        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-2009-0175; FRL-8897-2]
        National Oil and Hazardous Substance Pollution Contingency Plan; Montclair/West Orange and Glen Ridge Radium Superfund Sites; National Priorities List

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule; National Priorities List; notice of intent to delete.

          SUMMARY:
          The Environmental Protection Agency (EPA)—Region II is issuing a Notice of Intent to Delete the Montclair/West Orange and Glen Ridge Radium Superfund Sites located in Montclair, West Orange, Glen Ridge, Bloomfield and East Orange, New Jersey from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). EPA and the State of New Jersey, through the Department of Environmental Protection, have determined that all appropriate response actions under CERCLA have been completed. However, this deletion does not preclude future actions under Superfund.

          DATES:
          Comments must be received by May 29, 2009.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2009-0175, by one of the following methods:
          • http://www.regulations.gov—Follow on-line instructions for submitting comments.
          • E-mail: donovan.betsy@epa.gov.

          • Fax: To the attention of Betsy Donovan at 212-637-4439.
          • Mail: To the attention of Betsy Donovan, Remedial Project Manager, Emergency and Remedial Response Division, U.S. Environmental Protection Agency—Region 2, 290 Broadway, 19th Floor, New York, NY 10007-1866.
          • Hand delivery: Superfund Records Center, 290 Broadway, 18th Floor, New York, NY 10007-1866 (telephone: 212-637-4308). Such deliveries are only accepted during the Center's normal hours of operation (Monday to Friday from 9 a.m. to 5 p.m.). Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-2009-0175. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means that EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket:All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:
          U.S. Environmental Protection Agency—Region 2, Superfund Records Center, 290 Broadway, 18th Floor, New York, NY 10007-1866, Phone: 212-637-4308. Hours: Monday to Friday 9 a.m. to 5 p.m.
          Montclair Public Library Reference Department, 50 South Fullerton Avenue, Montclair, New Jersey 07042, Phone 973-744-0500. Hours: Monday to Thursday 10 a.m. to 9 p.m.; Friday & Saturday 10 a.m. to 5 p.m.; and Sunday 1 p.m. to 5 p.m.
          The Township of West Orange Health Department, 66 Main Street, Room 203, West Orange, New Jersey 07052, Phone 973-325-4120. Hours: Monday to Friday 8:30 a.m. to 4:30 p.m.
          Glen Ridge Public Library Reference Department, 240 Ridgewood Avenue, Glen Ridge, New Jersey 07028, Phone 973-748-5482. Hours: Monday 9 a.m. to 8 p.m.; Tuesday 9 a.m. to 5 p.m.; Wednesday 9 a.m. to 8 p.m.; and Thursday, Friday, Saturday 9 a.m. to 5 p.m.

          FOR FURTHER INFORMATION CONTACT:

          Ms. Betsy Donovan, Remedial Project Manager, by mail: Emergency and Remedial Response Division, U.S. Environmental Protection Agency—Region 2, 290 Broadway, 19th Floor, New York, NY 10007-1866; (or) telephone (212) 637-4369; (or) fax (212) 637-4439; (or) e-mail donovan.betsy@epa.gov.

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Introduction
          II. NPL Deletion Criteria
          III. Deletion Procedures
          IV. Basis for Intended Site Deletion

        I. Introduction
        EPA Region 2 announces its intent to delete the Montclair/West Orange and Glen Ridge Radium Superfund Sites from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR Part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) that EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Trust Fund or Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

        EPA will accept comments on the proposal to delete this site for thirty (30) days after publication of this document in the Federal Register.

        Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Montclair/West Orange and Glen Ridge Radium Superfund Sites and demonstrates how they meet the deletion criteria.

        II. NPL Deletion Criteria
        The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
        i. Responsible parties or other persons have implemented all appropriate response actions required;
        ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
        iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
        EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the Hazard Ranking System.
        III. Deletion Procedures
        The following procedures apply to deletion of these Sites:
        (1) EPA consulted with the State before developing this Notice of Intent to Delete.
        (2) EPA provided the State with 30 working days for review of this notice prior to publication of it today.
        (3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.
        (4) The State of New Jersey, through the Department of Environmental Protection, has concurred with the proposed deletion of the Sites from the NPL.

        (5) Concurrently with the publication of this Notice of Intent to Delete in the Federal Register, notices are being published in major local newspapers, The Montclair Times, The West Orange Chronicle, The Glen Ridge Paper, Bloomfield Life, and East Orange Record. The newspaper notices announce the 30-day public comment period concerning the Notice of Intent to Delete the Sites from the NPL.
        (6) EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the information repositories for the Sites identified above.

        If comments are received within the 30-day public comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Sites, the Regional Administrator will publish a final Notice of Deletion in the Federal Register. Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and in the site information repositories listed above.
        Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
        IV. Basis for Intended Site Deletion
        The following information provides EPA's rationale for deleting these Sites from the NPL:
         A. Site Background and History
        The Montclair/West Orange Radium Superfund Site, CERCLIS ID Number NJD980785653, and the Glen Ridge Radium Superfund Site, CERCLIS ID Number NJD980785646, are located in Montclair, West Orange, Glen Ridge, Bloomfield and East Orange, Essex County, New Jersey.
        The Montclair/West Orange and Glen Ridge Radium Sites are identified as two Sites on the Superfund National Priorities List (NPL). Although listed separately on the NPL, the two Sites are addressed jointly due to their geographic proximity and similar characteristics. The two Sites include three non-contiguous areas located in five residential communities of suburban Essex County in northeastern New Jersey, about 12 miles west of New York City. The Sites cover a total area of approximately 250 acres and include 900 residential and 24 municipal properties. Municipal properties are areas such as city streets, lots and parks.
        Radium research and the radium products industry were prevalent in northern New Jersey from the early 1900s to the late 1920s. Radium was used to destroy cancerous tissue and as a pigment in luminous paint on wrist watch dials, gun sights, survey equipment, and instrument panels for airplanes and submarines.
        The U.S. Radium Corporation, formerly known as the Radium Luminous Material Corporation, operated a facility in Orange, New Jersey from 1915 through 1926. The main activity at the facility involved the extraction and purification of radium from carnotite ore. At its peak, up to two tons of ore per day were processed at the plant. The extraction process removed about 85 percent of the radium. Because it was not economically feasible to remove all of the radium, the ore processing wastes contained residual amounts of radium and other radiological contaminants. Each ton of ore yielded five to seven milligrams of radium, which is a quantity no bigger than an average grain of sand. Consequently, a large volume of process wastes, or tailings, containing residual radioactive materials were generated and dumped in undeveloped, low-lying and marshy areas.
        The Montclair/West Orange and Glen Ridge Sites were originally identified in 1979 by the New Jersey Department of Environmental Protection (NJDEP) as part of a program to investigate former radium processing facilities in the State. It was recognized that radioactive ore processing wastes could have been disposed at locations distant from the ore processing facilities.
        In 1981, NJDEP requested that EPA conduct an aerial gamma radiation survey of a 12-square-mile area surrounding a former ore processing facility in Essex County. The EPA survey identified a number of locations with elevated levels of gamma radiation in Montclair and Glen Ridge, as well as the former U.S. Radium processing facility in nearby Orange, New Jersey, which is being addressed as a separate NPL site. The two Sites were proposed for inclusion on the NPL in October 1984 (49 FR 40320), and were formally added in February 1985 (50 FR 6320) in a special listing process.

