        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R08-OAR-2014-0241; FRL-9909-49-Region 8]
        Partial Approval and Partial Disapproval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to South Dakota Administrative Code; Permit: New and Modified Sources

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) is proposing to partially approve and partially disapprove State Implementation Plan (SIP) revisions submitted by the State of South Dakota on June 14, 2010, June 20, 2011, and July 29, 2013. All three SIP revisions revise the Administrative Rules of South Dakota (ARSD) that pertain to the issuance of South Dakota air quality permits; in addition the June 14, 2010 submittal revises certain definitions and dates of incorporation by reference. The June 14, 2010 revisions contain new, amended and renumbered rules; the June 20, 2011 revisions contain new rules, and the July 29, 2013 revisions contain amended rules. In this proposed rulemaking, we are taking action on the entire June 14, 2010 submittal, except for those portions of the submittal which do not belong in the SIP. We are also taking action on portions of the June 20, 2011 submittal that were not acted on in other rulemaking regarding greenhouse gases and the State's Prevention of Significant Deterioration (PSD) program. We are taking action on portions of the July 29, 2013 submittal that supersede portions of the two previous submittals; the remainder of the July 29, 2013 submittal will be acted on at a later date. This action is being taken under section 110 of the Clean Air Act (CAA).

          DATES:
          Comments must be received on or before May 16, 2014.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2014-0241, by one of the following methods:
          • www.regulations.gov. Follow the on-line instructions for submitting comments.
          • Email: leone.kevin@epa.gov

          • Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
          • Mail: Carl Daly, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
          • Hand Delivery: Carl Daly, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal holidays. Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2014-0241. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at 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 www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA, without going through www.regulations.gov, your email 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. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to section I. General Information of the SUPPLEMENTARY INFORMATION section of this document.

            Docket: All documents in the docket are listed in the 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 hard copy. Publicly-available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Kevin Leone, Air Program, Mailcode 8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, or leone.kevin@epa.gov.

        SUPPLEMENTARY INFORMATION:

        Table of Contents

          I. General Information
          II. Background
          III. What action is EPA taking?
          IV. What authorities apply to EPA's proposed action?
          V. Summary
          VI. Statutory and Executive Orders Review

        Definitions
        For the purpose of this document, we are giving meaning to certain words or initials as follows:
        (i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
        (ii) The initials ARSD mean or refer to the Administrative Rules of South Dakota.
        (iii) The words EPA, we,
          us or our mean or refer to the United States Environmental Protection Agency.
        (iv) The initials NAAQS mean or refer to National Ambient Air Quality Standard.
        (v) The initials NESHAP mean or refer to National Emission Standards for Hazardous Air Pollutant.
        (vi) The initials NSPS mean or refer to New Source Performance Standard.
        (vii) The initials NSR mean or refer to New Source Review.
        (viii) The initials PSD mean or refer to prevention of significant deterioration.
        (ix) The initials SIP mean or refer to State Implementation Plan.
        (x) The words State or South Dakota mean the State of South Dakota, unless the context indicates otherwise.
         I. General Information
        A. What should I consider as I prepare my comments for EPA?
        1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
        2. Tips for Preparing Your Comments. When submitting comments, remember to:

        a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
        d. Describe any assumptions and provide any technical information and/or data that you used.
        e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        f. Provide specific examples to illustrate your concerns, and suggest alternatives.
        g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
        h. Make sure to submit your comments by the comment period deadline identified.
        II. Background
        South Dakota's June 14, 2010, submittal consists of four groups of rule changes: (1) Revisions to the definitions associated with the Air Pollution Control Program to ensure the definitions are current and consistent with other chapters in the regulations. These revisions include: grammatical changes, renumbering, modified definitions, new definitions and deleted definitions; (2) Revisions to the date of federal regulations referenced throughout ARSD Article 74:36; (3) Addition of a construction permit program for new minor sources and minor modifications to existing sources, created by adding new Chapter 74:36:20 (Construction Permits for New Sources or Modifications); and (4) Revisions to the minor source operating permit programs to incorporate the changes associated with the new proposed construction permit program.1

            1 Under a proposed consent decree, by May 30, 2014, EPA is required to sign a notice of final action to approve, disapprove, approve in part and disapprove in part, or conditionally approve this June 14, 2010 SIP submittal. WildEarth Guardians v. EPA, Civil Action No. 1:12-cv-03307 (D. Colo.).

        In South Dakota's current regulations in ARSD Article 74:36, the minor source construction permit and operating permit programs are combined so, in practice, a source receives one permit from the State which serves as both a construction and operating permit.2
           The revisions in the June 14, 2010 submittal separate the two programs into a new minor source construction permit program and a minor source operating permit program. Under the new revisions, a source would first apply for a construction permit before applying for an operating permit. A cross-walk table, which discusses the rule revisions in Article 74:36 individually, and the action we are proposing, is included in the docket for this rulemaking.

            2 For major sources and major modifications, the State already has two SIP-approved construction permit programs (PSD and nonattainment NSR) and, separately for major sources, a title V operating permit program that has been approved through the title V (not the SIP) process.

        South Dakota's June 14, 2010, submittal also contains rule revisions that are generally not included in SIPs. These rules, which we are not taking action on here (i.e. New Source Performance Standards (NSPS), operating permits for part 70 sources, etc.), are outlined in the cross-walk table located in the docket for this rulemaking.
        South Dakota's June 20, 2011, submittal includes the following rule revisions: (1) Revises Sections 74:36:01:01, 74:36:01:08, 74:36:01:15 and 74:36:09:02 to comply with EPA's Greenhouse Gas Tailoring Rule. Revisions to Sections 74:36:01:08, 74:36:01:15 and 74:36:09:02 have been proposed; 3

           EPA is proposing action on 74:36:01:01 in this rulemaking; (2) Revises Chapter 74:36:20 by revising Section 74:36:20:02 (Construction Permits Required); and (3) Adds new Section 74:36:20:02.01 (Initiating Construction Prior to Permit Issuance). Section 74:36:20:02.01 allows sources who meet certain conditions to start construction prior to receiving a permit provided they meet the requirements in that section. EPA is proposing action on 74:36:20:02 and 74:36:20:02.01 in this rulemaking.4

            3 On February 11, 2014 (79 FR 8130) EPA proposed action on these provisions. EPA signed a final action on March 24, 2014.

            4 Under a proposed consent decree, by May 30, 2014, EPA is required to sign a notice of final action to approve, disapprove, approve in part and disapprove in part, or conditionally approve this June 20, 2011 SIP submittal. WildEarth Guardians v. EPA, Civil Action No. 1:12-cv-03307 (D. Colo.).

