 2010 commercial quota and recreational harvest limit for black sea bass.

On February 10, 2010, in response to the Council's request, NMFS published an emergency rule to increase the 2010 black sea bass TAL from 2.3 million lb (1,043 mt) to 3.7 million lb (1,678 mt), and to increase the recreational harvest limit to 1,830,390 lb (830 mt).

In mid-February 2010, the Commission and Council met separately to reconsider the recreational fishery management measures developed in December 2009. The measures adopted in December 2009 were designed to achieve a 66-percent reduction in black sea bass landings relative to 2009, but with the increased recreational harvest limit implemented in the emergency rule, only a 44-percent reduction appeared necessary. Both the Council and Commission retained the status quo minimum fish size of 12.5 inches (31.75 cm) and 25-fish bag limit, but the two groups adopted different seasons. The Commission adopted a single season from May 22-September 12, and the Council recommended a split season from May 22-August 8 and September 4-October 4. Both sets of measures are projected to achieve a 44-percent reduction in landings.

Information on final 2009 black sea bass recreational total landings are not yet available. However, since the Council and Commission reconsidered 2010 black sea bass recreational management measures based on a 44-percent reduction in landings, the preliminary 2009 MRFSS Wave 6 (November-December) data have become available. The EEZ was closed for the entire 2009 Wave 6 period, and landings from 2009 Wave 6 are 75 percent lower than 2008 Wave 6 landings. The EEZ was also closed from October 5-31, 2009, during Wave 5 (September-October), but data on Wave 5 are not yet available.

The projection methodology utilized by both the Council and Commission that indicated a 44-percent reduction in landings was necessary used 2008 Wave 6 data and assumed that the EEZ closure had no effect on landings during the October 5-December 31 period (i.e., partial Wave 5 and all of Wave 6). This assumption was reasonable at the time, given that: (1) The Council and Commission anticipated that some amount of landings would continue to occur in state waters that remained open; and (2) preliminary Wave 5 data were expected to be available in mid-December to provide a more informed assessment of the closure impacts. However, issues related to the adequacy of survey sample size for the 2009 Wave 5 sampling period required additional analyses to be conducted by the NMFS Office of Science and Technology to ensure suitability of the 2009 Wave 5 estimate. Final data for Wave 5 are expected in mid-April 2010.

NMFS has conducted additional analysis of the 2009 projected landings, making use of the preliminary 2009 Wave 6 data and modifying the assumptions regarding black sea bass landings during the October 5-31, 2009, EEZ closure timeframe. It is evident from this analysis that the 2009 black sea bass landings are lower than previously projected; however, in the multiple projection scenarios conducted, the 2009 recreational harvest limit was still exceeded and a reduction in 2010 landings still appears to be necessary. These alternative projections suggest that the percent reduction in landings from 2009 levels is less than the 44 percent in the Council and Commission projection analysis.

To ensure that final 2010 black sea bass recreational management measures are promulgated in a timely fashion and make use of the best available information regarding 2009 landings, NMFS is proposing the following course of concurrent actions:

1. NMFS has extended the existing recreational fishery closure in the EEZ until 11:59 p.m., May 21, 2010. This will ensure that the 2010 recreational fishery will begin no earlier than the Council and Commission preferred start date of May 22, 2010.

2. NMFS will analyze 2009 Wave 5 and final 2009 black sea bass recreational landings data as soon as they are available. These data are expected in mid-April. Using these data will provide the best information possible on the amount of reduction required in the 2010 fishery.

3. NMFS proposes to implement the Council and Commission-recommended minimum fish size of 12.0 inches (31.75 cm), possession limit of 25 fish per person, and season starting date of May 22, 2010. The final season length will be determined by the updated analysis of final 2009 landings data and implemented in the final rule for this action, following analysis and public comment.