        On December 6, 1983, the Centers for Disease Control (CDC) issued a health advisory recommending immediate action to reduce the human health risks at the Sites. In response, EPA installed radon mitigation systems to reduce indoor radon gas concentrations in homes where radon measurements exceeded the recommended levels. Shielding (e.g., lead) was also installed in areas with excessive gamma radiation measurements to reduce potential exposures. The systems and shielding were installed as temporary measures until a soil cleanup program could be implemented to permanently remove the source of the radon gas and gamma radiation.
        B. Remedial Investigation and Feasibility Study
        In 1983, follow-up ground investigations were conducted in the areas exhibiting elevated surface gamma radiation as identified by the 1981 aerial survey. Investigations found that the soil was contaminated primarily with radionuclides in the uranium decay chain, including isotopes of radium, thorium, uranium and lead. The main radionuclide of concern was radium-226, because its radioactive decay can cause elevated indoor concentrations of radon gas and radon decay products. Radon monitoring in the study areas found many homes with radon gas above the recommended action level. In addition, some properties exhibited elevated levels of indoor and outdoor gamma radiation. Radionuclides are known human carcinogens. Long-term exposure to indoor radon and gamma radiation posed the major health threats at the Sites.
        In May 1984, EPA and NJDEP jointly planned a pilot study to evaluate the feasibility of excavation and off-site disposal of the radium-contaminated soil. Twelve properties with varying degrees of contamination were selected for the pilot study and preliminary engineering assessments were prepared. In November 1984, EPA decided to forego the pilot study and instead began a comprehensive remedial investigation and feasibility study (RI/FS) to determine the nature and extent of the contamination and to identify cleanup alternatives. NJDEP proceeded with the pilot cleanup project on its own and began to excavate contaminated soil in June 1985. Nevada revoked the waste disposal permit, stranding thousands of drums and stalling cleanup at several properties, while other disposal solutions were identified, and a lawsuit over the permit revocation went to the U.S. Supreme Court. Eventually, all drums were disposed at licensed facilities in late 1988. The pilot study demonstrated that excavation of the contaminated soil was a feasible remedial action, but that transportation and disposal of the contaminated material would make excavation and off-site disposal a very tenuous cleanup approach.
        The initial RI/FS report was released in September 1985 and during a November 1985 public meeting, EPA identified excavation of the contaminated soil along with off-site disposal as the preferred cleanup solution. However, the lack of a disposal facility and transportation uncertainties, as demonstrated by NJDEP's pilot study, would likely delay the implementation of such a remedy. This led EPA to initiate a supplemental feasibility study in March 1987 to research other cleanup alternatives, including additional interim measures. The supplemental feasibility study and proposed plan were made available to the public in April 1989.
        Groundwater at the Sites was investigated; a June 2005 focused feasibility study was undertaken after the majority of the soil cleanup work had been completed. Investigation data and other studies indicated that any site-related impacts to the groundwater had been removed by the extensive soil cleanup effort and that groundwater quality at the Sites was comparable to background for the area.
        C. Selected Remedy

        Records of Decision (RODs) (one for each NPL site) were signed on June 30, 1989. These initial RODs selected a permanent remedy consisting of full excavation and off-site disposal for residential properties with the most extensive contamination and provided an interim solution (i.e., limited excavation, engineering/institutional controls) for other properties where radon gas or indoor gamma radiation levels exceeded health guidelines. EPA made the decision to begin excavation of contaminated soil after a disposal facility that could accept a large quantity of radiological waste became available in 1990.
        The subsequent remedy selected in the 1990 RODs (one for each NPL site) provided a permanent solution for the radium-contaminated soil at all properties (residential and municipal) and included the excavation of all soil exceeding the cleanup criteria. The remedy also called for environmental monitoring, as necessary, to ensure its effectiveness.
        The remedial action objective was to reduce, to the lowest practical levels, the existing public health threats posed by indoor radon and radon decay product concentrations, indoor and outdoor gamma radiation levels, and the inhalation or ingestion of radium-contaminated materials. Construction activities were undertaken via a series of remedial action and disposal contracts awarded by the U.S. Army Corps of Engineers and funded by the EPA Superfund Trust Fund with a 10-percent share provided by the State of New Jersey.
        The September 2005 RODs (one for each NPL site) for groundwater called for no action, based on investigation data and other studies indicating that any site-related impacts to the groundwater have been removed by the extensive soil remedial action and that groundwater quality at the Sites was comparable to background for the area. Public water is available in all five communities and there is no known use of the groundwater as a drinking water source at the present time. Risks associated with use of the site groundwater are in the same range as those estimated for groundwater regionally and are not related to the CERCLA releases, which have been addressed under the soil cleanup.
        D. Response Actions
        Architectural and engineering (A/E) firms under contract with the U.S. Army Corps of Engineers prepared designs for all cleanup work. Remedial designs were based on soil investigation data, consisting of samples collected and analyzed from boreholes. Four-inch diameter boreholes were typically augered by hand; samples were collected at six-inch intervals down to sixteen feet or more below the surface, where native soils were encountered. These sample results were used to plot the areas to be excavated to accomplish removal of the contaminated material. Primary excavation areas were designed to facilitate the removal of material that exceeded the cleanup criteria. Secondary excavation areas were designed to indicate where additional excavation might be required, due to the proximity of contamination, the presence of man-made fill material, or the presence of material exhibiting marginal concentrations below the cleanup criteria. Other project support services such as the maintenance of a field office compound, on-site quick count laboratory, verification sampling, data reporting, property status tracking, and structural assessments were included in the remedial design contract. Designs were prepared with civil survey data and detailed inventories of existing landscape and structural features on each property, as a reference for the post-excavation restoration.

        Construction was completed in phases and included 340 residential and 16 municipal properties. The cleanup and restoration work on each individual property typically took from six to nine months to complete. The EPA soil cleanup effort took approximately 14 years to complete (1990 to 2004). About 100 families were temporarily relocated when the construction work (sub-slab excavation, utility disruptions, no access to dwelling, etc.) precluded safe occupancy of the homes. Perimeter and on-site air monitoring was conducted for dust, radionuclides, and organic vapors during construction. Primary soil excavation was carried out according to the remedial design drawings and followed by confirmatory sampling per the project specifications. Secondary excavation was undertaken, by approval of EPA, if contamination was found beyond the limits of the primary excavation areas. Contaminated soil and debris were removed from each property by heavy equipment and loaded into containers. At residential properties with contamination beneath the basement slab, the material was removed by vacuum truck and then loaded into containers for transport. A majority of the contaminated material was transported by 28-cubic yard intermodal containers. Intermodal containers allowed transport by truck and rail without the need to handle the waste numerous times. Once the soil and debris were loaded, the containers were sealed and waste shipping manifests prepared. Containers were trucked to a transloading facility in Newark, New Jersey. After inspection, the containers were loaded onto railcars for transport to regulated and approved disposal facilities.
        Disposal facilities were selected utilizing the U.S. Army Corps of Engineers—Kansas City District's pre-placed radiological disposal contracts. Radiological contaminated materials were disposed at Envirocare of Utah, Inc., located in Clive, Utah, and at U.S. Ecology Idaho, Inc., located in Grandview, Idaho.
        Excavated areas were sampled to ensure that the contamination had been removed. After completion of the testing, the excavated areas were backfilled with clean fill material. Proposed backfill sources were tested to ensure they did not exceed the remediation goals and met the contract specifications. The backfill and topsoil were sampled at least every 5,000 cubic yards for radium, gamma radiation, EPA's target analyte list for metals, and EPA's target analyte compound list for volatile organic compounds. Properties were restored to pre-construction conditions with in-kind replacements or repairs to property damaged during excavation of contamination, including sidewalks, driveways, garages, decks, steps, porches, basement interiors, landscaping, fences, etc. All properties were restored in accordance with the contract restoration plans and landscaping specifications, as nearly as possible to their original conditions.
        Since hazardous substances do not remain at the Montclair/West Orange and Glen Ridge Superfund Sites above health based levels for unrestricted use, there is no operation and maintenance or five-year review activities required.
        E. Cleanup Goals
        Health-based cleanup goals were identified in the RODs or subsequent documents and guidance, as follows: radon—4 picoCuries per liter (pCi/l); radon decay products—0.2 Working Levels (WL); gamma radiation rate—20 microRoentgens per hour (μR/hr); radium in soil 5—picoCuries per gram (pCi/g); radium-226 + thorum-232 ≤ 7 pCi/g in soil.
        Two independent companies, the remedial action contractor and the A/E firm, sampled excavated areas to ensure that the contamination had been removed and cleanup goals were achieved. Year-long radon tests were performed at each residential property following the soil cleanup work to confirm that radon source material had been removed. All property owners received a final data package with post-excavation testing results for their records. In addition, the five municipalities received information for all properties included in the project areas for their records.
        F. Community Involvement
        Public availability sessions and public meetings for the local community and government officials were held throughout the project. EPA, the U.S. Army Corps of Engineers and the remedial action contractor provided written notices and updates involving work schedules and activities on a continuous basis for the immediate neighborhood and town officials. EPA also established a field office in close proximity to the Sites in Montclair, where project management and community involvement staff were located for nearly twenty years while directing and overseeing the cleanup.
        G. Determination That Sites Meet Criteria for Deletion in the NCP
        In accordance with the NCP at 40 CFR 300.425(e)(1)(ii), EPA and the State of New Jersey have determined that all appropriate Fund-financed response actions under CERCLA has been implemented at the Sites, and no further response action by responsible parties is appropriate. By letters February 19, 2009, from Irene Kropp, Assistant Commissioner of the NJDEP, the State concurred with the proposed deletion of the Sites from the NPL. Therefore, EPA, with the concurrence of the State of New Jersey, is proposing the deletion of the Sites from the NPL. While EPA and the State of New Jersey have determined that the Sites do not require further response, the Sites do remain eligible for further Fund-financed remedial action should future conditions warrant such action.
        All of the completion requirements for the Sites have been met as described in the Superfund Final Close-Out Report, dated January 26, 2009. Documents supporting this action are available in the Sites files and deletion docket.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

          Authority:
          33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.

          Dated: April 14, 2009.
          George Pavlou,
          Acting Regional Administrator, EPA—Region 2.

      [FR Doc. E9-9648 Filed 4-28-09; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 170630611-8032-01]
        RIN 0648-BH01
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic; Regulatory Amendment 4

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to implement management measures described in Regulatory Amendment 4 to the Fishery Management Plan for Spiny Lobster in the Gulf of Mexico and South Atlantic (FMP), as prepared and submitted by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils). If implemented, this proposed rule would increase the annual catch limit (ACL) for spiny lobster based on updated landings information and revised scientific recommendations. This proposed rule would also prohibit the use of traps for recreational harvest of spiny lobster in the South Atlantic exclusive economic zone (EEZ) off Georgia, South Carolina, and North Carolina. The purposes of this proposed rule and Regulatory Amendment 4 are to ensure catch levels for spiny lobster are based on the best scientific information available, to prevent overfishing, and to minimize potential negative effects of traps on habitat and protected species interactions in the South Atlantic EEZ.

          DATES:
          Written comments must be received on or before March 4, 2018.

          ADDRESSES:
          You may submit comments on the proposed rule identified by “NOAA-NMFS-2017-0125” by any of the following methods:
          • Electronic submissions: Submit electronic comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0125, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit all written comments to Nikhil Mehta, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Electronic copies of Regulatory Amendment 4, which includes an environmental assessment and a regulatory flexibility analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office website at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_sa/spiny_lobster/A4_lobster_acl/a4_lobster_acl_index.html.

          FOR FURTHER INFORMATION CONTACT:
          Nikhil Mehta, telephone: 727-824-5305, or email: nikhil.mehta@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C 1801 et seq.).
        Background
        In 2012, NMFS implemented Amendment 10 to the FMP, which included an overfishing limit (OFL), acceptable biological catch (ABC), ACL, annual catch target (ACT), accountability measure (AM), and status determination criteria for spiny lobster (76 FR 75488; December 2, 2011). The OFL and ABC were specified using Tier 3a of the Gulf Council's ABC Control Rule (control rule), as recommended by the Scientific and Statistical Committees (SSCs) of the South Atlantic and Gulf of Mexico Fishery Management Councils (Councils). Applying the control rule, the SSCs recommended an OFL equal to the mean of the most recent 10 years of landings (fishing years 2000/2001 through 2009/2010) plus 2 standard deviations, and an ABC equal to the mean of the most recent 10 years of landings plus 1.5 standard deviations. This resulted in an OFL of 7.9 million lb (3.58 million kg) and an ABC of 7.32 million lb (3.32 million kg). The maximum sustainable yield (MSY) proxy and overfishing threshold (maximum fishing mortality threshold (MFMT)) were set equal to the OFL. The ACL was set equal to the ABC. The ACT, which equals the optimum yield (OY), was set at 90 percent of the ACL.

        Since that time, the spiny lobster ACT has been exceeded three times, the ACL has been exceeded twice, and the OFL has been exceeded once. The AM established in Amendment 10 requires that the Councils convene a review panel if the spiny lobster ACT is exceeded, and the National Standard 1 guidelines state that if the ACL is exceeded more than once in a 4-year period, then the system of ACLs and AMs should be re-evaluated and modified, as necessary, to improve its performance and effectiveness (50 CFR 600.310(g)(7)). Therefore, The Councils convened a Spiny Lobster Review Panel (Review Panel) in February 2015, and again in March 2016, to assess whether action was needed to prevent the ACL from being exceeded. The Review Panel recommended that the catch levels for spiny lobster be based on the mean of landings during the fishing years 1991/1992 through 2015/2016, which is a longer time period than the 10-year period that was used to determine the current catch levels (fishing years 2000/2001 through 2009/2010). This is because the landings were historically low during the 2000/2001 through 2009/2010 time period used for the calculation of the current catch levels. The Review Panel determined that using the longer time period to calculate catch levels would better capture the dynamics of the fishery. Both SSCs agreed with the Review Panel and recommended using the longer time series of landings under Tier 3a of the control rule for setting the OFL and ABC. Using the longer time series of landings results in a revised OFL of 10.46 million lb (4.74 million kg) and a revised ABC of 9.60 million lb (4.35 million kg). Although the revised OFL and ABC are higher than the current OFL and ABC, using the longer time series is a more precautionary approach for calculating OFL and ABC than using the most recent 10 years of landings (2006/2007 through 2015/2016) because these landings have been historically high. The longer time series incorporates periods of both low and high landings.
        Management Measures Contained in This Proposed Rule
        This proposed rule would modify the stock ACL and ACT for spiny lobster and prohibit the use of traps for the recreational harvest of spiny lobster in the South Atlantic EEZ.
        Stock ACL and ACT
        This proposed rule would revise the stock ACL and ACT based on the new ABC recommendation provided by the Councils' SSCs. As stated above, the current spiny lobster stock ACL is equal to the ABC, and the stock ACT is set at 90 percent of the ACL. This proposed rule would set the ACL equal to the ABC of 9.60 million lb (4.35 million kg), which is based on the mean landings from the years 1991/1992-2015/2016 plus 1.5 standard deviations. The ACT would be set at 8.64 million lb (3.92 million kg), which is 90 percent of the proposed ACL. As established in Amendment 10, the OY equals the ACT. NMFS does not expect the increase in the ACT and ACL to result in negative biological effects on the stock because current fishing effort is limited by the number of trap tags issued by the state of Florida, by commercial and recreational bag and possession limits in the EEZ in the South Atlantic and the Gulf EEZ, and by the duration of the fishing season, which varies depending on the area where spiny lobsters are harvested.
        Recreational Harvest of Spiny Lobster Using Traps in the South Atlantic EEZ
        Currently, the use of traps is not allowed for recreational harvest of spiny lobster in the EEZ off Florida, but traps may be used for recreational harvest of spiny lobster in the South Atlantic EEZ off the states of Georgia, South Carolina, and North Carolina. This proposed rule would prohibit the use of traps for recreational harvest of spiny lobster in all of the South Atlantic EEZ.
        The public has expressed little interest in using traps for the recreational harvest of spiny lobster, which may be a result of the two lobsters per person per trip limit applicable to harvest from Federal waters of the South Atlantic. However, the Councils are concerned that using this gear may become more popular and result in potential negative impacts on essential fish habitat and an increase in the use of vertical lines that may interact with protected species, for example, by creating entanglement issues. Trap gear also has the potential to “ghost fish,” which occurs when a trap continues to fish after it is lost. Because spiny lobsters are larger in size in the EEZ off Georgia, South Carolina, and North Carolina than in the EEZ off Florida, current trap configuration may not be efficient in capturing spiny lobster in these areas, and recreational traps used in these areas may require larger mouths (entrances), which could result in greater bycatch of fish, crabs, and other invertebrates, including undersized spiny lobsters.
        Measures in Regulatory Amendment 4 Not in Codified Through This Proposed Rule
        As established in Amendment 10, the MSY proxy and MFMT are equal to the OFL, which was set at 7.9 million lb (3.58 million kg). Consistent with Amendment 10, Regulatory Amendment 4 would modify the MSY proxy and MFMT values, so that they are equal to the revised OFL of 10.46 million lb (4.74 million kg).
        Corrections in This Proposed Rule Not Included in Regulatory Amendment 4
        In addition to the measures associated with Regulatory Amendment 4, this proposed rule would also correct regulatory language that was mistakenly included in the final rule implementing Amendment 10. Amendment 10 modified the restrictions on the possession of undersized spiny lobsters for use as attractants in the commercial sector. Prior to Amendment 10, no more than fifty undersized spiny lobsters, or one per trap aboard the vessel, whichever was greater, could be retained on board for use as attractants. Amendment 10 changed this restriction to allow for no more than fifty per vessel plus one per trap aboard the vessel. This change was correctly included in the proposed rule to implement Amendment 10 (76 FR 59102; September 23, 2011), but was inadvertently changed in the final rule to include the additional phrase (from the prior language), “whichever is greater” (76 FR 75488; December 2, 2011). The final rule also inadvertently included this restriction twice in the applicable paragraph. To correct these mistakes, this proposed rule would change 50 CFR 622.407(c) to remove the phase “whichever is greater” and remove the first occurrence of the duplicative sentence. This proposed rule would also change the wording of the restriction slightly to more directly state that the total number of undersized spiny lobster allowed onboard a vessel is fifty plus one per trap. The restriction currently states: “No more than fifty undersized spiny lobsters, and one per trap aboard the vessel, may be retained aboard for use as attractants.” The proposed rule would change the “and” to “plus” so that the sentence reads: “No more than fifty undersized spiny lobsters plus one per trap aboard the vessel may be retained aboard for use as attractants.”
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Regulatory Amendment 4, the FMP, 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.

        The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this proposed rule and its purpose and need are contained in the SUMMARY section of the preamble.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is described below.
        This proposed rule would directly affect commercial and recreational fishing for spiny lobster in the Gulf EEZ and the South Atlantic EEZ. Anglers (recreational fishers) are not considered small entities as that term is defined in 5 U.S.C. 601(6). Consequently, estimates of the number of anglers directly affected by the rule and the impacts on them are not provided here.
        Any commercial fishing business that operates a fishing vessel that lands whole spiny lobster in the Gulf EEZ and/or the South Atlantic EEZ, except off Florida, must have a valid Federal spiny lobster permit that is specifically assigned to that vessel. In the EEZ off Florida, a commercial vessel must have either a valid Federal spiny lobster permit or all required Florida licenses and certificates to harvest the species. Any vessel that lands only the tail from a spiny lobster caught in the EEZ must have a Federal tailing permit on board in addition to either a valid Federal spiny lobster permit or all required Florida licenses and certificates. Both Federal permits are open access permits.

        As of March 1, 2017, there were 185 Federal spiny lobster and 210 spiny lobster tailing permits issued to a total of 272 vessels. Approximately 45 percent of those vessels have both Federal permits. These 272 vessels make up the federally permitted spiny lobster fleet. Approximately 75 percent of the Federal permits are held by businesses in Florida, followed in turn by those in North Carolina with approximately 12 percent. Florida businesses account for all but one of the vessels with only a tailing permit. NMFS estimates a total of 198 businesses hold all of the Federal spiny lobster permits assigned to the above 272 vessels.
        The individual businesses have from 1 to 11 vessels in the federally permitted spiny lobster fleet. Approximately 84 percent of the 198 businesses have only one vessel in the fleet, and collectively these businesses account for 61 percent of the 272 federally permitted vessels. Approximately 95 percent of the businesses have no more than 2 vessels, while 3 percent have 6 or more vessels and collectively make up approximately 18 percent of the 272 vessels.
        Approximately 99 percent of commercial landings of spiny lobster occur in Florida. Hence, NMFS expects that almost all of the impacts of the rule will be on commercial fishing businesses located in Florida, and within Florida, approximately 91 percent of the state's landings are in Monroe County.
        For purposes of the Regulatory Flexibility Act, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily involved in commercial fishing (NAICS 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $11 million for all of its affiliated operations worldwide. NMFS expects that most to all of the businesses that harvest spiny lobster in the EEZ (with or without a Federal permit) are small businesses, based on historical average annual revenues per vessel that are less than $50,000.
        Regulatory Amendment 4 would revise the MSY proxy and MFMT. Those revisions would have no direct impact on any small businesses, and any indirect impact is dependent on subsequent action.
        This proposed rule would increase the ACL to 9.60 million lb (4.35 million kg), and ACT to 8.64 million lb (3.92 million kg), whole weight. There would be no impact on small businesses, however, because there is no Federal closure if landings reach or are projected to reach the ACL or ACT.
        In conclusion, NMFS expects this proposed rule would not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required, and none has been prepared.
        No new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, this proposed rule does not implicate the Paperwork Reduction Act.

          List of Subjects in 50 CFR Part 640
          Fisheries, Fishing, Gulf, South Atlantic, Spiny lobster, Trap.

           Dated: January 30, 2018.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR parts 600 and 622 are proposed to be amended as follows:

          PART 600—MAGNUSON-STEVENS ACT PROVISIONS

        1. The authority citation for part 600 continues to read as follows:

          Authority:
          5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

          Subpart R—Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic

        2. In § 600.725, in the table in paragraph (v), under heading “III. South Atlantic Fishery Management Council,” under entry 7, revise entry B pertaining to the “Recreational fishery” in the “Authorized gear types” column to read as follows:

          § 600.725
          General prohibitions.

          (v) * * *

              Fishery
              Authorized gear types

              *         *         *         *         *         *         *

                III. South Atlantic Fishery Management Council

              *         *         *         *         *         *         *

              7. South Atlantic Spiny Lobster Fishery (FMP):

              *         *         *         *         *         *         *

              B. Recreational fishery
              B. Dip net, bully net, snare, hand harvest.

              *         *         *         *         *         *         *

          PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

        3. The authority citation for part 622 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq.

        4. In § 622.404, add paragraph (d) to read as follows:

          § 622.404
          Prohibited gear and methods.

          (d) Except for black sea bass pots and golden crab traps as allowed in § 622.188 and § 622.248, respectively, the possession of all other traps is prohibited onboard a vessel in the South Atlantic EEZ when spiny lobster subject to the recreational bag and possession limits specified in § 622.408 is also onboard the vessel. The recreational harvest of spiny lobster using a trap is prohibited in the South Atlantic EEZ.

        5. In § 622.407, revise paragraph (c) to read as follows:

          § 622.407
          Minimum size limits and other harvest limitations.

          (c) Undersized attractants. A live spiny lobster under the minimum size limit specified in paragraph (a)(1) of this section that is harvested in the EEZ by a trap may be retained aboard the harvesting vessel for future use as an attractant in a trap provided it is held in a live well aboard the vessel. The live well must provide a minimum of 3/4 gallons (1.7 liters) of seawater per spiny lobster. An undersized spiny lobster so retained must be released to the water alive and unharmed immediately upon leaving the trap lines and prior to one hour after official sunset each day. No more than fifty undersized spiny lobsters plus one per trap aboard the vessel may be retained aboard for use as attractants.

        6. Revise § 622.411, to read as follows:

          § 622.411
          Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).
          For recreational and commercial spiny lobster landings combined, the ACL is 9.60 million lb (4.35 million kg), whole weight. The ACT is 8.64 million lb, (3.92 million kg) whole weight.

      [FR Doc. 2018-02119 Filed 2-1-18; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AJ10

        Endangered and Threatened Wildlife and Plants; Notice of Availability of the Draft Economic Analysis on the Proposed Designation of Critical Habitat for Allium munzii (Munz's onion)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of availability of draft economic analysis and reopening of public comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the availability of a draft economic analysis on the proposed designation of critical habitat for the federally endangered Allium munzii (Munz's onion), and the reopening of the public comment period on the proposed rule to designate critical habitat for Munz's onion. The comment period will provide the public, Federal, State, and local agencies, and Tribes with an opportunity to submit written comments on this proposal and its respective draft economic analysis. Comments previously submitted for this proposed rule need not be resubmitted as they have already been incorporated into the public record and will be fully considered in any final decision.

          DATES:
          We will accept all comments and information until 5 p.m. on or before January 3, 2005. Any comments received after the closing date may not be considered in the final decisions on this action.

          ADDRESSES:

          Written comments and materials may be submitted to us by one of the following methods:

          1. You may submit written comments and information to the Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.
          2. You may hand-deliver written comments and information to our Carlsbad Fish and Wildlife Office, at the above address, or fax your comments to (760) 731-9618.

          3. You may send your comments by electronic mail (e-mail) to fw1cfwoalmu@r1.fws.gov. For directions on how to submit electronic filing of comments, see the “Public Comments Solicited” section.

          Comments and materials received, as well as supporting documentation used in preparation of the proposed critical habitat rule for Allium munzii (69 FR 31569) will be available for public inspection, by appointment, during normal business hours at the above address. You may obtain copies of the draft economic analysis for Allium munzii by contacting the Carlsbad Fish and Wildlife Office at the above address. The draft economic analysis and the proposed rule for critical habitat designation also are available on the Internet at http://carlsbad.fws.gov/. In the event that our Internet connection is not functional, please obtain copies of documents directly from the Carlsbad Fish and Wildlife Office at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the above address (telephone (760) 431-9440; facsimile (760) 431-9618).

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited

        We solicit comments or suggestions from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning our proposed designation of critical habitat for Allium munzii (69 FR 31569) and our draft economic analysis for the proposed critical habitat designation. We particularly seek comments concerning:
        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of exclusion outweigh the benefits of specifying such area as part of the critical habitat;
        (2) Specific information on the amount and distribution of Allium munzii and its habitat, and which habitat is essential to the conservation of the species and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
        (4) Any foreseeable economic, national security or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities or families;
        (5) Whether the economic analysis identifies and adequately addresses the likely effects and resulting costs arising from the California Environmental Quality Act and other State and local laws attributable to the proposed critical habitat designation. If not, what other cost are overlooked?;

        (6) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat for Allium munzii;

        (8) Whether the economic analysis adequately addresses the indirect effects (e.g., property tax losses due to reduced home construction, losses to local business due to reduced construction activity), and accurately defines and captures opportunity costs associated with the critical habitat designation;
        (9) Whether the economic analysis correctly assesses the effect on regional costs associated with land and water use regulatory controls that could arise from the designation of critical habitat for this species;
        (10) Whether the designation of critical habitat will result in disproportionate economic or other impacts to specific areas that should be evaluated for possible exclusion from the final designation;

        (11) Whether the economic analysis is consistent with the Service's listing regulations because this analysis should identify all costs related to the designation of critical habitat for Allium munzii and this designation was intended to take place at the time this species was listed; and
        (12) All but one known occurrence of Allium munzii have been proposed for exclusion from this proposed designation of critical habitat for because they are within approved HCPs or the Western Riverside MSHCP. These areas are proposed for exclusion from critical habitat because we believe the value of excluding these areas outweighs the value of including them. We specifically solicit comment on the inclusion or exclusion of such areas and: (a) Whether these areas are essential; (b) whether these areas warrant exclusion; and (c) the basis for excluding these areas as critical habitat (section 4(b)(2) of the Act); and
        (13) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

        Comments previously submitted for this proposed rule need not be resubmitted as they have already been incorporated into the public record and will be fully considered in any final decision. If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see
          ADDRESSES section).

        If you submit comments via e-mail, please submit them as an ASCII file and avoid the use of special characters or any form of encryption. Please also include “Attn: RIN 1018-AJ10” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your internet message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number (760) 431-9440. Please note that the e-mail address, fw1cfwoalmu@r1.fws.gov, will be closed out at the termination of the public comment period.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
        Background

          Allium munzii is a bulb-forming perennial herb in the Liliaceae (lily family). The plants are dormant except in the spring and early summer months, and 3 to 5 years are required after seeds germinate for the plant to reach maturity and produce flowers (Schmidt 1980). Allium munzii is endemic to mesic clay soils in western Riverside County, California, throughout the foothills east of the Santa Ana Mountains extending south and east to the low hills south of Hemet (69 FR 31569; June 4, 2004). At present, there are 19 occurrences of Allium munzii according to the California Natural Diversity Database (CNDDB 2004). One historical population in the CNDDB was lost to development; however, the extent of the historical distribution of this plant is unknown. At the time of listing, the Service estimated the total population to be approximately 20,000 to 70,000 individuals. Please refer to the final listing rule for a more detailed discussion of the species' taxonomic history and description.
        We published the final rule listing Allium munzii as endangered under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), in the Federal Register on October 13, 1998 (63 FR 54975). The listing was based on a variety of factors including habitat destruction and fragmentation from agricultural and urban development, clay mining, off-road vehicle activity, cattle and sheep grazing, weed abatement, fire suppression practices, and competition from alien plant species. A recovery plan for this species has not yet been completed.

        At the time of listing, we concluded that designation of critical habitat for Allium munzii was not prudent because such designation would not benefit the species. On November 15, 2001, a lawsuit was filed against the Department of the Interior (DOI) and the Service by the Center for Biological Diversity and California Native Plant Society, challenging our “not prudent” determinations for eight plants including A. munzii (No. CV-01-2101) (CBD et al. v. USDOI). A second lawsuit asserting the same challenge was filed against DOI and the Service by the Building Industry Legal Defense Foundation (BILD) on November 21, 2001 (No. CV-01-2145) (BILD v. USDOI). Both cases were consolidated on March 19, 2002, and all parties agreed to remand the critical habitat determinations to the Service for additional consideration. In an order dated July 1, 2002, the U.S. District Court for the Southern District of California directed us to reconsider our not prudent finding and publish a proposed critical habitat rule for Allium munzii, if prudent, on or before May 30, 2004.

        On June 4, 2004, we published a proposed rule to designate critical habitat for Allium munzii (69 FR 31569). We proposed to designate 227 acres (ac) (92 hectares (ha)) of critical habitat on Federal (U.S. Forest Service) lands in western Riverside County, California. We excluded 1,068 ac (433 ha) of State, local, and private lands from proposed critical habitat within approved Habitat Conservation Plans (HCPs) and the Western Riverside Multiple Species HCP (MSHCP), Riverside County, California. The first public comment period on the proposed designation closed on August 3, 2004.

        Critical habitat identifies specific areas, both occupied and unoccupied, that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act prohibits the destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act. We note, however, that a recent 9th Circuit judicial opinion, Gifford Pinchot Task Force v. United State Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to section 7 of the Act.

        Section 4(b)(2) of the Act requires that we designate or revise critical habitat on the basis of the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impacts of specifying any particular area as critical habitat. We have prepared a draft Economic Analysis of the April 27, 2004 (69 FR 31569), proposed designation of critical habitat for Allium munzii.

        The draft Economic Analysis considers the potential economic effects of actions relating to the conservation of Allium munzii, including costs associated with sections 4, 7, and 10 of the Act, and those cost attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for Allium munzii in essential habitat areas. The analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this analysis looks retrospectively at costs that have been incurred to date since the date the species was listed as endangered species, and projects those costs that may occur in the 20 years following the designation of critical habitat.
        Total economic impacts resulting from past Allium munzii-related conservation activities (i.e., activities since the species was listed in 1998) on all essential habitat are estimated to be $4.2 million. For the actual component of essential habitat being designated as critical habitat, the total estimated economic impact would be $9,866. In terms of future economic impacts, total economic efficiency costs resulting from Allium munzii-related conservation activities are estimated at $6.4 million from 2005 through 2025 for all essential habitat. For the actual component of essential habitat being designated as critical habitat, the total estimated economic efficiency costs would be $23,964 from 2005 through 2025. All of those costs are attributable to project modification and administrative costs that would be borne by the U.S. Forest Service.
        Required Determinations
        Regulatory Planning and Review
        In accordance with Executive Order 12866, this proposed designation of critical habitat is a significant rule only in that it may raise novel legal and policy issues. However, the Economic Analysis indicates that the proposed designation will not have an annual effect on the economy of $100 million or more or affect the economy in a material way. The Office of Management and Budget (OMB) has not formally reviewed this rule.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act (RFA) to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. The SBREFA also amended the RFA to require a certification statement. We are hereby certifying that this proposed rule will not have a significant effect on a substantial number of small entities.
        According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this rule as well as the types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation if they lack a Federal nexus. In areas where the species is present, Federal agencies funding, permitting, or implementing activities are already required to avoid jeopardizing the continued existence of Allium munzii through consultation with us under section 7 of the Act. If this critical habitat designation is finalized, Federal agencies must also consult with us to ensure that their activities do not destroy or adversely modify designated critical habitat through consultation with us.
        Should a federally funded, permitted, or implemented project be proposed that may affect designated critical habitat, we will work with the Federal action agency and any applicant, through section 7 consultation, to identify ways to implement the proposed project while minimizing or avoiding any adverse effect to the species or critical habitat. In our experience, the vast majority of such projects can be successfully implemented with at most minor changes that avoid significant economic impacts to project proponents.
        Based on our experience with section 7 consultations for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. The kinds of actions that may be included in future reasonable and prudent alternatives include avoidance, conservation set-asides, management of competing non-native species, restoration of degraded habitat, construction of protective fencing, and regular monitoring. These measures are not likely to result in a significant economic impact to project proponents.
        In the case of Allium munzii, our review of the consultation history for this plant suggests that the proposed designation of critical habitat is not likely to have a significant impact on any small entities or classes of small entities. We considered the potential relative cost of compliance to these small entities and evaluated only small entities that are expected to be directly affected by the proposed designation of critical habitat. Based on the consultation history for Allium munzii, we do not anticipate that the proposed designation of critical habitat will result in increased compliance costs for small entities. The business activities of these small entities and their effects on Allium munzii or its proposed critical habitat have not directly triggered a section 7 consultation with the Service under the jeopardy standard and likely would not trigger a section 7 consultation under the adverse modification standard after designation of critical habitat. The proposed designation of critical habitat does not, therefore, create a new cost for the small entities to comply with the proposed designation. Instead, proposed designation only impacts Federal agencies that conduct, fund, or permit activities that may affect critical habitat for Allium munzii. Moreover, none of the small entities have been applicants with a Federal agency for a section 7 consultation with the Service.

        As discussed in the Economic Analysis, activities in the proposed critical habitat unit are expected to result in small additional costs borne by the U.S. Forest Service and, possibly, the current special permit holders at the electric tower site. The U.S. Forest Service is a Federal agency and therefore not considered a small entity under SBREFA. In addition, only one of the four special permit holders is a small entity, and the projected impact to that small business is $250 to $1,000 in one year (representing 0.2 to 0.4 of the company's revenue). Utility companies are not expected to incur additional project-related costs in the critical habitat unit, but may incur additional costs in essential habitat areas. However, the utility companies involved do not qualify as small entities. Of the local government jurisdictions in close proximity to the critical habitat unit or essential habitat, only one qualifies as a small government. This government is not expected to be impacted by future conservation efforts for Allium munzii, according to the Economic Analysis.

        In summary, we have considered whether this proposed designation would result in a significant economic impact on a substantial number of small entities, and we have concluded that it would not. Future consultations are not likely to affect a substantial number of small entities. We have no indication that the types of activities we review under section 7 of the Act will change significantly in the future. Thus, we conclude that the proposed designation of critical habitat for Allium munzii is not likely to result in a significant impact to this group of small entities. Therefore, we are certifying that the proposed designation of critical habitat for Allium munzii will not have a significant economic impact on a substantial number of small entities, and an initial regulatory flexibility analysis is not required.

        Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.)

        Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), this rule is not a major rule. As previously discussed, we have excluded critical habitat from lands within the Western Riverside MSHCP and other HCPs under section 4(b)(2) of the Act. The exclusion of these lands and the activities associated with the Western Riverside MSHCP and HCPs eliminates the potential for critical habitat in these excluded areas to have any effect on the increase in costs or prices for consumers or any significant adverse effects on competition, employment, investment, productivity, innovation or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Moreover, 100 percent of the designated critical habitat is on Forest Service lands that are not intensively used for commercial or business purposes, and we anticipate that the designation will have little to no effect on costs or prices for consumers or any other significant commercial or business related activities. In addition, the Economic Analysis indicates that the proposed designation will not have an annual effect on the economy of $100 million or more. Therefore, we believe that this critical habitat designation will not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
        Author

        The primary authors of this notice are the staff of the Carlsbad Fish and Wildlife Office (see
          ADDRESSES section).

          Authority:

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

          Dated: November 23, 2004.
          Craig Manson,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 04-26473 Filed 11-30-04; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 120718253-2367-01]
        RIN 0648-BC30
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery off the Southern Atlantic States; Transferability of Black Sea Bass Pot Endorsements

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations to implement a revision of a disapproved action from Amendment 18A (the Resubmittal) to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region (Amendment 18A), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this rule would allow black sea bass pot endorsements to be transferred under specific conditions. The intent of this rule is to implement the transferability action originally submitted in Amendment 18A, as clarified in the Resubmittal.

          DATES:
          Written comments must be received on or before September 25, 2012.

          ADDRESSES:
          You may submit comments on the proposed rule identified by “NOAA-NMFS-2012-0128” by any of the following methods:
          • Electronic Submissions: Submit electronic comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Kate Michie, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

          To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter “NOAA-NMFS-2012-0128” in the search field and click on “search”. After you located the proposed rule, click on “Submit a Comment” link in that row. This will display the comment web form. You can enter your submitter information (unless you prefer to remain anonymous), and type your comment on the web form. You can also attach additional files (up to 10MB) in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
          Comments received through means not specified in this rule will not be considered.

          For further assistance with submitting a comment, see the “Commenting” section at http://www.regulations.gov/#!faqs or the Help section at http://www.regulations.gov.

          Electronic copies of Amendment 18A and the Resubmittal may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/SASnapperGrouperHomepage.htm. Amendment 18A includes an Environmental Impact Statement (EIS), an Initial Regulatory Flexibility Act Analysis (IRFA), a Regulatory Impact Review, and a Fishery Impact Statement. The Resubmittal includes a RIR and a FIS.

          FOR FURTHER INFORMATION CONTACT:
          Kate Michie, 727-824-5305.

        SUPPLEMENTARY INFORMATION:
        The snapper-grouper fishery of the South Atlantic is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR Part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
        Background
        Amendment 18A, implemented through final rulemaking on July 1, 2012, (77 FR 32408, June 1, 2012), includes a provision to limit participation in the black sea bass pot segment of the snapper-grouper fishery through the establishment of an endorsement program. In order to qualify for a black sea bass pot endorsement, an entity must have held a valid South Atlantic snapper-grouper unlimited permit on the effective date of the final rule implementing Amendment 18A (or July 1, 2012). In addition to this requirement, qualifying permit holders must have had average annual black sea bass landings of at least 2,500 lb (1,134 kg), round weight, using black sea bass pot gear between January 1, 1999 and December 31, 2010. Those permit holders with no reported commercial landings of black sea bass using black sea bass pot gear between January 1, 2008, and December 31, 2010, did not qualify for an endorsement. The number of South Atlantic snapper-grouper unlimited permit holders that meet these criteria as of September 10, 2012 is 32, and more endorsements could be issued after the appeals process finalizes. Only those vessels associated with a valid endorsement can legally fish for black sea bass in the South Atlantic using black sea bass pot gear.

        Amendment 18A also contained an action to allow for the transfer of black sea bass pot endorsements. However, NMFS disapproved this action because Amendment 18A and the supporting EIS incorrectly described the preferred alternative as allowing transfer of landings history without transfer of the permit. However, the following analysis of alternatives applied a correct understanding of what the preferred alternative was, i.e. that landings history would not be transferred independently of the permit. Therefore, NMFS disapproved that measure, and the Council revised and resubmitted the action addressing transferability of black sea bass pot endorsements in an amendment (the Resubmittal). All reasonable alternatives for the transferability action were correctly characterized in the supporting analysis in Amendment 18A pursuant to the National Environmental Policy Act, including biological, economic, social, administrative, and cumulative impacts of the action, and that analysis was incorporated by reference in the Resubmittal. The only possible impact not discussed was any economic impact that could result from assigning landings history to the endorsement or to the permit. However, the only condition under which the assignment of landings history would make a difference is if permit/endorsement holders and potential buyers of endorsements/permits expect the endorsement system to be converted to a catch share program. Amendment 18A did not consider a catch share program and it is too speculative to consider the economic effects of a catch share program at this time.
        This rule would allow transfer of a black sea bass pot endorsement to an individual or entity that holds or simultaneously obtains a valid South Atlantic snapper-grouper unlimited permit. In order to be transferred, a black sea bass pot endorsement must be valid or renewable. Black sea bass pot endorsements may be transferred independently from the South Atlantic snapper-grouper unlimited permit with which it is associated. Landings history would not be transferred with the endorsement. NMFS will attribute black sea bass landings to the associated South Atlantic snapper-grouper unlimited permit regardless of whether the landings occurred before or after the endorsement was issued. Black sea bass pot endorsements would not be renewed automatically with the South Atlantic snapper-grouper permit with which it is associated. The endorsement must be renewed separately from the permit on the Federal Permit Application for Vessels Fishing in the Exclusive Economic Zone (EEZ).
        Other Changes to Codified Text
        This rule also proposes to revise codified text in § 622.40, regarding issuance of the identification tags for black sea bass pots. In the final rule for Amendment 18A (77 FR 32408, June 1, 2012), the regulations incorrectly stated that NMFS would issue the identification tags for black sea bass pots and new identification tags would be issued each year. Endorsement holders order identification tags through NMFS, however, a supplier actually issues the identification tags. Endorsement holders must apply for new tags each permit year at the same time they renew their permit and endorsement. The regulations would be revised to clarify these points.
        This rule would also remove and reserve paragraph (a)(2) in § 622.43, because this paragraph was inadvertently not removed in the final rule implementing the Comprehensive Ecosystem-Based Amendment 2 for the South Atlantic (76 FR 82183, December 30, 2011). That rule established an annual catch limit of zero for South Atlantic octocorals, thereby, eliminating the quota from the regulations and the need for quota closure provisions. The quota closure provisions, however, were inadvertently not removed in that final rule; therefore, this rule removes the obsolete quota closure provisions.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, the Resubmitted Amendment 18A Action Amendment, 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.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:
        The purpose of this proposed rule is to allow black sea bass pot endorsements, created through Amendment 18A, to be transferred among South Atlantic snapper-grouper unlimited permit holders. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
        NMFS expects this rule, if implemented, to directly affect commercial vessels that landed black sea bass because snapper-grouper permit holders that have fished for black sea bass in the past are the most likely candidates to have an endorsement transferred to them. During 2005-2010, an annual average of 247 vessels with valid South Atlantic commercial snapper-grouper unlimited permits landed black sea bass, generating dockside revenues of approximately $1.103 million (2010 dollars). Each vessel, therefore, generated an average of approximately $4,465 in gross revenues from black sea bass. Vessels that operate in the black sea bass segment of the snapper-grouper fishery may also operate in other segments of the snapper-grouper fishery, the revenues of which are not reflected in these totals.
        No other small entities that would be expected to be directly affected by this proposed rule have been identified.
        The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. Based on the average revenue estimates provided above, all commercial vessels expected to be directly affected by this proposed rule are determined, for the purpose of this analysis, to be small business entities.
        The proposed action is expected to increase individual profitability of those owning the endorsement because of the increased value of an endorsement once it becomes transferable. Also, industry profitability is expected to increase as more efficient operators enter the black sea bass commercial harvesting sector. Thirty-two endorsements have been issued as of September 10, 2012. Although more could be issued after the appeals process finalizes, there will be a limited number of endorsements. Thus, the overall profit increase would not be significant relative to the size of the black sea bass commercial sector and the entire commercial sector of the snapper-grouper fishery.
        Because this proposed rule, if implemented, would not be expected to have a significant economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

          List of Subjects in 50 CFR Part 622
          Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

          Dated: September 5, 2012.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

          PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
          1. The authority citation for part 622 continues to read as follows:

            Authority:
             16 U.S.C. 1801 et seq.

          2. In § 622.4, the introductory paragraph in paragraph (a)(2)(xv) is revised, paragraph (a)(2)(xv)(D) is added, and the first sentence in paragraph (g)(1) is revised to read as follows:

            § 622.4
            Permits and fees.
            (a) * * *
            (2) * * *
            (xv) South Atlantic black sea bass pot endorsement. For a person aboard a vessel, for which a commercial vessel permit for South Atlantic snapper-grouper unlimited has been issued, to use a black sea bass pot in the South Atlantic EEZ, a South Atlantic black sea bass pot endorsement must have been issued to the vessel and it must be valid and on board the vessel, and the commercial vessel permit for South Atlantic snapper-grouper unlimited must be valid and on board the vessel. A permit or endorsement that has expired is not valid. This endorsement must be renewed annually and may only be renewed if the associated vessel has a valid commercial vessel permit for South Atlantic snapper-grouper unlimited or if the endorsement and associated permit are being concurrently renewed. The RA will not reissue this endorsement if the endorsement is revoked or if the RA does not receive a complete application for renewal of the endorsement within 1 year after the endorsement's expiration date.

            (D) Transferability. A valid or renewable black sea bass pot endorsement may be transferred between any two entities that hold, or simultaneously obtain a valid South Atlantic snapper-grouper unlimited permit. Endorsements may be transferred independently from the South Atlantic snapper-grouper unlimited permit. NMFS will attribute black sea bass landings to the associated South Atlantic snapper-grouper unlimited permit regardless of whether the landings occurred before or after the endorsement was issued. Only legal landings reported in compliance with applicable state and Federal regulations are acceptable.

            (g) * * *
            (1) * * * A vessel permit, license, or endorsement or a dealer permit or endorsement issued under this section is not transferable or assignable, except as provided in paragraph (m) of this section for a commercial vessel permit for Gulf reef fish, in paragraph (o) of this section for a king mackerel gillnet permit, in paragraph (q) of this section for a commercial vessel permit for king mackerel, in paragraph (r) of this section for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish, in paragraph (s) of this section for a commercial vessel moratorium permit for Gulf shrimp, in § 622.17(c) for a commercial vessel permit for golden crab, in § 622.18(b) for a commercial vessel permit for South Atlantic snapper-grouper, in § 622.19(b) for a commercial vessel permit for South Atlantic rock shrimp, in § 622.4(a)(2)(xiv)(D) for an eastern Gulf reef fish bottom longline endorsement, and in § 622.4(a)(2)(xv)(D) for a South Atlantic black sea bass pot endorsement. * * *

            3. In § 622.40, paragraph (d)(1)(i)(D) is revised to read as follows:

            § 622.40
            Limitations on traps and pots.

            (d) * * *
            (1) * * *
            (i) * * *
            (D) A vessel that has on board a valid Federal commercial permit for South Atlantic snapper-grouper and a South Atlantic black sea bass pot endorsement that fishes in the South Atlantic EEZ on a trip with black sea bass pots, may possess only 35 black sea bass pots per vessel per permit year. Each black sea bass pot in the water or onboard a vessel in the South Atlantic EEZ, must have a valid identification tag attached. Endorsement holders must apply for new tags each permit year through NMFS to replace the tags from the previous year.

            § 622.43
            [Amended]
            4. In § 622.43, paragraph (a)(2) is removed and reserved.

      [FR Doc. 2012-22221 Filed 9-7-12; 8:45 am]
      BILLING CODE 3510-22-P