        With respect to South Dakota's July 29, 2013 submittal, we are only proposing action on the following revisions: (1) Section 74:36:04:03.01 (Minor Source Operating Permit Variance); and (2) 74:36:10 (New Source Review).
        III. What action is EPA taking?
        EPA is proposing to approve all revisions as submitted by South Dakota on June 14, 2010, except we are not acting on those portions of the submittal which do not belong in the SIP. EPA is proposing to partially approve and partially disapprove the revisions submitted on June 20, 2011. We are also proposing to approve portions of South Dakota's July 29, 2013, submittal as outlined in Section II of this rulemaking.
        June 14, 2010 SIP Submittal
        74:36:01:01 (Definitions)
        We are proposing to approve all changes in this section as outlined in the crosswalk table (see docket).
        74:36:01:02 (Ambient Air Quality)
        We are proposing to approve changes in this section, which updates the federal reference.
        74:36:01:03 (Air Quality Episodes)
        We are proposing to approve changes in this section, which updates the federal reference.
        74:36:04 (Operating Permits for Minor Sources)
        We are proposing to approve all changes in this section. The modifications in this section were made to revise the minor source operating permit program to incorporate the changes associated with the new proposed construction permit program. As outlined in the crosswalk table, these changes include: (1) Grammatical changes which do not significantly change the meaning of the rule; (2) Updates to the federal references; and (3) re-organization of the rules. A few specific issues of note are discussed below:
        74:36:04:03 (Emission Unit Exemptions)

        In 74:36:04:03(6), South Dakota added an emission unit exemption for “routine housekeeping or plant upkeep activities such as painting buildings, retarring roofs or paving parking lots.” EPA asked South Dakota to clarify that they consider these activities to be de minimis in nature. South Dakota sent a letter to EPA dated March 18, 2014, clarifying that they consider these activities to be de minimis in nature (see docket). As explained in the letter, before South Dakota adopted the requirements for an air quality construction permit program, the construction and operating permit programs were combined for those facilities not required to obtain a PSD preconstruction permit. When South Dakota decided to separate the two programs, the insignificant activity list was incorporated into both programs. Routine housekeeping and plant upkeep had not originally been listed in the combined construction and operating permit program for minor sources because these activities were considered fugitive sources which are not regulated under the minor source program. We interpret the State's listing of these activities as insignificant to characterize these emissions as de minimis with respect to attainment or maintenance of the National Ambient Air Quality Standards (NAAQS) and thus appropriate for permitting exemptions. Thus, when the State decided to separate the construction and operating permit program, it was decided to include exemptions for routine housekeeping and plant upkeep in the minor operating permit program as well as for the new construction permit program. In particular the example activities of painting buildings, retarring roofs, or paving parking lots appear to be de minimis. Based on the State's letter, EPA proposes to approve this exemption.
        74:36:04:03.01 (Minor Source Operating Permit Variance)
        This rule was superseded by the subsequent July 29, 2013, submittal and we are proposing action on the rule elsewhere in this notice.
        74:36:04:32 (General Permits)
        In 74:36:04:32, EPA asked the State to clarify how they can ensure that the issuance of a general permit does not interfere with the NAAQS or any other requirements of the CAA. South Dakota sent a letter to EPA clarifying how their regulations ensure that construction of a source which applied for a general permit will not interfere with the NAAQS or any other requirement of the CAA (see docket). When issuing a general permit, the State applies the standard in 74:36:04:04 to determine that the permit will not interfere with the NAAQS. The permits are issued for a five-year period. Before renewing a general permit, the State considers whether renewal will interfere with the NAAQS or other applicable requirements. Based on this clarification, EPA proposes to approve South Dakota's general permit provisions. In particular, EPA notes that the limited lifespan of a general permit helps to protect the NAAQS from unanticipated growth in a source category.
        74:36:05 (Operating Permits for Part 70 Sources)
        We are not taking action on this section because part 70 provisions are not a required component under section 110 of the CAA. Instead, we approve operating permit regulations under our operating permit regulations at 40 CFR part 70.
        74:36:07 (New Source Performance Standards)
        We are not taking action on this section because NSPS are not a required component under section 110 of the CAA.
        74:36:08 (National Emission Standards for Hazardous Air Pollutants)
        We are not taking action on this section because National Emission Standards for Hazardous Air Pollutants (NESHAPs) are not a required component under section 110 of the CAA.
        74:36:09 (Prevention of Significant Deterioration)
        The proposed changes were acted on in 76 FR 43912 (July 22, 2011).
        74:36:10 (New Source Review)
        The proposed changes are superseded by the July 29, 2013 submittal. We are acting on the proposed changes to 74:36:10 as submitted on July 29, 2013.
        74:36:11 (Performance Testing)
        We are proposing to approve changes in this section, which updates the federal reference.
        74:36:12 (Control of Visible Emissions)
        We are proposing to approve changes in this section, which updates the federal reference.
        74:36:13 (Continuous Emissions Monitoring)
        We are proposing to approve changes in this section, which updates the federal reference.
        74:36:16 (Acid Rain Program)

        We are not taking action on this section because the Acid Rain Program is not a required component under section 110 of the CAA.
        74:36:18 (Regulations for State Facilities in the Rapid City Area)
        We are proposing to approve changes in this section, which updates the visible emission test method to EPA Method 9 in 40 CFR part 60, Appendix A (July 1, 2009).
        74:36:19 (Mercury Budget Trading Program)
        We are not taking action on this section because it is not a required SIP component under section 110 of the CAA.
        74:36:20 (Construction Permits for New Sources or Modifications)
        We are proposing to approve this new section because it meets the requirements of the CAA and 40 CFR 51.160 and 161. In particular:
        (1) 74:36:20:02 (Construction Permit Required) requires a construction permit before a source can construct, install, modify or operate a source or unit. Note that, as discussed separately below, this requirement was modified in the June 20, 2011 SIP submittal.
        (2) 74:36:20:05 (Standard for issuance of construction permit) states that a construction permit will be issued only if it has been shown that the operation of the new source or modification to an existing source will not prevent or interfere with the attainment or maintenance of an applicable NAAQS.
        (3) 74:36:20:06 (Timely and complete application for a construction permit required) allows the State or local agency to determine whether or not the construction or modification of a facility will interfere with the NAAQS or control strategy.
        (4) 74:36:20:10 (Time period for department's recommendation) allows the State or local agency to prevent the construction or modification of a facility if it will interfere with the NAAQS or control strategy.
        (5) 74:36:20:11 (Public participation in permitting process) allows for a 30-day period for submittal of public comment.
        June 20, 2011 SIP Submittal
        74:36:01:01(73) (Subject to Regulation)
        We are proposing to approve the definition of “Subject to Regulation” to comply with EPA's Greenhouse Gas Tailoring Rule revisions published on June 3, 2010.
        In our February 11, 2014 action (79 FR 8130), EPA proposed approval of revisions to the State's PSD program to incorporate the provisions of the federal PSD and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule). The SIP revisions incorporate by reference the federal Tailoring Rule's emission thresholds for determining which new stationary sources and modifications to existing stationary sources become subject to South Dakota's PSD permitting requirements for their greenhouse gas emissions.
        Outside of the PSD program, the June 20, 2011 SIP submittal proposed in Section 74:36:01:01, Definitions, to add “(73) “Subject to regulation” as defined in 40 CFR 70.2 (July 1, 2009), as revised in publication 75 FR 31607 (June 3, 2010), in accordance with EPA requirements.” We did not propose action on that part of the submittal as part of our February 11, 2014 proposal because it applies to the title V operating permit program, which is not part of the SIP. However, in reviewing the June 20, 2011 submittal for this proposed action, we realized that South Dakota intended for the definition of “subject to regulation” to be applied throughout its rules. In fact, the language “subject to regulation” is included in the updated definition of major sources that we proposed to approve in our February 11, 2014 action, so for consistency we propose to approve the definition at this time.
        74:36:04:20:01 (Initiating Construction Prior to Permit Issuance)

          Does the new rule that allows for Initiating Construction Prior to Permit Issuance meet the CAA and regulatory requirements?