It is not practicable to hold this proposed rule for 2010 black sea bass recreational management measures until after final 2009 landings data are available. In regards to season length, NMFS will consider the amount of potential liberalization possible based on the final 2009 landings data and will, to the extent practicable, extend the fishing season from May 22 onward. Under the Council's current preferred alternative, a 44-percent reduction in landings is provided by a May 22-August 8 and September 4-October 4 fishing season; therefore, liberalization could involve the addition of days from August 9-September 3 and/or from October 5 onward, as permitted by any revision to the required reduction in 2010 landings resulting from final 2009 landings data analysis. Through this proposed rule, NMFS is requesting specific comment from the Council, Commission, and interested public on how to best extend the fishing season, should the final analysis warrant that. The full extent of potential season length will not be known until final 2009 landings data can be analyzed. NMFS expects that a final rule to implement the 2010 black sea bass recreational season will be issued and effective well in advance of the Commission's recommended August 8, 2010, mid-season closure.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

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. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble and in the SUMMARY of this proposed rule. A summary of the analysis follows. A copy of the complete IRFA is available from the Council (see ADDRESSES ).

This proposed rule does not duplicate, overlap, or conflict with other Federal rules. The proposed action could affect any recreational angler who fishes for summer flounder, scup, or black sea bass in the EEZ or on a party/charter vessel issued a Federal permit for summer flounder, scup, and/or black sea bass. However, the only regulated entities affected by this action are party/charter vessels issued a Federal permit for summer flounder, scup, and/or black sea bass, and so the IRFA focuses upon the expected impacts on this segment of the affected public. These vessels are all considered small entities for the purposes of the RFA, i.e., businesses in the recreational fishery with gross revenues of up to $6.5 million. These small entities can be specifically identified in the Federal vessel permit database and would be impacted by the recreational measures, regardless of whether they fish in Federal or state waters. Although fishing opportunities by individual recreational anglers may be impacted by this action, they are not considered small entities under the RFA.

The Council estimated that the proposed measures could affect any of the 948 vessels possessing a Federal charter/party permit for summer flounder, scup, and/or black sea bass in 2009, the most recent year for which complete permit data are available. However, only 328 vessels reported active participation in the recreational summer flounder, scup, and/or black sea bass fisheries in 2008, the most recent year for which complete fishing vessel trip reports (i.e., logbooks) are available.

In the IRFA, the no-action alternative (i.e., maintenance of the regulations as codified) is defined as implementation of the following: (1) For summer flounder, coastwide measures of a 20-inch (50.8-cm) minimum fish size, a 2-fish possession limit, and a season from May 1 through September 30; (2) for scup, a 10.5-inch (26.67-cm) minimum fish size, a 15-fish possession limit, and open seasons of January 1 through February 28, and October 1 through October 31; and (3) for black sea bass, a 12-inch (30.48-cm) minimum size, a 25-fish possession limit, and an open season of January 1 through December 31.

The impacts of the proposed action on small entities (i.e., federally permitted party/charter vessels in each state in the Northeast region) were analyzed, assessing potential changes in gross revenues for all 24 combinations of alternatives proposed. Although NMFS's RFA guidance recommends assessing changes in profitability as a result of proposed measures, the quantitative impacts were instead evaluated using changes in party/charter vessel revenues as a proxy for profitability. This is because reliable cost and revenue information is not available for charter/party vessels at this time. Without reliable cost and revenue data, profits cannot be discriminated from gross revenues. As reliable cost data become available, impacts to profitability can be more accurately forecast. Similarly, changes to long-term solvency were not assessed, due both to the absence of cost data and because the recreational management measures change annually according to the specification-setting process. Effects of the various management measures were analyzed by employing quantitative approaches, to the extent possible. Where quantitative data were not available, qualitative analyses were utilized. Management measures proposed under the summer flounder conservation equivalency alternative (Summer Flounder Alternative 1) have yet to be adopted; therefore, potential losses under this alternative could not be analyzed in conjunction with various alternatives proposed for scup and black sea bass. Since conservation equivalency allows each state to tailor specific recreational fishing measures to the needs of that state, while still achieving conservation goals, it is likely that the measures developed under this alternative, when considered in combination with the measures proposed for scup and black sea bass, would have fewer overall adverse effects than any of the other combinations that were analyzed.