        The new South Dakota rule 74:36:20:02.01 “Initiating Construction Prior to Permit Issuance” allows certain projects to begin construction prior to receiving approval from the State, and contains some safeguards. Under new rule 74:36:20:02.01 an owner or operator may initiate construction without receiving a permit from the State as long as they have submitted a construction permit application and notified the Department of “its intentions to initiate construction prior to issuance of the construction permit five working days before initiating construction.” 74:36:20:2.01 (1)-(2). Only “true minor” sources and modifications can construct prior to receiving a permit. 74:36:20:2.01 (3)-(4). The source is not allowed to operate equipment “in any way that may emit any air pollutant prior to receiving a construction permit.” 74:36:20:2.01(5). The rule provides that the owner or operator must assume liability for construction conducted before the permit is issued, and must cease construction if the department demonstrates that construction of the new source or modification will interfere with the attainment or maintenance of a NAAQS or increment. 74:36:20:2.01 (5)-(6). Finally, the owner or operator is required to make any change to the source that may be imposed in the issued construction permit. 74:36:20:2.01(7).
        We are proposing to disapprove this section in its entirety because it allows complete construction of a true minor source before any type of State review, which is inconsistent with the requirements in 40 CFR 51.160(a) and (b) and Section 110(a)(2)(C) of the Act; because it would also create “equity in the ground” issues that might compromise compliance with 40 CFR 51.160(a) and (b); and because it is inconsistent with the public comment requirements in 40 CFR 51.161.
        Summary of the Federal Clean Air Act and Regulatory Requirements
        Section 110(a)(2)(C) of the Act contains the requirements for preconstruction review programs for minor sources and requires that each SIP include a program to regulate the construction and modification of stationary sources as necessary to assure that the NAAQS are achieved.
        EPA's minor source implementing regulations are in 40 CFR 51.160-51.164. The regulations require that a SIP include “legally enforceable procedures that enable” the permitting agency to determine whether construction “will result in” interference with the NAAQS, 40 CFR 51.160(a). The SIP must also include the means by which a state or local agency can “prevent” construction that “will interfere with the attainment or maintenance of a national standard.” 40 CFR 51.160(b). 40 CFR 51.161(a) requires that the legally enforceable procedures in 40 CFR 51.160 must also require the state or local agency to provide opportunity for public comment on information submitted by owners or operators. The public information must include the agency's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval. 40 CFR 51.161(b) requires a minimum 30-day public comment period.
        What Is EPA's evaluation?

        We propose to find that the State's new rule that allows construction of certain projects subject to the minor source program prior to permit issuance is inconsistent with the requirements of the CAA and implementing regulations. EPA expressed concern about the State's proposed approach in our comments on South Dakota's proposed rule in January 2011 because as proposed the rules were inconsistent with 40 CFR 51.160(b), explaining that 5
          :

              5 The State also received public comments from 13 individuals on this issue and related concerns. State of South Dakota SIP Submittal, these comments appear in the SIP starting at PDF page 80. (June 14, 2011, part 2 of 2).

          “EPA has concerns that chapter 74:36:20:02.01 does not require some type of administrative approval from the State prior to allowing pre-permit construction activities. EPA has approved minor NSR programs in several states that do not require permits prior to construction, but instead require sources to submit a notice and receive authorization for sources to begin construction after a specified time if the permitting authority does not issue an order preventing construction. Chapter 74:36:20:02.01 only requires the owner or operator to submit a construction permit application; the rule references a department evaluation, but does not require written approval from the State prior to construction ensuring that sources that are subject to federal requirements do not commence construction prior to permit issuance. This is not consistent with 40 CFR 51.160(b), which requires states to have legally enforceable procedures to prevent construction or modification of a source, if it would violate any SIP control strategies or interfere with attainment or maintenance of the NAAQS.”

        The final rule as adopted by the State was not revised to address these concerns and allows complete construction of a true minor source before any type of State review. The rule does not require the permitting authority to take affirmative action and approve construction before construction permit approval. Therefore, neither the State, public, nor EPA can determine whether the project will be in compliance with the CAA and implementing regulations before construction.
        In addition to being inconsistent with the requirements of 40 CFR 51.160(a), the rule is inconsistent with Section 110(a)(2)(C) of the Act because the rule lacks provisions to protect the NAAQS and prohibit any source from emitting air pollutants which will interfere with the NAAQS. Notwithstanding the fact that the owner or operator is required to provide a five day notice to the State before commencing construction, there is no procedure in the State's rule to determine prior to construction, if the construction or modification will violate a control strategy or interfere with attainment and maintenance of the NAAQS, which is required under 40 CFR 51.160(a).
        The State rule also does not satisfy the public participation requirements in 40 CFR 51.161, which require a minimum 30-day period for public comment on the information submitted by the owner or operator prior to construction, as well as an opportunity for the public to review the State's analysis and recommendations regarding construction approval or disapproval.
        74:36:20:02.01 also allows for complete construction of a true minor source, which would create equity in the ground issues. Allowing for complete construction could compromise compliance with 40 CFR 51.160(a) and (b) because, although 74:36:20:02.01 requires that the owner or operator must assume any liability for construction conducted on a source before a permit is issued, the economic impact of denying a permit after complete construction of a source could influence the decision to approve or deny a permit. Additionally, once fully constructed, there may be fundamental design issues that cannot be overcome should the State seek required modifications from the owner or operator.
        EPA's review of other states, which have EPA approved pre-permit construction regulations found that most of the other state SIPs require some type of permitting agency review and preauthorization/administrative approval prior to construction.
        We understand South Dakota's goals in promulgating rule 74:36:20:02.01, as expressed during the State's rulemaking, were to “expedite the construction of specific facilities that will have minimal impact to the ambient air and for those projects that may be impacted by inclement weather (i.e. winter months),” 6
           “and to ensure that new businesses and existing businesses looking to expand are permitted in an expedited manner.” 7
           If requested by South Dakota, EPA will work with the State to develop revised rules that are consistent with the State goals and also consistent with the CAA and implementing regulations.8
           We acknowledge that EPA may have approved some state minor source programs with approaches/requirements similar to those proposed by South Dakota, which may warrant EPA evaluation in the future.

            6 State of South Dakota SIP Submittal, at PDF pages 170-171 (June 14, 2011, part 1 of 2).

            7 State of South Dakota SIP Submittal, at PDF page 105 (June 14, 2011, part 2 of 2) (Board of Minerals and Environment Minutes, February 17, 2011).

            8 One option for South Dakota, which is consistent with its stated goals, is to amend its pre-permit construction regulations to allow certain limited, seasonal, pre-permit construction activities and specify which activities are allowed, and exclude construction of any emitting unit. An example of this type of pre-permit construction language can be found in the Administrative Rules of Montana (ARM) 17.8.743(2), which EPA approved on August 8, 2011 (76 FR 40237).

        In conclusion, although 74:36:20:02.01 has some safeguards as noted above, it is not in compliance with Section 110(a)(2)(C) of the Act, 40 CFR 51.160(a) and (b), and 40 CFR 51.161. Therefore, for the reasons outlined above, we are proposing to disapprove 74:36:20:02.01.
        74:36:04:20:02 (Construction Permit Required)
        Because EPA is disapproving 74:36:20:02.01, we are also disapproving the phrase: “unless it meets the requirements in 74:36:20:02.01” in 74:36:04:20:02.
        July 29, 2013 SIP Submittal
        74:36:04:03.01 (Minor Source Operating Permit Variance)
        We are proposing to approve the deletion of this section.
        74:36:10 (New Source Review)
        We are proposing to approve changes in this section, which updates the federal references and deletes obsolete provisions regarding clean units and pollution control projects. We note that the State clarified that it is not adopting any provisions in 40 CFR 51.165 that were marked as stayed as of the date of incorporation by reference. We also note that, as mentioned in the State's letter, that there are currently not any nonattainment areas designated in South Dakota. If in the future any are designated for a particular pollutant, the State will then be obliged to review and if necessary revise its nonattainment NSR program to meet all applicable requirements for that pollutant, including proper treatment of relevant precursors.
        IV. What authorities apply to EPA's proposed action?
        In determining whether SIP revisions submitted by the State of South Dakota on June 14, 2010, June 20, 2011 and July 29, 2013, are approvable or not approvable, EPA applied the following authorities:
        The CAA at Section 110(a)(2)(C) requires states to include a minor NSR program or alternative measures in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the NAAQS are achieved. In particular, section 110(a)(2)(C) was applied to determine approvability of all three submittals we are proposing action on in this rulemaking.