Impacts for other combinations of alternatives were examined by first estimating the number of angler trips aboard party/charter vessels in each state in 2009 that would have been affected by the proposed 2010 management measures. All 2009 party/charter fishing trips that would have been constrained by the proposed 2010 measures in each state were considered to be affected trips. MRFSS data indicate that anglers took 34.66 million fishing trips in 2009 in the Northeastern U.S., and that party/charter anglers accounted for 1.41 million of the angler fishing trips, private/rental boat trips accounted for 17.34 million angler fishing trips, and shore trips accounted for 15.91 million recreational angler fishing trips.

There is very little empirical evidence available to estimate how the party/charter vessel anglers might be affected by the proposed fishing regulations. If the proposed measures discourage trip-taking behavior among some of the affected anglers, economic losses may accrue to the party/charter vessel industry in the form of reduced access fees. On the other hand, if the proposed measures do not have a negative impact on the value or satisfaction the affected anglers derive from their fishing trips, party/charter revenues would remain unaffected by this action. In an attempt to estimate the potential changes in gross revenues to the party/charter vessel industry in each state, two hypothetical scenarios were considered: A 25-percent reduction and a 50-percent reduction in the number of fishing trips that are predicted to be affected by implementation of the management measures in the Northeast (ME through NC) in 2010.

Total economic losses to party/charter vessels were then estimated by multiplying the number of potentially affected trips in each state in 2010, under the two hypothetical scenarios, by the estimated average access fee of $62.38 paid by party/charter anglers in the Northeast in 2009. Finally, total economic losses were divided by the number of federally permitted party/charter vessels that participated in the summer flounder fisheries in 2009 in each state (according to homeport state in the Northeast Region Permit Database) to obtain an estimate of the average projected gross revenue loss per party/charter vessel in 2010. The analysis assumed that angler effort and catch rates in 2010 will be similar to 2009.

The Council noted that this method is likely to overestimate the potential revenue losses that would result from implementation of the proposed measures in these three fisheries for several reasons. First, the analysis likely overestimates the potential revenue impacts of these measures because some anglers would continue to take party/charter vessel trips, even if the restrictions limit their landings. Also, some anglers may engage in catch and release fishing and/or target other species. It was not possible to estimate the sensitivity of anglers to specific management measures. Second, the universe of party/charter vessels that participate in the fisheries is likely to be even larger than presented in these analyses, as party/charter vessels that do not possess a Federal summer flounder, scup, or black sea bass permit because they fish only in state waters are not represented in the analyses. Considering the large proportion of landings from state waters (e.g., more than 97 percent of summer flounder and 96 percent of scup landings in 2008, respectively), it is probable that some party/charter vessels fish only in state waters and, thus, do not hold Federal permits for these fisheries. Third, economic losses are estimated under two hypothetical scenarios: (1) A 25-percent; and (2) a 50-percent reduction in the number of fishing trips that are predicted to be affected by implementation of the management measures in the Northeast in 2010. Reductions in fishing effort of this magnitude in 2010 are not likely to occur, given the fact that the proposed measures do not prohibit anglers from keeping at least some of the fish they catch, or the fact that there are alternative species to harvest. Again, it is likely that at least some of the potentially affected anglers would not reduce their effort when faced with the proposed landings restrictions, thereby contributing to the potential overestimation of potential impacts for 2010.