        EPA's implementing regulations at 40 CFR 51.160-164 are intended to ensure that new source growth is consistent with maintenance of the NAAQS. The authorities in EPA's implementing regulations which we are applying in this rulemaking are: (1) 40 CFR 51.160(a), which requires that the SIP include legally enforceable procedures that enable a state or local agency to determine whether construction or modification of a facility, building, structure or installation, or combination of these will result in a violation of applicable portions of the control strategy or interference with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring state; (2) 40 CFR 51.160(b) requires these procedures must include a means by which the state or local agency can prevent a construction or modification if the construction or modification will result in a violation of applicable portions of the control strategy or interference with attainment or maintenance of a national standard. 40 CFR 51.162-164 are not applicable to the SIP revisions we are proposing action on in this rulemaking. We applied 40 CFR 51.160(a), 40 CFR 51.160(b) and 40 CFR 51.161 to determine the approvability of 74:36:04:20:02.
        Section 110(i) of the CAA specifically precludes states from changing the requirements of the SIP except through SIP revisions approved by EPA. SIP revisions will be approved by EPA only if they meet all requirements of section 110 of the CAA and the implementing regulations at 40 CFR part 51. See CAA section 110(l); and 40 CFR 51.104.
        V. Summary
        In this proposed rulemaking, we are proposing partial approval and partial disapproval of the new and revised rules and renumbering of rules as outlined in section III above and in the crosswalk table located in the docket. In particular, we are proposing the following actions:
        June 14, 2010 Submittal
        We are proposing to approve the following: 74:36:01:01 (Definitions); 74:36:01:02 (Ambient Air Quality);
          74:36:01:03 (Air Quality Episodes); 74:36:04 (Operating Permits for Minor Sources);
          74:36:11 (Performance Testing); 74:36:12 (Control of Visible Emissions);
          74:36:13 (Continuous Emissions Monitoring); 74:36:18 (Regulations for State Facilities in the Rapid City Area);
          and 74:36:20 (Construction Permits for New Sources or Modifications).

        We are not taking action on the following: 74:36:05 (Operating Permits for Part 70 Sources); 74:36:07 (New Source Performance Standards);
          74:36:08 (National Emission Standards for Hazardous Air Pollutants); 74:36:09 (Prevention of Significant Deterioration);
          74:36:16 (Acid Rain Program); and 74:36:19 (Mercury Budget Trading Program).

        June 20, 2011 Submittal
        We are proposing to approve the following: 74:36:01:01(73) (Subject to Regulation).

        We are proposing to disapprove the following: 74:36:04:20:01 (Initiating Construction Prior to Permit Issuance), the phrase: “unless it meets the requirements in 74:36:20:02.01” in 74:36:04:20:02 (Construction Permit Required).

        July 29, 2013 Submittal
        We are proposing to approve deletion of the following: 74:36:04:03.01 (Minor Source Operating Permit Variance).

        We are proposing to approve the following: 74:36:10 (New Source Review).

        We are proposing partial approval and partial disapproval based on the authorities as outlined in section IV of this rulemaking. As explained in this rulemaking, the South Dakota rules we are proposing to approve meet the statutory requirements of CAA section 110(a)(2)(C), the regulatory requirements of 40 CFR 51.160 and 40 CFR 51.161. We are proposing to disapprove the revisions which do not meet the statutory requirements of CAA section 110(a)(2)(C) and the regulatory requirements of 40 CFR 51.160 and 40 CFR 51.161. For additional information, see the cross-walk table and South Dakota's letter of clarification located in the docket.
        VI. Statutory and Executive Orders Review
        Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
        • is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

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

        • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
        • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

          Authority:
           42 U.S.C. 7401 et seq.

          Dated: April 3, 2014.
          Shaun L. McGrath,
          Regional Administrator, Region 8.

      [FR Doc. 2014-08500 Filed 4-15-14; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 0907271170-0314-02]
        RIN 0648-AY10
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 17A

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule to implement Amendment 17A to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). This proposed rule would establish an annual catch limit (ACL) for red snapper of zero, which means all harvest and possession of red snapper in or from the South Atlantic EEZ would be prohibited, and for a vessel with a Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper, harvest and possession of red snapper would be prohibited in or from state or Federal waters. To constrain red snapper harvest to the ACL, this rule would implement an area closure for South Atlantic snapper-grouper that extends from southern Georgia to northern Florida where all harvest and possession of snapper-grouper would be prohibited (except when fishing with black sea bass pots or spearfishing gear for species other than red snapper), and require the use of non-stainless steel circle hooks north of 28° N. lat. Additionally, Amendment 17A would establish a rebuilding plan for red snapper, require a monitoring program as the accountability measure (AM) for red snapper, and specify a proxy for the fishing mortality rate that will produce the maximum sustainable yield (MSY) and specify optimum yield (OY). The intended effects of this rule are to end overfishing of South Atlantic red snapper and rebuild the stock.

          DATES:
          Comments must be received no later than 5 p.m., eastern time, on September 27, 2010.

          ADDRESSES:
          You may submit comments, identified by “0648-AY10”, by any one of the following methods:

          Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal http://www.regulations.gov

          Fax: 727-824-5308, Attn: Kate Michie
          Mail: Kate Michie, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701

          Instructions: No comments will be posted for public viewing until after the comment period is over. 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-2010-0035” in the keyword search, then check the box labeled “Select to find documents accepting comments or submissions”, then select “Send a Comment or Submission.” NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
          Copies of Amendment 17A may be obtained from the South Atlantic Fishery Management Council, 4055 Faber Place, Suite 201, North Charleston, SC 29405; phone: 843-571-4366 or 866-SAFMC-10 (toll free); fax: 843-769-4520; e-mail: safmc@safmc.net. Amendment 17A includes an Environmental Assessment, an Initial Regulatory Flexibility Analysis (IRFA), a Regulatory Impact Review, and a Social Impact Assessment/Fishery Impact Statement.

          FOR FURTHER INFORMATION CONTACT:

          Kate Michie, telephone: 727-824-5305; fax: 727-824-5308; e-mail: Kate.Michie@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The South Atlantic snapper-grouper fishery is managed under the FMP. The FMP was prepared by the Council and implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
        Background