The proposed action for the summer flounder recreational fishery would limit coastwide catch to 8.59 million lb (3,896 mt) by imposing coastwide Federal measures throughout the EEZ. As described earlier, upon confirmation that the proposed state measures would achieve conservation equivalency, NMFS may waive the permit condition found at § 648.4(b), which requires federally permitted vessels to comply with the more restrictive management measures when state and Federal measures differ. Federally permitted charter/party permit holders and recreational vessels fishing for summer flounder in the EEZ then would be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.

Because states have yet to develop specific 2010 management measures, it is not yet possible to analyze the potential impacts of Summer Flounder Alternative 1, which would implement conservation equivalency. However, conservation equivalent recreational management measures allow each state to develop specific summer flounder recreational measures, which would allow the fishery to operate in each state during critical fishing periods while still achieving the conservation objectives. This should help mitigate potential adverse economic impacts. Therefore, the Council concluded in its analysis that Summer Flounder Alternative 1 would likely have the lowest potential adverse impact of the alternatives considered for the 2010 summer flounder recreational fishery.

Because states have a choice of developing specific measures in the Commission's conservation equivalency process, it is expected that the states would adopt conservation equivalent measures that result in fewer adverse economic impacts than the more restrictive proposed precautionary default measures (i.e., 21.5-inch (54.61-cm) minimum fish size, a possession limit of two fish, and an open season of May 1 through September 30, 2010). The precautionary default is a sub-alternative that may be implemented under specific conditions, as outlined in the preamble of this rule. As such, the Council conducted analysis of the potential impact of implementing precautionary default measures in 2010. Under the precautionary default measures, impacted trips are defined as trips taken in 2009 that landed at least one summer flounder smaller than 21.5 inches (54.61 cm), landed more than two summer flounder, or landed summer flounder during closed seasons. The analysis concluded that implementation of precautionary default measures could affect 0.63 percent of the party/charter vessel trips in the Northeast, including those trips where no summer flounder were caught.

The impacts of Summer Flounder Alternative 2 for coastwide measures, which would be implemented by NMFS if conservation equivalency is disapproved in the final rule, i.e., a 19.5-inch (49.53-cm), minimum fish size, a two-fish possession limit, and a fishing season from May 1 through September 30, were evaluated in the Council's analysis. Impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2009 that landed at least one summer flounder smaller than 19.5 inches (49.53 cm), that landed more than two summer flounder or landed summer flounder during closed seasons. The analysis concluded that the measures would affect 0.56 percent of the party/charter vessel trips in the Northeast.

Continuation of the summer flounder coastwide management measures (i.e., a 19.5-inch (49.53-cm) minimum fish size, two-fish possession limit, and a May 1 through September 1 fishing season) is expected to constrain 2010 landings to the recreational harvest limit; however, continuation of those measures would be more restrictive than necessary under the summer flounder rebuilding plan requirement established 2010 recreational harvest limit.

The proposed action for the scup recreational fishery would implement Federal coastwide management measures throughout the EEZ. As described earlier in the preamble, a conservation equivalent program is utilized by the Commission to manage state waters. Federally permitted charter/party permit holders and recreational vessels fishing for scup in the EEZ then would be subject to the recreational fishing measures implemented by NMFS; charter/party vessels participating solely in state waters without a Federal permit would be subject to the provisions adopted by the Commission; federally permitted vessels participating in both state and Federal waters would be subject to the more restrictive of the two measures implemented to manage the 2010 scup recreational fishery.

Scup Alternative 1 (an 11.0-inch (27.94-cm) minimum fish size, a 10-fish per person possession limit, and open seasons of January 1 through February 29 and June 12 through September 26) is projected to reduce scup landings in 2010 by 35 percent from 2009 levels, assuming comparable measures in both state and Federal waters. As explained elsewhere in the preamble, state and Federal measures are expected to differ; however, very little of the scup recreational harvest occurs in Federal waters of the EEZ. Affected trips under Scup Alternative 1 were defined as trips taken in 2009 that landed at least one scup smaller than 11.0 inches (27.94 cm), landed more than 10 scup, or landed scup during the closed seasons (March 1-June 12 and September 27-December 31). Analysis concluded that 2.15 percent of federally permitted party/charter vessel trips could be affected by this alternative. This alternative is more restrictive than is required for 2010.

The non-preferred scup coastwide alternative (Scup Alternative-2; 10.5-inch (26.67-cm) minimum fish size, 15-fish per person possession limit, and open seasons of January 1 through February 29 and October 1 through October 15) is not projected to achieve the necessary conservation required for the 2010 scup recreational fishery. Thus, Scup Alternative 2 is inconsistent with the goals and objectives of the FMP and the Magnuson-Stevens Act.

Scup Alternative 3 measures (a 10.5-inch minimum fish size, 10 fish per person possession limit, and fishing seasons June 6-September 26) are expected to constrain landings to the 2010 recreational harvest limit if comparable measures are utilized in state waters. However, as noted elsewhere in the preamble, the Commission is likely to implement more liberal measures in state waters that may result in the 2010 recreational harvest limit being exceeded, regardless of what measures are taken for Federal waters-including closure of Federal waters of the EEZ. Affected trips under Scup Alternative 3 were defined as trips taken in 2009 that landed at least one scup smaller than 10.5 inches, landed more than 7 but less than 10 scup, or landed scup in the closed seasons. The analysis concluded that this alternative could impact 2.24 percent of Federally permitted party/charter vessel trips in 2009, if implemented.

The proposed action for the black sea bass recreational fishery would limit coastwide catch to 1.83 million lb (830 mt) by imposing coastwide Federal measures throughout the EEZ. The impact of Black Sea Bass Alternative 1 (a 12.5-inch (31.75-cm) minimum fish size, a 25-fish per person possession limit, and an open season of June 1-30 and September 1-30), is projected to reduce black sea bass landings by 66 percent in 2010 from 2009 levels. This is more restrictive than necessary, but would likely ensure that landings remain below the 2010 recreational harvest limit. Impacted trips were defined as trips taken in 2009 that landed at least one black sea bass smaller than 12.5 inches (31.75 cm), landed more than 25 black sea bass, or landed black sea bass during the proposed closed seasons (January 1-May 31 and October 1-December 21). Analysis concluded that 6.44 percent of federally permitted party/charter vessel trips could be affected by this alternative.

The non-preferred black sea bass coastwide alternative for status quo (Black Sea Bass Alternative 2; 12.5-inch (31.75-cm) minimum fish size, 25-fish per person possession limit, and no closed season) is not expected to constrain 2010 landings to the recreational harvest limit; therefore, continuation of those measures in Federal waters would be inconsistent with the FMP and the Magnuson-Stevens Act.

Black Sea Bass Alternative 3 (a 12.5-inch (31.75-cm) minimum fish size, 10-fish per person possession limit, and May 22-September 12 fishing season), would reduce landings by 44 percent. Implementation of this alternative would result in a greater reduction than is required for the 2010 recreational black sea bass fishery.

Black Sea Bass Alternative 4, (a 12.5-inch (31.75-cm) minimum fish size, 25-fish per person possession limit, and May 22-August 8 and September 4-October 4 fishing seasons), is expected to reduce landings by 44 percent from 2009 levels. Affected trips are defined as trips taken in 2009 that landed one black sea bass smaller than 12.5 inches, landed more than 25 black sea bass, or landed black sea bass during closed seasons. Analysis concluded that 3.88 percent of Northeast party/charter trips could be affected by the measures of Black Sea Bass Alternative 4. The Council concluded that the different seasons and possession limits proposed under Alternative 4 provide a lesser negative impact than do the measures of Alternative 3, which is also projected to achieve the currently required 44-percent reduction in landings.

NMFS may consider further liberalization of the 2010 black sea bass fishing season utilized in concert with a 12.5-inch (31.75-cm) minimum fish size, 25-fish per person possession limit if analysis of final 2009 data indicate that action is justified. If such liberalization occurs with the addition of fishing days in either the August 9-September 3 closed season or after October 5, the impact to party/charter vessels would be further reduced.