        On July 8, 2008, the Council was notified that South Atlantic red snapper is undergoing overfishing and is overfished. This determination was based upon a review of the 2008 assessment of this species by the Southeast Data, Assessment, and Review panel and the Council's Scientific and Statistical Committee. To immediately address overfishing of red snapper and at the Council's request, an interim rule prohibiting all harvest and possession of red snapper in Federal waters, and in state waters for vessels holding Federal snapper-grouper permits, was published in the Federal Register (74 FR 63673, December 4, 2009). The extension of this interim rule (74 FR 27658, May 8, 2010) will expire December 5, 2010. Amendment 17A and this proposed rule would establish long-term management measures to end overfishing of red snapper, including the prohibition on the harvest and possession of red snapper, as well as other management measures that will help rebuild the stock.
        Management Measures Contained in this Proposed Rule
        This proposed rule would prohibit the harvest and possession of red snapper in or from Federal waters, in the South Atlantic, and in or from adjacent state waters for vessels holding Federal snapper-grouper permits. However, because the red snapper stock is part of a multi-species fishery, i.e., red snapper co-occur with vermilion snapper, tomtate, scup, red porgy, white grunt, black sea bass, red grouper, scamp, and other snapper-grouper species, there is significant bycatch of red snapper for fishermen targeting other snapper-grouper. This is a significant issue because release mortality rates for red snapper are estimated to be 40 percent for the recreational sector and 90 percent for the commercial sector (due to deeper waters fished by the commercial sector). Because bycatch mortality rates of red snapper are very high, and they are often caught while targeting co-occurring snapper-grouper species, a harvest prohibition of red snapper alone will not end overfishing. Therefore, this proposed rule also includes an area closure where harvest of all snapper-grouper species would be prohibited (except when fishing with black sea bass pots with valid identification tags or spearfishing gear for species other than red snapper). The proposed closed area encompasses locations from which the highest amount of landings of red snapper are reported, primarily off the coast of southern Georgia and the north and central east coast of Florida between the depths of 98 ft (30 m) and 240 ft (73 m).
        Within the proposed snapper-grouper closed area, fishing for species other than red snapper using black sea bass pots that have a valid identification tag issued by the Regional Administrator (RA) attached and spearfishing gear would be permitted. Black sea bass pots would be permitted in the closed area because commercial logbook data show that red snapper are rarely taken as bycatch in these pots. Also, allowing the use of black sea pots within the closed area could help mitigate adverse socioeconomic effects caused by an area closure without impeding efforts to end overfishing of red snapper.
        The use of spearfishing gear would be permitted in the closed area when fishing for species other than red snapper because spearfishing gear is highly selective and would be the least likely of all fishing gears to result in red snapper bycatch. Allowing the use of spearfishing gear may also help to offset, to a small degree, some of the adverse socioeconomic impacts expected from a large area closure. In addition to the exemptions for black sea bass pots and spearfishing gear, this proposed rule also includes a provision to allow transit of vessels with snapper-grouper species on board other than red snapper through the proposed closed area with gear appropriately stowed.
        In addition to the area closure, this proposed rule would require the use of non-stainless steel circle hooks when fishing for snapper-grouper species with hook-and-line gear and natural baits north of 28° N. lat. Some studies show that circle hooks may be beneficial in reducing bycatch mortality of fish species as compared to J hooks.
        Red Snapper Monitoring Program
        In addition to the measures contained in this proposed rule, Amendment 17A would require a red snapper monitoring program that would utilize, but not be limited to, fishery independent data collection methods. The monitoring program would be designed to monitor rebuilding progress of the stock, and data would be employed in red snapper assessments. Stock assessments would be used to determine if the stock is rebuilding, or if additional regulatory modifications are needed to end overfishing.
        Sampling could include deployment of chevron traps, cameras, and hook-and-line gear at randomly selected stations within the proposed closed area as well outside the closed area. The preferred independent monitoring program would continue the long-term data series from the Marine Resources Monitoring Assessment and Prediction (MARMAP) survey and would likely add a complementary sampling program to expand needed coverage. The improved sampling plan may increase the (1) spatial footprint to include areas from central Florida to Cape Hatteras, North Carolina, (2) sample size, and (3) number of gear types from current survey levels, thereby considerably improving program effectiveness. Aspects of the current sampling program (survey design, chevron traps, short bottom longline and rod and reel sampling) would remain the core of the improved program, enabling comparisons of data collected in the improved program with those collected during previous years by MARMAP. Additional gear could be added and utilized by both the Southeast Fisheries Science Center (SEFSC) and MARMAP, with gear effectiveness research performed by the SEFSC. SEFSC could coordinate with MARMAP to plan annual survey efforts (e.g., spatiotemporal focus of sampling) as guided by the Council and NMFS data needs. The improved monitoring program would inform fishery management decisions and would likely contribute to improved management of the stock.
        Rebuilding Plan
        The Magnuson-Stevens Act requires that a rebuilding plan be specified for any federally-managed species determined to be overfished. Rebuilding plans consist of a rebuilding schedule and a rebuilding strategy. Amendment 17A would define a rebuilding schedule of 35 years for red snapper. The rebuilding time period would end in 2044, and would reduce, to the maximum extent practicable, adverse socioeconomic impacts while still achieving the rebuilding goal.

        Amendment 17A includes a rebuilding strategy equal to 98 percent of FMSY (98%F30%SPR) based a constant FREBUILD of 0.145, and the ACL would be zero. Under this rebuilding strategy, an initial 76 percent reduction in total mortality would be required, and the OY value would be 2,425,000 lb (1,083,632 kg) whole weight with a 53 percent probability of rebuilding by 2044. The AM for red snapper would include monitoring the catch per unit effort using both fishery-independent and fishery-dependent data gathering methods to track changes in biomass.

        Maximum Sustainable Yield Proxy

        Amendment 17A would specify a proxy for the fishing mortality rate that will produce the maximum sustainable yield (FMSY). Initially, the Council determined FMSY proxy of F40%SPR should be used for red snapper because it is more conservative than the current FMSY proxy of F30%SPR, and would require a more significant harvest reduction to end overfishing. However, at their June 2010 meeting, the Council changed their preferred alternative from F40%SPR to F30%SPR. The Council recommended that the status quo FMSY proxy (F30%SPR) be maintained until the SEFSC is able to conduct a comprehensive review of how FMSY proxies should be applied across all southeastern fisheries. The Council also suggested that the decision to apply a specific FMSY proxy should be made comprehensively, considering all southeastern fisheries, rather than on a species-by-species basis. Therefore, the Council determined it would be advantageous to first determine what methodology would be most appropriate for assigning FMSY proxies to species/stocks in the southeast before proceeding with a change to the current FMSY proxy for red snapper.

        Additionally, the Council previously specified the Minimum Stock Size Threshold (MSST) as the biomass using the formula MSST = (1-M)*SSBMSY. This formula is recommended in the 1998 Technical Guidance Document developed by NMFS (NOAA Technical Memorandum NMFS-F/SPO-31) and represents 1 minus the natural mortality multiplied by the spawning stock biomass at MSY. The updated MSST value from the most recent red snapper stock assessment is 12,247,000 lb (5,555,146 kg), whole weight.
        Availability of Amendment 17A

        Additional background and rationale for the measures discussed above are contained in Amendment 17A. The availability of Amendment 17A was announced in the Federal Register on July 29, 2010, (75 FR 44753). Written comments on Amendment 17A must be received by September 27, 2010. All comments received on Amendment 17A or on this proposed rule during their respective comment periods will be addressed in the preamble to the final rule.
        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 Amendment 17A, 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.

        NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the Council (see ADDRESSES). A summary of the IRFA follows.
        The proposed rule, which consists of several actions, would introduce changes to the management of South Atlantic snapper-grouper fisheries. This rule would prohibit all commercial and recreational harvest and possession of red snapper year-round in the South Atlantic EEZ. Prohibition of red snapper applies in the South Atlantic on board a vessel for which a valid Federal charter vessel/headboat or commercial permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters. Furthermore, this rule would prohibit commercial and recreational harvest and possession of all snapper-grouper species year-round in an area that includes commercial logbook grids 2880, 2980, and 3080 between 98 ft (16 fathoms; 30 m) and 240 ft (40 fathoms; 73 m), except when fish (other than red snapper) are harvested with black sea bass pots that have a valid identification tag issued by the RA attached or fish (other than red snapper) are harvested with spearfishing gear. The prohibition on possession does not apply to a person aboard a vessel that is in transit with other snapper-grouper species on board and with fishing gear appropriately stowed. Finally, this proposed rule would require the use of non-stainless steel circle hooks when fishing for snapper-grouper with snapper-grouper hook-and-line gear and natural baits north of 28° N. lat.
        The Magnuson Stevens Act provides the statutory basis for the proposed rule.
        No duplicative, overlapping, or conflicting Federal rules have been identified. The proposed rule would not alter existing reporting, record keeping, or other compliance requirements, except when the vessel is in transit across the proposed closed area, during which, fishing gear must be appropriately stowed, or when the vessel is selected for the fishery independent monitoring program to track the progress of red snapper.
        This proposed rule is expected to directly affect commercial harvesting and for-hire fishing operations. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For for-hire vessels, the other qualifiers apply and the annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).
        From 2003-2007, an average of 944 vessels per year was permitted to operate in the commercial snapper-grouper fishery. Of these vessels, 749 held transferable permits and 195 held non-transferable permits. On average, 890 vessels landed 6.43 million lb (2.92 million kg) of snapper-grouper and 1.95 million lb (0.88 million kg) of other species on snapper-grouper trips. Total dockside revenues from snapper-grouper species stood at $13.81 million (2007 dollars) and from other species, at $2.30 million (2007 dollars). Considering revenues from both snapper-grouper and other species, the revenues per vessel were $18,101. An average of 27 vessels per year harvested more than 50,000 lb (22,680 kg) of snapper-grouper species per year, generating at least, at an average price of $2.15 (2007 dollars) per pound, dockside revenues of $107,500. Vessels that operate in the snapper-grouper fishery may also operate in other fisheries, the revenues of which cannot be determined with available data and are not reflected in these totals.

        Although a vessel that possesses a commercial snapper-grouper permit can harvest the various snapper-grouper species, not all permitted vessels landed all of the snapper-grouper species most affected by this amendment, i.e. red snapper, gag, vermilion snapper, black sea bass, black grouper, and red grouper. The following average number of vessels landed the subject species in 2003-2007: 292 vessels landed gag, 253 vessels landed vermilion snapper, 220 vessels landed red snapper, 237 vessels landed black sea bass, 323 vessels landed black grouper, and 402 vessels landed red grouper. Combining revenues from snapper-grouper and other species on the same trip, the average revenue (2007 dollars) per vessel for vessels landing the subject species were $20,551 for gag, $28,454 for vermilion snapper, $22,168 for red snapper, $19,034 for black sea bass, $7,186 for black grouper, and $17,164 for red grouper.
        Based on revenue information, all commercial vessels directly affected by the proposed rule are considered small entities.
        The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. For the period 2003-2007, an average of 1,635 vessels was permitted to operate in the snapper-grouper for-hire fishery, of which 82 are estimated to have operated as headboats. Within the total number of vessels, 227 also possessed a commercial snapper-grouper permit and are included in the summary information provided on the commercial sector. The charterboat annual average gross revenue is estimated to range from approximately $62,000-$84,000 for Florida vessels, $73,000-$89,000 for North Carolina vessels, $68,000-$83,000 for Georgia vessels, and $32,000-$39,000 for South Carolina vessels. For headboats, the corresponding estimates are $170,000-$362,000 for Florida vessels, and $149,000-$317,000 for vessels in the other states.
        Based on these average revenue figures, all for-hire operations directly affected by the proposed rule are considered small entities.
        Some fleet activity may exist in both the commercial and for-hire snapper-grouper sectors but its extent is unknown, and all vessels are treated as independent entities in this analysis.
        All entities that are expected to be directly affected by the proposed rule are considered small entities, so no disproportionate effects on small entities relative to large entities are expected.
        The proposed rule is expected to reduce short-run harvests and fishing opportunities of commercial and for-hire vessels that, in turn, would reduce their short-run revenues and profits. In the following discussion, net operating revenue is considered equivalent to profit.
        Prohibiting all commercial and recreational harvest and possession of red snapper year-round in the South Atlantic EEZ and prohibiting all commercial and recreational harvest and possession of species (except when caught with spearfishing gear or black sea bass pots that have a valid identification tag issued by the RA attached) in the snapper-grouper fishery year-round in the area that includes commercial logbook grids 2880, 2980, and 3080 between 98 ft (16 fathoms; 30 m) and 240 ft (40 fathoms; 73 m) is expected to reduce net operating revenues of commercial vessels operating in the South Atlantic by an average of approximately $430,000 (4.8 percent). This measure is also expected to reduce the net operating revenues of for-hire vessels operating in the South Atlantic by approximately $5.04 million. Most of the effects would be borne by commercial and for-hire vessels operating in northeast Florida and Georgia. Moreover, most of the effects would fall on commercial vessels using vertical lines and on headboats. However, it is highly probable that the effects on headboats are overestimated due to overestimation of affected target trips by headboats.
        Exempting from the closed area prohibition harvests of snapper-grouper species, except red snapper, caught with spearfishing gear or black sea bass pots that have valid identification tags would mitigate the effects of the area closures on commercial vessels. These effects are already incorporated in the estimated effects of the fishing prohibition on red snapper and fishing prohibition on snapper-grouper in the closed areas. There are no known recreational spearfishing activities in the closed areas.
        Requiring the use of non-stainless steel circle hooks when fishing for snapper-grouper species with snapper-grouper hook-and-line gear north of 28° N. lat. is expected to increase the fishing costs of some commercial and for-hire vessels. Depending on the physical structure of a fish's mouth and the way that they take bait, the circle hook requirement may reduce the harvest of some desired species. The potential cost increase and harvest reduction cannot be estimated, although they are deemed to be relatively small considering that circle hooks are already used on some vessels.
        The estimated short-run reductions in the net operating revenues of the directly affected small entities, particularly for-hire vessels, may be considered substantial. Small entities operating off of northeast Florida and Georgia are expected to bear most of the short-run adverse economic effects.

        Fifteen alternatives, four of which comprise the proposed action, and three sub-alternatives, one of which is the proposed action, were considered for the red snapper management measures. The first alternative to the proposed action, the no action alternative, would not conform to the Magnuson-Stevens Act requirements to end the overfished and overfishing conditions of red snapper. The second alternative to the proposed action would prohibit all commercial and recreational harvest and possession of red snapper year-round in the South Atlantic EEZ. This alternative has been determined to be insufficient to rebuild the red snapper stock within the specified timeframe due to discard mortalities from fishing for co-occurring snapper-grouper species. The third alternative to the proposed action would close four logbook grids and would close all water depths in the four subject areas. This alternative would result in larger short-run adverse economic effects than the proposed action. The fourth alternative to the proposed action would close four logbook grids and would close more water depths in the shallower parts of the four subject areas. This alternative would result in larger short-run adverse economic effects than the proposed measure. The fifth alternative to the proposed action is similar to the proposed action, except that it would close four, instead of three, logbook grids. This alternative would result in slightly larger short-run adverse economic effects than the proposed action. The sixth alternative to the proposed action would close four logbook grids and would close more water depths in the deeper parts of the four subject areas. This alternative would result in larger short-run adverse economic effects than the proposed action. The seventh alternative to the proposed action differs from the proposed action by closing four additional areas and all water depths in the subject seven areas. This alternative would result in substantially larger short-run adverse economic effects than the proposed action. The eighth alternative to the proposed action differs from the proposed action by closing four additional areas and more water depths in the shallower parts of the subject seven areas. This alternative would result in substantially larger short-run adverse economic effects than the proposed action. The ninth alternative to the proposed action differs from the proposed action by closing four additional areas. This alternative would result in substantially larger short-run adverse economic effects than the proposed action. The tenth alternative to the proposed action differs from the proposed action by closing four additional areas and more water depths in the deeper parts of the subject seven areas. This alternative would result in substantially larger short-run adverse economic effects than the proposed action. The eleventh alternative to the proposed action would, in combination with any of the alternatives that would prohibit harvest and possession of red snapper and close four or seven areas to snapper-grouper fishing, allow harvest and possession of snapper-grouper species (except red snapper) with bottom longline gear in the closed areas deeper than 50 fathoms (91 m). Relative to the proposed action, this alternative would have small adverse effects on commercial vessels and no effects on for-hire vessels. Three sub-alternatives, including the proposed action, were considered for vessels transiting through the closed areas. The first sub-alternative would be less restrictive than the proposed action by not requiring that fishing gear be appropriately stowed when vessels transit through the closed areas. This alternative would slightly mitigate the adverse economic effects of the closed areas, but it could compromise the effectiveness of enforcing regulations in the closed areas. The second sub-alternative to the proposed action would be less restrictive than the proposed action for vessels with wreckfish on board. This alternative would particularly avoid the potential unintended adverse effects on vessels fishing for wreckfish, but it could also compromise the effectiveness of enforcing regulations in the closed areas.
        Three alternatives, including the proposed action, were considered for requiring the use of circle hooks. The first alternative to the proposed action, the no action alternative, would allow but would not require the use of circle hooks, and so would not entail any additional fishing cost. On the other hand, it would not take advantage of the potential afforded by circle hooks in reducing discard and bycatch mortality of red snapper, particularly in the center of the red snapper fishing area. The second alternative to the proposed action would require the use of circle hooks throughout the South Atlantic EEZ and not just north of 28° N. lat. as in the proposed action. This alternative could entail higher fishing costs than the proposed action. It could also lower vessel revenues when some species cannot be effectively caught with circle hooks, particularly in the southern areas where red snapper harvest is relatively low.
        In addition to the foregoing actions, Amendment 17A also considered various alternatives for establishing an MSY proxy, a rebuilding schedule, a rebuilding strategy, and a monitoring program for red snapper.

        The proposed action on the MSY proxy for red snapper is the no action alternative, which would use F30%SPR as the FMSY proxy. The proposed action on the rebuilding strategy for red snapper would define a rebuilding strategy that sets FOY equal to 98 percent FMSY (98%F30%SPR), specify an ACL based on landings, establish an ACL of zero for 2010 which would remain in effect beyond 2010 until modified. OY at equilibrium would be 2,425,000 lb (1,099,961 kg) whole weight. The proposed action on the monitoring programs is to establish a fishery independent monitoring program to track the progress of red snapper. Sampling would include deployment of chevron traps, cameras, and snapper-grouperhook-and-line at randomly selected stations.

        Two alternatives, including the proposed action which is the no action alternative, were considered for the MSY/MSY proxy for red snapper. The only alternative to the proposed action uses F40%SPR as the proxy for FMSY. This alternative is more conservative than the proposed action, and thus provides more assurance that overfishing would be ended and the stock rebuilt within the specified time frame. However, the Council recommended that the status quo proxy of FMSY be maintained until the SEFSC is able to conduct a comprehensive review of how FMSY proxies should be applied across all southeastern fisheries. The Council is considering a more comprehensive approach for assigning MSY proxies for red snapper and other species in southeastern fisheries.
        Four alternatives, including the proposed action, were considered for the red snapper rebuilding schedule. The first alternative to the proposed action, the no action alternative, would not define a rebuilding schedule for red snapper. Considering that a previous rebuilding schedule expired in 2006 and the stock is overfished, this alternative would not meet the Magnuson-Stevens Act requirements. The second alternative to the proposed action would define a rebuilding schedule equal to 15 years, which is the shortest possible period to rebuild in the absence of fishing mortality. Even if retention of red snapper is prohibited, red snapper would still be caught since they have temporal and spatial coincidence with other species fishermen target. Hence, adopting this alternative would mean more stringent regulations than those of the proposed action, thereby affecting a wider range of fisheries and more economically important snapper-grouper species. This would result in much larger economic effects in the short run which may or may not be recouped in the long run unless those other affected snapper-grouper species become substantially abundant and fisheries become more economically important. The third alternative to the proposed action would define a rebuilding schedule equal to 25 years, which is the mid-point between the shortest possible (15 years) and maximum (35 years) timeframe to rebuild the stock. This alternative would require more stringent regulations in the short run and thus more short-run adverse economic effects than the proposed action. Uncertainties associated with assessments and effectiveness of proposed management measures to reduce red snapper mortality, particularly due to incidental catches, present some issues on rebuilding the stock in a timeframe shorter than the proposed action.

        Nine alternatives, including the proposed action, were considered for the rebuilding strategy, OY, ACL, and AM. With the exception of the no action alternative, each alternative includes two sub-alternatives for the ACL, and each ACL in turn includes three alternatives for the AM. It may be noted that the three AM alternatives, which all include monitoring programs, are identical for all alternatives and sub-alternatives, so they do not merit additional discussions here. The first alternative to the proposed action, the no action alternative, would not specify an ACL and so would not meet the Magnuson-Stevens Act requirements. In addition, it would set FOY at a level equivalent to 85 percent F40%SPR such that OY at equilibrium equals 2,196,000 lb (996,089 kg) whole weight. This would then imply more restrictive measures than the proposed action, resulting in larger adverse economic effects in the short run. With a lower OY level, it also would tend to generate lower long-run economic benefits than the proposed action, although it could result in a more sustainable fishery because it is more biologically conservative. The second alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 85 percent F40%SPR such that OY at equilibrium equals 2,199,000 lb (997,450 kg) whole weight. This alternative would imply more restrictive measures in the short run, resulting in larger short-run adverse economic effects and potentially lower long-run benefits than the proposed action. Being more biologically conservative, however, than the proposed action, this alternative may provide a higher probability of a more sustainable fishery. The first sub-alternative would base the ACL on landings, with the ACL equal to zero in 2010. This is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 89,000 lb (40,370 kg) whole weight in 2010. This would still require prohibition of red snapper harvest by both the commercial and recreational sectors. In addition, this would require monitoring of dead discards so that total removal would not exceed the ACL. The difficulty of monitoring dead discards, together with the likelihood that self-reported discards would be understated, raises concerns regarding the eventual effectiveness of the rebuilding strategy. The third alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 75 percent F40%SPR such that OY at equilibrium equals 2,104,000 lb (954,358 kg) whole weight. This alternative would imply more restrictive measures in the short-run, resulting in larger short-run adverse economic effects and potentially lower long-run benefits than the proposed action. Because it is more biologically conservative than the proposed action, it may provide a higher probability of a more sustainable fishery. The first sub-alternative is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 79,000 lb (35,834 kg) whole weight in 2010. This sub-alternative raises similar issues of concern associated with the monitoring of dead discards. The fourth alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 65 percent F40%SPR such that OY at equilibrium equals 1,984,000 lb (899,927 kg) whole weight. This alternative would imply more restrictive measures in the short run, resulting in larger short-run adverse economic effects. With a lower OY, it may result in lower long-run benefits than the proposed action, although it may provide a higher probability of a more sustainable fishery because it is more biologically conservative. The first sub-alternative is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 68,000 lb (30,844 kg) whole weight in 2010. This sub-alternative raises similar issues of concern associated with the monitoring of dead discards. The fifth alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 97 percent F40%SPR such that OY at equilibrium equals 2,287,000 lb (1,037,366 kg) whole weight. This alternative would imply more restrictive measures in the short run, resulting in larger short-run adverse economic effects. Because of a lower OY, it may result in lower long-run benefits than the proposed action, although it may result in a higher probability of a more sustainable fishery due to its being more biologically conservative than the proposed action. The first sub-alternative is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 68,000 lb (30,844 kg) whole weight in 2010. This sub-alternative raises similar issues of concern associated with the monitoring of dead discards. The sixth alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 85 percent F30%SPR such that OY at equilibrium equals 2,392,000 lb (1,084,993 kg) whole weight. This alternative would imply more restrictive measures than the proposed action in the short run, resulting in larger short-run adverse economic effects and potentially lower long-run benefits because of a lower OY. The first sub-alternative is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 125,000 lb (56,699 kg) whole weight in 2010. This sub-alternative raises similar issues of concern associated with the monitoring of dead discards, although the higher ACL than that of previous sub-alternatives would tend to mitigate but not erase such concerns. The seventh alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 75 percent F30%SPR such that OY at equilibrium equals 2,338,000 lb (1,060,499 kg) whole weight. This alternative would imply more restrictive measures in the short run, resulting in lower short-run adverse economic effects and potentially higher long-run benefits because of a lower OY. The first sub-alternative is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 111,000 lb (50,349 kg) whole weight in 2010. This sub-alternative raises similar issues of concern associated with the monitoring of dead discards, although the higher ACL than that of some previous sub-alternatives would tend to mitigate but not erase such concerns. The eighth alternative to the proposed action would define a red snapper rebuilding strategy that sets FOY at a level equivalent to 65 percent F30%SPR such that OY at equilibrium equals 2,257,000 lb (1,023,758 kg) whole weight. This alternative would imply more restrictive measures than the proposed action in the short run, resulting in lower short-run adverse economic effects and potentially lower long-run benefits because of a lower OY. The first sub-alternative is identical to the proposed action. The second sub-alternative would base the ACL on total removal, with the ACL equal to 97,000 lb (43,998 kg) whole weight in 2010. This sub-alternative raises similar issues of concern associated with the monitoring of dead discards, particularly that the ACL is lower than that of some previous sub-alternatives.
        Three alternatives, including the proposed action, were considered for the red snapper monitoring program. The first alternative, the no action alternative, would not entail any additional cost by utilizing existing data collection programs. However, existing data collection programs may not be adequate to collect vital information on red snapper during the time harvest of the species is prohibited. The second alternative to the proposed action would establish a red snapper fishery dependent monitoring program involving for-hire vessels. This alternative offers some potential, as does the proposed action, in collecting the needed information on red snapper, especially during the period when harvest of the species is prohibited. Although the near ideal approach is to combine this alternative with the proposed action, funding for both may not be available on a continuing basis.

          List of Subjects in 50 CFR Part 622

        Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

          Dated: August 10, 2010.
          Eric C. Schwaab,
          Assistant Administrator for Fisheries, 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 § 622.32, paragraph (b)(3)(vi) is added to read as follows:

            § 622.32
            Prohibited and limited-harvest species.
            (b) * * *

            (3) * * *
            (vi) Red snapper may not be harvested or possessed in or from the South Atlantic EEZ. Such fish caught in the South Atlantic EEZ must be released immediately with a minimum of harm. In addition, for a person on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, the provisions of this closure apply in the South Atlantic, regardless of where such fish are harvested, i.e., in state or Federal waters.
            3. In § 622.35, paragraph (l) is revised to read as follows:

            § 622.35
            Atlantic EEZ seasonal and/or area closures.
            (l) Area closure for South Atlantic snapper-grouper. (1) No person may harvest or possess a South Atlantic snapper-grouper in or from the South Atlantic EEZ in the closed area defined in paragraph (1)(2) of this section, except a person harvesting South Atlantic snapper-grouper (see § 622.32(b)(3) for the current prohibitions on the harvest and possession of red snapper and other snapper-grouper species) with spearfishing gear or with a sea bass pot that has a valid identification tag issued by the RA attached, as specified in § 622.6(b)(1)(i)(B). This prohibition on possession does not apply to a person aboard a vessel that is transiting through the closed area with fishing gear appropriately stowed as specified in paragraph (l)(3) of this section.
            (2) The area closure for South Atlantic snapper-grouper is bounded by rhumb lines connecting, in order, the following points:

                Point
                North lat.
                West long.

                A
                28°00′00″
                80°00′00″

                B
                28°00′00″
                80°10′57″

                C
                29°31′40″
                80°30′34″

                D
                30°02′03″
                80°50′45″

                E
                31°00′00″
                80°35′19″

                F
                31°00′00″
                80°00′00″

                G
                30°52′54″
                80°00′00″

                H
                30°27′19″
                80°11′41″

                I
                29°54′31″
                80°15′51″

                J
                29°24′24″
                80°13′32″

                K
                28°27′20″
                80°00′00″

                A
                28°00′00″
                80°00′00″

            (3) For the purpose of paragraph (l)(1) of this section, continuous transiting or transit through means that a fishing vessel crosses the area closure on a constant heading, along a continuous straight line course, while underway, making way, not anchored, and by means of a source of power at all times (not including drifting by means of the prevailing water current or weather conditions). Fishing gear appropriately stowed means -
            (i) A longline may be left on the drum if all gangions and hooks are disconnected and stowed below deck. Hooks cannot be baited. All buoys must be disconnected from the gear; however, buoys may remain on deck.
            (ii) A trawl or try net may remain on deck, but trawl doors must be disconnected from such net and must be secured.
            (iii) A gillnet, stab net, or trammel net must be left on the drum. Any additional such nets not attached to the drum must be stowed below deck.
            (iv) Terminal gear (i.e., hook, leader, sinker, flasher, or bait) used with an automatic reel, bandit gear, buoy gear, trolling gear, handline, or rod and reel must be disconnected and stowed separately from such fishing gear. A rod and reel must be removed from the rod holder and stowed securely on or below deck.
            (v) A crustacean trap or golden crab trap cannot be baited. All buoys must be disconnected from the gear; however, buoys may remain on deck.

            (vi) Other stowage methods may be authorized by the Regional Administrator in the future. These would be published in the Federal Register and become effective at that time.
            4. In § 622.37, paragraph (e)(1)(v) is revised to read as follows:

            § 622.37
            Size limits.
            (e) * * *
            (1) * * *
            (v) Red snapper -20 inches (50.8 cm), TL, however, see § 622.32(b)(3)(vii) for the current prohibition on the harvest and possession of red snapper.
            5. In § 622.39, paragraph (d)(1)(iv) and (d)(1)(viii) are revised and paragraph (d)(1)(ix) is added to read as follows:

            § 622.39
            Bag and possession limits.
            (d) * * *
            (1) * * *
            (iv) Snappers, combined -10. However, excluded from this 10-fish bag limit are cubera snapper, measuring 30 inches (76.2 cm), TL, or larger, in the South Atlantic off Florida, and red snapper and vermilion snapper. (See § 622.32(b)(3)(vii) for the prohibition on harvest and possession of red snapper and § 622.32(c)(2) for limitations on cubera snapper measuring 30 inches (76.2 cm), TL, or larger, in or from the South Atlantic EEZ off Florida.)
            (viii) South Atlantic snapper-grouper, combined -20. However, excluded from this 20-fish bag limit are tomtate, blue runner, and those specified in paragraphs (d)(1)(i) through (vii), and (ix) of this section.
            (ix) No red snapper may be retained.
            6. In § 622.41, paragraph (n) introductory text is revised and paragraph (n)(2) is added to read as follows:

            § 622.41
            Species specific limitations.
            (n) * * * For a person on board a vessel to harvest or possess South Atlantic snapper-grouper in or from the South Atlantic EEZ, the vessel must possess on board and such person must use the gear as specified in paragraphs (n)(1) and (n)(2) of this section.
            (2) Non-stainless steel circle hooks. Non-stainless steel circle hooks are required when fishing with hook-and-line gear and natural baits north of 28° N. lat.
            7. In § 622.45, paragraph (d)(10) is added to read as follows:

            § 622.45
            Restrictions on sale and purchase.
            (d) * * *
            (10) No person may sell or purchase a red snapper harvested from or possessed in the South Atlantic, i.e., state or Federal waters, by a vessel for which a Federal commercial permit for South Atlantic snapper-grouper has been issued.

      [FR Doc. 2010-20070 Filed 8-12-10; 8:45 am]
      BILLING CODE 3510-22-S