Regionally, projected federally permitted party/charter revenue losses in 2010 range from $6.4 million to $21.9 million in sales, $2.1 to $7.3 million in income, and between 128 and 437 jobs, if a 25-percent reduction in the number of affected trips occurs. The estimated losses are approximately twice as high if a 50-percent reduction in affected trips is assumed to occur. Potential revenue losses in 2010 could differ for federally permitted party/charter vessels that land more than one of the regulated species. The cumulative maximum gross revenue loss per vessel varies by the combination of permits held and by state. All 24 potential combinations of management alternatives for summer flounder, scup, and black sea bass are predicted to affect party/charter vessel revenues to some extent in all of the Northeast coastal states. Although potential losses were estimated for party/charter vessels operating out of ME and NH, these results are suppressed for confidentiality purposes. Average party/charter losses for federally permitted vessels operating in the remaining states are estimated to vary across the 24 combinations of alternatives. For example, in NY, average losses are predicted to range from a high of $5,990 to a low of $1,474 per vessel, assuming a 25-percent reduction in effort, as described above. Average gross revenue losses per vessel under each of the 24 combinations of alternatives were generally highest in NC followed by MA, NY, MD, NJ, RI, VA, CT then DE. Across states, average gross projected revenue losses range from a low of $399 per vessel in DE to $44,434 in NC.

The 2010 recreational harvest limits for summer flounder, scup, and black sea bass are 20-, 16-, and 60-percent higher, respectively, than the recreational harvest limits for 2009. However, current projection estimates of 2009 recreational landings indicate that scup will exceed the 2009 recreational harvest limit by 80 percent, and black sea bass landings will exceed the recreational harvest limit by 190 percent, based on data through MRFSS Waves 1-4. No overages are projected in the 2009 summer flounder recreational fishery.

As a result, the proposed recreational management measures for summer flounder in the Commission's conservation equivalency are likely to be similar or slightly more liberal for 2010 (i.e., either smaller minimum fish size, higher possession limits, and/or longer fishing seasons) under the proposed conservation equivalency system (Summer Flounder Alternative 1) than those in place in 2009. If the Commission approves state-developed measures as conservational equivalent to the coastwide measures, measures for Federal waters adopted by waiving § 648.4(b) may also be similar or slightly liberal for 2010 if NMFS approves conservation equivalency in the final rule.

The proposed measures for both scup and black sea bass are more restrictive than the measures in place for 2009.

The proposed management measures, or management system in the case of conservation equivalency, were chosen because they allow for the maximum level of recreational landings, while allowing the NMFS to achieve the objectives of the FMP. Summer flounder conservation equivalency permits states to implement management measures tailored, to some degree, to meet the needs of their individual recreational fishery participants, provided the level of reduction is equal to the overall reduction needed coastwide, consistent with Framework Adjustment 2 to the FMP.

The proposed measures for scup are expected to achieve the required reduction in 2010 landings from 2009 levels, provided that comparable state measures are implemented through the Commission. Because it appears likely that the 2010 Commission measures may differ from Federal measures, NMFS will consider public comment and more closely examine the Commission measures to determine the likelihood that overfishing could occur as a result of the combined proposed Federal and Commission measures before publishing a final rule. The majority of scup recreational harvest occurs within state waters.

The proposed black sea bass management measures were selected because they are the only set of measures proposed by the Council that are projected permit the maximum amount of landings under the 2010 recreational harvest limit. As stated elsewhere in the preamble, NMFS will consider final 2009 landings data and public comment, and may extend the 2010 black sea bass fishing season, consistent with measures designed to achieve the 2010 recreational harvest limit, in the final rule.

There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

Fisheries, Fishing, Reporting and recordkeeping 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. Section 648.102 is revised to read as follows: