        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R08-OAR-2010-0909; FRL-9228-9]
        Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the Clean Air Act, EPA is proposing to find that the Utah State Implementation Plan (SIP) is substantially inadequate to attain or maintain the national ambient air quality standards or to otherwise comply with the requirements of the Clean Air Act. Specifically, the SIP includes Utah rule R307-107, which exempts emissions during unavoidable breakdowns from compliance with emission limitations. This rule undermines EPA's, Utah's, and citizens' ability to enforce emission limitations that have been relied on to ensure attainment or maintenance of the national ambient air quality standards or meet other Clean Air Act requirements. If EPA finalizes this proposed finding of substantial inadequacy, Utah will be required to revise its SIP to correct this deficiency within 12 months of the effective date of our final rule. If EPA finds that Utah has failed to submit a complete SIP revision as required by a final rule or if EPA disapproves such a revision, such finding or disapproval would trigger clocks for mandatory sanctions and an obligation for EPA to impose a Federal Implementation Plan. EPA is also proposing that if EPA makes such a finding or disapproval, sanctions would apply consistent with 40 CFR 52.31, such that the offset sanction would apply 18 months after such finding or disapproval and highway funding restrictions would apply six months later unless EPA first takes action to stay the imposition of the sanctions or to stop the sanctions clock based on the State curing the SIP deficiencies. EPA is also requesting comment on whether EPA should exercise its discretionary authority under the Clean Air Act to impose highway funding restrictions in all areas of the State, not just in nonattainment areas.

          DATES:
          Comments must be received on or before December 20, 2010.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2010-0909, by one of the following methods:
          • http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          • E-mail: russ.tim@epa.gov.

          • Mail: Callie A. Videtich, Director, Air Program, Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
          • Fax: (303) 312-6064 (please alert the individual listed in FOR FURTHER INFORMATION CONTACT if you are faxing comments).
          • Hand Delivery: Callie A. Videtich, 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 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-2010-0909. 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” systems, 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 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. 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 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 hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency, 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 a.m. to 4 p.m., excluding Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Tim Russ, Air Program, Mailcode 8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6479, or russ.tim@epa.gov.

        SUPPLEMENTARY INFORMATION:

        Definitions
        For the purpose of this document, the following definitions apply:
        (i) The word Act or initials CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
        (ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.
        (iii) The initials NAAQS mean national ambient air quality standard.
        (iv) The initials SIP mean or refer to State Implementation Plan.
        (v) The words State or Utah mean the State of Utah, unless the context indicates otherwise.
        Table of Contents

          I. General Information
          II. Background
          III. Why is EPA proposing a SIP call?
          A. Deficiencies in R307-107-1
          B. Deficiencies in R307-107-2
          C. Conclusion
          IV. What happens if EPA issues a final SIP call and the State of Utah does not submit a complete SIP revision that responds to the SIP call or if EPA disapproves a SIP revision that responds to the SIP call?
          V. Proposed Action
          VI. Statutory and Executive Order Reviews

        I. General Information
        What should I consider as I prepare my comments for EPA?
        1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. 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
        On September 20, 1999, Assistant Administrator for Enforcement and Compliance Assurance, Steven A. Herman, and Assistant Administrator for Air and Radiation, Robert Perciasepe, issued the EPA's most recent policy on appropriate State Implementation Plan (SIP) provisions addressing excess emissions during periods of startup, shutdown and malfunction (SSM). “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup and Shutdown” (1999 Policy). The 1999 Policy indicated that it was expanding on and clarifying two previous policies issued in 1982 and 1983 by then Assistant Administrator for Air, Noise and Radiation Kathleen Bennett (“1982 Policy” and “1983 Policy”).
        In the 1982 and 1983 Policies, Assistant Administrator Bennett enunciated the Agency's position that SIPs should not be approved if they include exemptions for excess emissions during malfunction events.1

           These policies reflect the Agency's interpretation that broad exemptions from compliance with emission limitations during periods of malfunction prevent a SIP from adequately ensuring attainment and maintenance of national ambient air quality standards (NAAQS). For purposes of demonstrating attainment and maintenance, states rely on assumed compliance with emission limitations. See, e.g., Clean Air Act (CAA) sections 110(a)(2)(A) and (C); 40 CFR 51.112; Train v. NRDC, 421 U.S. 60, 78-79 (1975). Thus, the 1982 and 1983 Policies indicated that, because SIPs must provide for attainment and maintenance of the NAAQS, any SIP provisions addressing malfunctions must be narrowly drawn and should not provide a blanket exemption from compliance with emission limitations; all periods during which emissions exceed emission limitations (“excess emissions”) should constitute violations under the SIP.

            1 As indicated above, the 1982, 1983, and 1999 Policies also address excess emissions provisions for startup and shutdown events. However, because our proposed action only addresses a malfunction provision—Utah's unavoidable breakdown rule—we are not including any further discussion of the Policies as they relate to startup and shutdown.

        The 1982 and 1983 Policies stated that EPA could approve SIP revisions that incorporated an enforcement discretion approach as described in the Policies. This enforcement discretion approach envisioned commencement of a proceeding to notify the source of its violation and a demonstration by the source that the excess emissions, “though constituting a violation,” were due to an unavoidable malfunction. Following the proceeding and consideration of specific criteria, the state agency would decide whether to pursue an enforcement action. The 1982 and 1983 Policies also advised that the state could choose not to include in the SIP any provision on malfunctions, which reflected the fact that the CAA does not require states to include in SIPs any form of relief for violations caused by malfunctions.
        EPA understood that some malfunctions are unavoidable: “Generally, EPA agrees that the imposition of a penalty for sudden and unavoidable malfunctions caused by circumstances entirely beyond the control of the owner and/or operator is not appropriate.” (1982 and 1983 Policies). However, EPA was also mindful of its duty under the CAA to protect the NAAQS:

          “The rationale for establishing these emissions as violations, as opposed to granting automatic exemptions, is that SIPs are ambient-based standards and any emissions above the allowable may cause or contribute to violations of the national ambient air quality standards. Without clear definitions and limitations, these automatic exemption provisions could effectively shield excess emissions arising from poor operation and maintenance or design, thus precluding attainment. Additionally, by establishing an enforcement discretion approach and by requiring the source to demonstrate the existence of an unavoidable malfunction on the source, good maintenance procedures are indirectly encouraged.” (1982 Policy.) 2

            2 Even prior to the issuance of the 1982 and 1983 Policies, it was our interpretation that all excess emissions, regardless of cause, should be treated as violations so as to provide sources with the incentive to properly design their facilities in the first instance and to improve their operation and maintenance practices over time. See, e.g., 42 FR 58171 (November 8, 1977).

        The 1999 Policy reiterated EPA's interpretation that all periods of excess emissions should be considered violations. However, the 1999 Policy reflected our interpretation that a state could include a narrowly crafted affirmative defense provision in the SIP as an alternative to an enforcement discretion provision. Under this approach, a SIP could provide an affirmative defense to an enforcement action for penalties, but not to an action for injunctive relief. The Agency explained that because periods of excess emissions could undermine attainment and maintenance of the NAAQS and protection of prevention of significant deterioration (PSD) increments, an affirmative defense to an action for injunctive relief would not be appropriate.3

            3 In a 2009 decision, the United States Court of Appeals for the Tenth Circuit held that the policy was a “reasonable interpretation of the Clean Air Act.” Arizona Public Service Company v. EPA, 562 F.3d 1116, 1129 (10th Cir. 2009). See also Michigan Dept. of Environmental Quality v. EPA, 230 F.3d 181 (6th Cir. 2000).

        We also indicated in the 1999 Policy that we would not approve a rule that would bar EPA or citizen enforcement based on a state's decision to exercise its discretion not to pursue an enforcement action. EPA explained that such a rule would be inconsistent with the regulatory scheme established in Title I of the CAA.
        Finally, the 1999 Policy noted that some SIPs had been approved that appeared to be in conflict with EPA's SSM policies. The Policy indicated that EPA Regional Offices should work with the states to ensure SIPs were consistent with EPA's interpretation of the Act's requirements.
        Since the 1999 Policy was issued, EPA Region VIII has worked with states within the Region to ensure that their SIPs are consistent with EPA's interpretation of the Act as set forth in the 1982, 1983, and 1999 Policies.4
           Shortly after the 1999 Policy was issued, we advised Utah that its unavoidable breakdown rule was inconsistent with the CAA, and since that time, we have asked Utah several times to revise the rule. Among other things, the rule provides that “emissions resulting from an unavoidable breakdown will not be deemed a violation * * * ”

            4 For example, at our request, the State of Colorado revised its SIP provisions for SSM. We approved revised provisions in 2006 (71 FR 8958, February 22, 2006) and 2008 (73 FR 45879, August 7, 2008). At our request, the State of Wyoming revised its SIP provision for malfunctions. We approved the revised provision on April 16, 2010 (75 FR 19886). At our request, the State of North Dakota revised its SIP provision for malfunctions and submitted the revised provision to us on April 6, 2009. That provision is modeled on the Wyoming provision, and we intend to propose action on it shortly.

        Some version of the Utah unavoidable breakdown rule has been in the SIP for many years. In 1980, EPA approved a variation of the current Utah unavoidable breakdown rule. In the proposed rulemaking preamble, EPA stated that it could “not fully approve Regulation 4.7 because it exempts certain excess emissions from being violations of the Air Conservation Regulations,” but then proposed to approve Utah's malfunction procedures because any exemptions granted by the Utah Executive Secretary “are not applicable as a matter of federal law.” 44 FR 28688, 28691 (May 16, 1979). EPA's final approval of the regulation mirrored this concept. 45 FR 10761, 10763 (February 19, 1980). However, thirty years later, it is not clear how EPA reached the conclusion that exemptions granted by Utah would not apply as a matter of federal law or whether a court would honor EPA's interpretation; the Utah rule itself makes no reference to a reservation of federal authority. Instead, the rule merely states that information submitted by a source regarding a breakdown event would be “used by the executive secretary in determining whether a violation has occurred and/or the need of further enforcement action.”
        EPA approved a revised version of the rule in 1994 with no preamble discussion, except to say that the Utah air rules had been renumbered and new requirements had been added (59 FR 35036, July 8, 1994; 40 CFR 52.2320(c)(25)(i)(A)). The key aspects of the unavoidable breakdown rule remained the same.
        Subsequently, Utah again re-numbered its entire SIP regulations, and EPA approved the re-numbered regulations, including the re-numbered unavoidable breakdown rule, to conform the federally-approved SIP to the numbering of Utah's regulations. (70 FR 59681 (October 13, 2005).) EPA did not consider the substance of the unavoidable breakdown rule in that action. Instead, EPA indicated that it was only approving the renumbering and that attempts to address problems in the rules were ongoing:

          “By this action, EPA has reviewed the Utah Department of Air Quality's (UDAQ) SIP submittals and found that these SIP submittals only renumber and restructure UDAQ's rules. EPA has not reviewed the substance of these rules as part of this action; EPA approved these state rules into the SIP in previous rulemakings. The EPA is now merely approving the renumbering system submitted by the State. The current version of UDAQ's rules does not contain substantive changes from the prior codification that we approved into the SIP. EPA acknowledges that there are ongoing discussions with Utah to address EPA's concerns with some rule language that EPA previously approved into the Utah SIP. In an April 18, 2002 letter from Richard Sprott, Director of Utah's Division of Air Quality, to Richard Long, Director of the Air and Radiation Program in EPA Region 8, UDAQ committed to work with us to address our concerns with the Utah SIP. Because the SIP submittals only restructure and renumber the existing SIP-approved regulations, contain no substantive changes, and UDAQ has committed to address EPA's concerns, we believe it is appropriate to propose to approve the submittal. Approving the restructured and renumbered Utah rules into the SIP will also facilitate future discussions on the rules. EPA will continue to require the State to correct any rule deficiencies despite EPA's approval of this recodification.” (70 FR at 59683)

        Over the years Utah personnel acknowledged that the unavoidable breakdown rule should be revised and committed to do so. For example, in a January 17, 2001 letter to EPA, Rick Sprott, then the Executive Director of the Utah Division of Air Quality (UDAQ), wrote the following:

          “With respect to EPA's concern with the breakdown rule currently approved into Utah's SIP, UDAQ agrees that the rule would benefit from clarification.”

          Later, in an April 18, 2002 letter,5
             Mr. Sprott wrote the following:

              5 April 18, 2002 letter from Rick Sprott, UDAQ to Richard Long, EPA referred to as 15-point commitment letter.

          “The Utah Division of Air Quality commits to work with EPA in good faith to develop approvable SIP revisions, which address the following issues:
          * * *
          8. Unavoidable breakdown rules and consistency with the EPA September 20, 1999 policy regarding such breakdowns.”

        In 2004, UDAQ staff drafted replacement rule language for the breakdown rule, consulted with EPA and other stakeholders, and initiated the State's public process for SIP revisions. EPA provided detailed comments regarding draft rule language and in January 2005 traveled to Utah to provide a detailed presentation to UDAQ and industry stakeholders regarding EPA's interpretations of the CAA and concerns regarding UDAQ's proposed replacement rule language.
        Following the January 2005 meeting, Fred Nelson of the Utah Attorney General's Office prepared another draft of possible replacement rule language, which he shared with EPA and industry representatives. In May 2005, in an attempt to ensure that any rule revision could ultimately be approved by EPA, EPA provided specific comments and suggestions to Mr. Nelson regarding this draft. However, UDAQ did not pursue further rulemaking action at that time.
        During the August 2, 2006 midyear review between UDAQ and EPA, the unavoidable breakdown rule was again discussed. Mr. Sprott indicated that he did not want to pursue further action on the unavoidable breakdown rule given the disagreement between Utah industry and EPA. However, he said he was aware that Colorado was in the process of revising its malfunction rule, that he would be happy to benefit from the Colorado process, and that if it concluded successfully, he would lead the effort to adopt a new rule in Utah. Mr. Sprott also said that while he wanted to complete a rule revision through a cooperative process, if it couldn't be done that way, EPA should do a SIP call. Although Colorado subsequently adopted a revised malfunction rule and we approved it into the SIP without challenge (73 FR 45879, August 7, 2008), we are unaware of any further steps taken by Utah to revise its unavoidable breakdown rule.
        To assure that a state's SIP provides for attainment and maintenance of the NAAQS, and compliance with other CAA requirements, sections 110(a)(2)(H) and 110(k)(5) of the CAA authorize EPA to find that a SIP is substantially inadequate to attain or maintain a NAAQS, or comply with other CAA requirements, and to require (“call for”) the state to submit, within a specified time period, a SIP revision to correct the inadequacy. This CAA requirement for a SIP revision is known as a “SIP call.” The CAA authorizes EPA to allow a state up to 18 months to respond to a SIP call.
        On September 3, 2009, WildEarth Guardians (WEG) filed a complaint against EPA in the U.S. District Court for the District of Colorado (Civil Action No. 09-cv-02109-MSK-KLM) seeking, among other things, an injunction requiring EPA to issue a SIP call to Utah to revise the unavoidable breakdown rule. On November 23, 2009, we entered into a Consent Decree with WEG that requires us to sign a notice of final rulemaking action by February 28, 2011. In that final rulemaking action we must determine whether the Utah breakdown provision (Utah Regulations 307-107-1 through 307-107-5) renders the Utah SIP “substantially inadequate” within the meaning of section 110(k)(5) of the CAA, 42 U.S.C. 7410(k)(5), and, if EPA determines that the SIP is substantially inadequate, require the State to revise the SIP as it relates to the Utah breakdown provision. We intend to meet the requirements of the Consent Decree through the rulemaking action we are initiating today.
        III. Why is EPA proposing a SIP call?
        Utah rule R307-107 contains various provisions that are inconsistent with EPA's interpretations regarding the appropriate treatment of malfunction events in SIPs and which render the Utah SIP substantially inadequate. As a result, we are calling for a SIP revision.
        A. Deficiencies in R307-107-1
        R307-107-1 indicates it applies to all regulated pollutants including those for which there are NAAQS and states that “emissions resulting from unavoidable breakdown will not be deemed a violation of these regulations.” As described above, our interpretation of the CAA as expressed in our various policy statements since the early 1980s is that SIP provisions may not provide that periods of excess emissions are not violations.

        We believe the Utah rule's broad exemption undermines the ability to protect the NAAQS, PSD increments, and visibility through enforcement of emission limits contained in the SIP. The Utah SIP contains generic emission limits that help areas maintain the NAAQS as well as emission limits specifically modeled and relied on to bring areas not attaining the NAAQS into attainment. See, e.g., Utah rule R307-201 (“General Emission Standards”) and Section IX.H.1 of the Utah SIP (contains emission limits for the Utah County PM10 nonattainment area SIP). Because the NAAQS are not directly enforceable against individual sources,6
           SIPs rely on the adoption and enforcement of these generic and specific emission limits to attain and maintain the NAAQS, as well as to protect PSD increments and meet other CAA requirements, such as protection of visibility in Class I areas.

            6 See, e.g., Coalition Against Columbus Ctr. v. New York, 967 F.2d 764, 769 (2d Cir. 1992); League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1173 (9th Cir. 1979); 57 FR 32276, July 21, 1992.

        In the case of an unavoidable breakdown, the rule's exemption eliminates any opportunity to obtain injunctive relief that may be needed to protect the NAAQS, increments, and visibility. Thus, the rule impedes the ability to protect public health and the environment. Furthermore, the rule's exemption reduces a source's incentive to design, operate, and maintain its facility to meet emission limits at all times.

        We expect some commenters may assert that we need to show a direct causal link between unavoidable breakdown excess emissions and specific threats to or violations of the NAAQS to conclude that the SIP is substantially inadequate. We do not agree. It is our interpretation that the fundamental integrity of the CAA's SIP process and structure are undermined if emission limits relied on to meet CAA requirements related to protection of public health and the environment can be violated without potential recourse. We do not believe we are restricted to issuing SIP calls only after a violation of the NAAQS has occurred or only where a violation can be directly linked to specific excess emissions. It is sufficient that emissions limits to which the unavoidable breakdown exemption applies have been, are being, and will be relied on to attain and maintain the NAAQS and meet other CAA requirements.7

            7 The U.S. Court of Appeals for the Eleventh Circuit has recognized that a SIP call under CAA section 110(k)(5) is the appropriate mechanism for EPA to require a change to an existing SSM provision in a SIP: “EPA policy guidance cannot trump the SSM Rule adopted by Georgia and approved formally by the EPA * * * If the EPA believes that its current interpretation of the Clean Air Act requires Georgia to modify its SSM Rule, the EPA should require the state to revise its SIP to conform to EPA policy” (citing CAA section 110(k)(5)).

        Our interpretation of the CAA is supported by sections 110 and 302 of the CAA. Section 110(a)(2)(A) requires each SIP to include enforceable emission limitations necessary or appropriate to meet the CAA's applicable requirements. As noted above, these applicable requirements include attainment and maintenance of the NAAQS, prevention of significant deterioration, and improvement and protection of visibility in national parks and wilderness areas. Section 302(k) defines emission limitation as a requirement established by a state or EPA that “limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” (Emphasis added.) Because of the exemption in R307-107-1, emission limits in the Utah SIP that have been relied on by the State to demonstrate attainment and maintenance of the NAAQS and meet other CAA requirements do not limit emissions on a continuous basis and are not fully enforceable.

        R307-107-1 is also substantially inadequate because it applies to all regulated pollutants, not just NAAQS pollutants, and because it indicates that excess emissions from an unavoidable breakdown are not deemed a violation of “these regulations.” “These regulations” includes the totality of Utah's air pollution control regulations, which include the regulations Utah has incorporated by reference to receive delegation of federal authority—for example, New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPS). See Utah rules R307-210 and R307-214. To the extent any exemptions with respect to malfunctions from these technology-based standards are warranted, the federal standards contained in EPA's regulations already specify the appropriate exemptions. See, e.g., 40 CFR 60.48Da(c). No additional exemptions are warranted or appropriate. See, e.g., 40 CFR 60.10(a); 40 CFR 63.12(a)(1); and the 1999 Policy, Attachment, page 3. Thus, R307-107-1 is substantially inadequate because it improperly provides an exemption not contained in and not sanctioned by the delegated federal standards.

        Our interpretation, as it applies to both technology-based standards and SIP limits, is further supported by a 2008 U.S. Court of Appeals decision that vacated EPA's general malfunction exemption from CAA section 112(d) maximum achievable control technology (MACT) standards. Sierra Club v. EPA, 551 F.3d 1019 (DC Cir. 2008), cert. denied. The court vacated the exemption because it was inconsistent with the CAA's requirement that emission standards—such as the 112(d) MACT standards—must apply continuously, as expressed in section 302(k) of the CAA. The court specifically held that a regulatory provision establishing a general duty to minimize hazardous air pollutant (HAP) emissions during malfunctions was not an emission standard under CAA section 112. Although the decision addressed the HAP program and not the SIP program, it carries significant weight for the SIP program as well because section 302(k) is equally relevant for the SIP program. R307-107-1's broad malfunction exemption from “these regulations” is inconsistent with section 302(k) as interpreted by the Court in Sierra Club.

        As referenced in R307-107-1, “these regulations” would also include Utah's PSD and nonattainment major new source review (NSR) requirements. This means a source could use the provisions of R307-107 to claim an exemption from best available control technology (BACT) or lowest achievable emission rate (LAER) limits in a major source permit for excess emissions resulting from an unavoidable breakdown. We have consistently interpreted the Act to not allow for outright exemptions from BACT limits, and the same logic applies to LAER limits. See, e.g., 1977 memorandum entitled “Contingency Plan for FGD Systems During Downtime as a Function of PSD,” from Edward E. Reich to G.T. Helms and January 28, 1993 memorandum entitled “Automatic or Blanket Exemptions for Excess Emissions During Startup and Shutdowns under PSD,” from John B. Rasnic to Linda M. Murphy. As noted, in order to ensure non-degradation of air quality at all times under the PSD program and protection of the NAAQS at all times, it is necessary for a source to comply with its permit limits at all times. This is another reason R307-107's exemption renders the Utah SIP substantially inadequate.
        B. Deficiencies in R307-107-2
        R307-107-2 requires the source to submit information regarding an unavoidable breakdown to the executive secretary of Utah's Air Quality Board (UAQB) and indicates that the information “shall be used by the executive secretary in determining whether a violation has occurred and/or the need of further enforcement action.” In other words, the executive secretary shall determine whether the excess emissions were caused by an unavoidable breakdown and, thus, whether the excess emissions constitute a violation or not. This rule provision appears to give the executive secretary exclusive authority to determine whether excess emissions constitute a violation.8

           We believe this is inconsistent with the enforcement structure contemplated by the CAA. Specifically, the CAA provides authority to enforce violations of SIP and other CAA emission limits to EPA and citizens as well as to the states. Thus, the CAA provides EPA and citizens with authority to pursue a violation even if a state chooses not to. See sections 113 and 304 of the CAA. It is our interpretation, expressed in our 1999 Policy, that SIP provisions that give exclusive authority to a state to determine whether an enforcement action can be pursued for an exceedance of an emission limit are inconsistent with the CAA's regulatory scheme. EPA and citizens, and any court in which they seek to file an enforcement claim, must retain the authority to independently evaluate whether a source's exceedance of an emission limit warrants enforcement action. Because a court could interpret section R307-107-2 as undermining the ability of EPA and citizens to independently exercise enforcement discretion granted by the CAA, it is substantially inadequate to comply with CAA requirements related to enforcement. Because it undermines the envisioned enforcement structure, attainment and maintenance of the NAAQS and compliance with other CAA requirements related to PSD, visibility, NSPS, and NESHAPS is less certain. Potential EPA and citizen enforcement provides an important safeguard in the event a state lacks resources or appropriate intention to enforce CAA violations. Thus, R307-107-2 renders the SIP substantially inadequate to attain or maintain the NAAQS or otherwise comply with the CAA.

            8 As we noted earlier, in a 1980 approval of a predecessor to the current unavoidable breakdown rule, EPA indicated that EPA might not approve exemptions granted by the State and that the State's exemption would not apply as a matter of federal law. Thirty years later, we are not sanguine that a court would uphold our interpretation, or that five years from now, anyone will remember that interpretation. See, e.g., U.S. v. Ford Motor Co., 736 F.Supp. 1539 (W.D. Mo. 1990) and U.S. v General Motors Corp., 702 F.Supp. 133 (N.D. Texas 1988) (EPA could not pursue enforcement of SIP emission limits where states had approved alternative limits under procedures EPA had approved into the SIP.) While we do not agree with the holdings of these cases, we think the reasonable course is to eliminate any uncertainty about reserved enforcement authority by requiring the State to revise or remove the unavoidable breakdown rule from the SIP.

        C. Conclusion
        For the reasons stated above, EPA is proposing to find, pursuant to sections 110(a)(2)(H) and 110(k)(5) of the CAA, that the Utah SIP is substantially inadequate to attain or maintain the NAAQS or to otherwise comply with the requirements of the CAA. Utah rule R307-107 improperly undermines EPA's, Utah's, and citizens' ability to enforce emission limitations that have been relied on in the SIP to ensure attainment and maintenance of the NAAQS or meet other CAA requirements. Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the CAA, we are proposing to call for Utah to remove R307-107 from the SIP or revise it to be consistent with CAA requirements.

        We are proposing that Utah must respond to our SIP call within 12 months of the effective date of a final rule issuing a SIP call. We think this is a reasonable amount of time for several reasons. First, Utah has been aware of our concerns for years. Utah previously initiated the State rulemaking process to address the SIP deficiencies but dropped its efforts when it couldn't achieve consensus. Second, industry and WildEarth Guardians' predecessor had extensive involvement in the development of the Colorado malfunction rule, which, as noted above, we approved in 2008. The Colorado malfunction rule is readily available online, and use of the Colorado rule as a template would give the UAQB a substantial head start in addressing the SIP deficiencies. Other examples of provisions that have been approved or promulgated by EPA for areas within the Region are also available. See, e.g., https://yosemite.epa.gov/R8/R8Sips.nsf/641057911f6bd13987256b5f0054f380/722dcc2462e7856a87256ef3005f6d4f/$FILE/Ch%201%20Sect%205.pdf (Wyoming air rules, Chapter 1, Section 5, approved at 75 FR 19886, April 16, 2010); 73 FR 21418, 21464, April 21, 2008. Third, another option to address the deficiencies is to simply remove R307-107 from the SIP. Under this option, no time would be needed to develop replacement SIP rule language.
        IV. What happens if EPA issues a final SIP call and the State of Utah does not submit a complete SIP revision that responds to the SIP call or if EPA disapproves a SIP revision that responds to the SIP call?
        If Utah fails to submit a complete SIP revision that responds to a final SIP call, CAA section 179(a) provides for EPA to issue a finding of State failure. Such a finding starts mandatory 18-month and 24-month sanctions clocks and a 24-month clock for promulgation of a federal implementation plan (FIP) by EPA. The two sanctions that apply under CAA section 179(b) are the 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program and restrictions on highway funding. However, section 179 leaves it up to the Administrator to decide the order in which these sanctions apply. EPA issued an order of sanctions rule in 1994 (59 FR 39832, August 4, 1994, codified at 40 CFR 52.31) but did not specify the order of sanctions where a state fails to submit or submits a deficient SIP in response to a SIP call. However, the order of sanctions specified in that rule (40 CFR 52.31) should apply here for the same reasons discussed in the preamble to that rule. Thus, if EPA issues a final SIP call and Utah fails to submit the required SIP revision, or submits a revision that EPA determines is incomplete or that EPA disapproves, EPA proposes that the 2-to-1 emission offset requirement will apply for all new sources subject to the nonattainment new source review program 18 months following such finding or disapproval unless the State corrects the deficiency before that date. EPA proposes that the highway funding restrictions sanction will also apply 24 months following such finding or disapproval unless the State corrects the deficiency before that date. EPA is also proposing that the provisions in 52.31 regarding staying the sanctions clock and deferring the imposition of sanctions would also apply.
        Mandatory sanctions under section 179 generally apply only in nonattainment areas. By its definition, the emission offset sanction applies only in areas required to have a part D NSR program, typically areas designated nonattainment.9
           Section 179(b)(1) expressly limits the highway funding restriction to nonattainment areas. Additionally, EPA interprets the section 179 sanctions to apply only in the area or areas of the State that are subject to or required to have in place the deficient SIP and for the pollutant or pollutants the specific SIP element addresses. In this case, mandatory sanctions would apply in all areas designated nonattainment for a NAAQS within the State because Utah rule R307-107 applies statewide and applies for all NAAQS pollutants.

            9 An exception to this, not relevant here, is areas located in the Ozone Transport Region, which are required to have a part D NSR program regardless of the area's designation. See CAA section 184(b)(2).

        EPA has additional authority to impose discretionary sanctions under CAA section 110(m). EPA's authority to impose sanctions under section 110(m) is triggered by the same findings that trigger the mandatory imposition of sanctions. However, under section 110(m), EPA may impose sanctions more quickly than provided under the mandatory sanction provision and may also impose them in a broader area. Specifically, under section 110(m), EPA may impose sanctions “any time” after it has made a finding of deficiency or disapproved a SIP. In addition, EPA may impose the sanctions with respect to “any portion of the State the Administrator determines reasonable and appropriate.” Finally, although imposition of the 2-to-1 offset sanction is still limited by its terms to areas with part D NSR programs, the highway funding restrictions can be applied in areas designated as attainment or unclassifiable as well as those designated nonattainment. See 59 FR 1476 (January 11, 1994); 40 CFR 52.30(d)(2). EPA may determine whether or not to use this authority in response to a SIP failure, and, thus, they are termed discretionary sanctions.

        Because only limited portions of the State are designated nonattainment, the mandatory sanctions would not be applicable in all areas of the State that are covered by the rule we have proposed is deficient. EPA is requesting comment on whether to exercise its discretionary authority to impose the highway funding restrictions sanction in all areas of the State, regardless of designation, if it finalizes this proposed SIP call and the State fails to submit a complete SIP revision or EPA disapproves such revision. If EPA were to impose discretionary sanctions, EPA proposes that the same 24-month clock would apply to the highway funding sanction as would apply under the mandatory sanctions.
        In addition to sanctions, if EPA finalizes this SIP call and then finds that the State failed to submit a complete SIP revision that responds to the SIP call or disapproves such revision, the requirement under section 110(c) would be triggered that EPA promulgate a FIP no later than two years from the date of the finding or the disapproval if the deficiency has not been corrected.
        V. Proposed Action
        EPA is proposing that the Utah SIP is substantially inadequate to attain or maintain the NAAQS or to otherwise comply with requirements of the CAA due to significant deficiencies created by Utah's unavoidable breakdown rule, R307-107. Pursuant to CAA sections 110(a)(2)(H) and 110(k)(5), EPA is proposing to require that Utah revise the SIP to correct the inadequacies and submit the revised SIP to EPA within 12 months of the effective date of a final rule finding the SIP substantially inadequate. EPA is proposing that mandatory sanctions under CAA section 179 would apply as provided in 40 CFR 50.31 should Utah not submit a complete SIP consistent with a final SIP call requirement or should EPA disapprove any such submission. EPA is also requesting comment on whether EPA should exercise its discretionary authority under section 110(m) to impose highway funding restrictions in all areas of the State if 24 months after a sanctions clock has been triggered, the State has still not corrected the deficiency that triggered the sanctions clock.
        We are soliciting comments on these proposed actions. Final rulemaking will occur after consideration of any comments.
        VI. Statutory and Executive Order Reviews
        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

        This proposed action would only require the State of Utah to revise UAC R307-107 to address requirements of the CAA. Accordingly, the Administrator certifies that this proposed action would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because this proposed action would not impose any requirements on small entities.
        Since the only costs of this action would be those associated with preparation and submission of the SIP revision, EPA has determined that this proposed action would not include a Federal mandate that may result in expenditures of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector in any one year. Accordingly, this proposed action is not subject to the requirements of sections 202 or 205 of the unfunded mandates reform act (UMRA).
        In addition, since the only regulatory requirements of this proposed action would apply solely to the State of Utah, this action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
        Since this proposed action would impose requirements only on the State of Utah, it also does not have tribal implications. It would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
        This proposed action also does not have Federalism implications because it would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it would simply maintain the relationship and the distribution of power and responsibilities between EPA and the states as established by the CAA. This proposed SIP call is required by the CAA because EPA believes the current SIP is substantially inadequate to attain or maintain the NAAQS or comply with other CAA requirements. Utah's direct compliance costs would not be substantial because the proposed SIP call would require Utah to submit only those revisions necessary to address the SIP deficiencies and applicable CAA requirements.
        EPA interprets Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it would not establish an environmental standard, but instead would require Utah to revise a state rule to address requirements of the CAA.
        Section 12 of the National Technology Transfer and Advancement Act of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with the National Technology Transfer and Advancement Act, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. In making a finding of a SIP deficiency, EPA's role is to review existing information against previously established standards. In this context, there is no opportunity to use VCS. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

        This proposed action would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), since it would only require the State of Utah to revise UAC R307-107 to address requirements of the CAA.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Carbon monoxide, 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: November 10, 2010.
          James B. Martin,
          Regional Administrator, Region 8.

      [FR Doc. 2010-29237 Filed 11-18-10; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AV19
        Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Extension of comment period; notice of availability of new information.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the extension of the public comment period on nine new United States Geological Survey (USGS) reports produced for the Service to provide current data and modeling results relevant to the final determination of whether the polar bear (Ursus maritimus) qualifies for listing under the Endangered Species Act of 1973, as amended (Act). We intend to take these reports into consideration as we make our final listing determination on the polar bear, and are extending the reopened public comment period on the January 9, 2007, proposed rule to list the polar bear as threatened throughout its range under the Act (72 FR 1064) for an additional 15 days to allow interested parties to comment on the USGS reports. We are limited in how long we can extend the public comment period because of the statutory deadline, which requires a final listing determination within one year of publication of the proposed rule, unless an extension of up to six months is granted due to substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination.
          Please note that comments previously submitted should not be resubmitted. This comment period is open only for comments on the nine USGS reports listed below. Comments submitted during the prior comment period have been incorporated into the public record and will be fully considered during preparation of our final determination.

          DATES:
          We will accept public comments until October 22, 2007.

          ADDRESSES:
          You may submit comments and materials to us by any one of the following methods:
          (1) You may mail or hand-deliver written comments and information to the Supervisor, U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 East Tudor Road, Anchorage, AK 99503.

          (2) You may send comments by electronic mail (e-mail) to: Polar_Bear_Finding@fws.gov. For instructions on how to file comments electronically, see the “Public Comments Solicited” section below. In the event that our Internet connection is not functional, please submit your comments by one of the alternate methods listed in this section.

          (3) You may submit your comments via the Federal eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments.
          For information on obtaining copies of the nine USGS reports, see the “Obtaining Copies of the Nine USGS reports” section below.

          FOR FURTHER INFORMATION CONTACT:
          Rosa Meehan, Marine Mammals Management Office (see ADDRESSES) (telephone 907-786-3800). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        On January 9, 2007, the Service published a 12-month petition finding and proposed rule to list the polar bear (Ursus maritimus) as threatened throughout its range under the Act (72 FR 1064). The document announced a 3-month public comment period on the proposed rule, which closed on April 9, 2007. We also held three public hearings during the proposed rule's comment period, as announced in the February 15, 2007, Federal Register (72 FR 7381).
        On September 7, 2007, the Service received nine reports prepared by the USGS that provide new data and modeling outputs relevant to the final determination of whether the polar bear qualifies for listing as threatened or endangered under the Act. These reports are:
        (1) Polar Bear Population Status in the Northern Beaufort Sea by Stirling et al.
        (2) Polar Bear Population Status in Southern Hudson Bay Canada by Obbard et al.
        (3) Polar Bears in the Southern Beaufort Sea I: Survival and Breeding in Relation to Sea Ice Conditions, 2001-2006 by Regehr et al.
        (4) Polar Bears in the Southern Beaufort Sea II: Demography and Population Growth in Relation to Sea Ice Conditions by Hunter et al.
        (5)  Polar Bears in the Southern Beaufort Sea III: Stature, Mass, and Cub Recruitment in Relationship to Time and Sea Ice Extent Between 1982 and 2006 by Rode et al.
        (6) Uncertainty in Climate Model Predictions of Arctic Sea Ice Decline: An Evaluation Relevant to Polar Bears by DeWeaver.
        (7) Predicting the Future Distribution of Polar Bear Habitat in the Polar Basin from Resource Selection Functions Applied to 21st Century General Circulation Model Projections of Sea Ice by Durner et al.
        (8) Predicting Movements of Female Polar Bears between Summer Sea Ice Foraging Habitats and Terrestrial Denning Habitats of Alaska in the 21st Century: Proposed Methodology and Pilot Assessment by Bergen et al.
        (9) Forecasting the Range-wide Status of Polar Bears at Selected Times in the 21st Century by Amstrup et al.
        On September 20, 2007, we published a notice in the Federal Register announcing the availability of these nine reports and our intention to consider them in making our final listing determination (72 FR 53749). In that notice we also reopened the public comment period on the January 9, 2007, proposed rule to list the polar bear as threatened under the Act (72 FR 1064) for 15 days to provide the public the opportunity to submit comments or information on these reports. Because of the volume and complexity of the information in the reports, we are extending the public comment period for an additional 15 days. The comment period now closes on October 22, 2007. We are asking for public comments on these reports and a review of the extent to which they add to the knowledge base for making the final decision. In particular we are seeking information regarding whether the reports raise an issue of substantial disagreement among scientists knowledgeable about polar bears regarding the accuracy or sufficiency of the available data relevant to the listing determination.
        Obtaining Copies of the Nine USGS Reports
        You may obtain copies of any of the nine USGS reports:

        • By mail from the U.S. Department of the Interior, United States Geological Survey, Office of Communication, 119 National Center, Reston, VA 20192;

        • By calling USGS Public Affairs at (703) 648-4460;
        • By visiting the USGS Web site at http://www.usgs.gov/newsroom/special/polar_bears/; or

        • Via link to the USGS Web site from the Service's Web site: http://www.fws.gov/.

        Copies of the reports are also available for public inspection, by appointment during normal business hours, at the U.S. Fish and Wildlife Service, Marine Mammals Management Office (see ADDRESSES).
        Public Comments Solicited
        Comments and information submitted during the initial comment period on the January 9, 2007 (72 FR 1064), proposed rule should not be resubmitted, as this comment period is open only for comments on the nine USGS reports listed above. Our final determination of whether the polar bear qualifies as threatened or endangered under the Act will take into consideration all comments and information we receive during both comment periods.

        You may submit your comments and any materials concerning the above reports by any one of several methods (see ADDRESSES). If you use e-mail to submit your comments, please include “Attn: Polar Bear Finding” in your e-mail subject header, preferably with your name and return address in the body of your message.
        Before including your address, phone number, e-mail address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public view your personal identifying information, we cannot guarantee that we will be able to do so.
        Author
        The primary author of this notice is staff of the U.S. Fish and Wildlife Service.

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

          Dated: September 28, 2007.
          Kenneth Stansell,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 07-4946 Filed 10-2-07; 11:36 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 191001-0048]
        RIN 0648-BI80
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Amendment 8

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

          ACTION:
          Proposed rule, request for comments.

          SUMMARY:
          This rule proposes regulations to implement Amendment 8 to the Atlantic Herring Fishery Management Plan. The New England Fishery Management Council developed Amendment 8 to specify a long-term acceptable biological catch control rule for Atlantic herring and address localized depletion and user group conflict. This amendment would establish an acceptable biological catch control rule that accounts for herring's role in the ecosystem and prohibit midwater trawling in inshore Federal waters from the U.S./Canada border to the Rhode Island/Connecticut border. Amendment 8 is intended to support sustainable management of the herring resource and help ensure that herring is available to minimize possible detrimental biological impacts on predators of herring and associated socioeconomic impacts on other user groups.

          DATES:
          Public comments must be received by November 25, 2019.

          ADDRESSES:
          You may submit comments, identified by NOAA-NMFS-2019-0078, by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal.
          1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0078;

          2. Click the “Comment Now!” icon and complete the required fields; and
          3. Enter or attach your comments.
          • Mail: Submit written comments to Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the Proposed Rule for Herring Amendment 8.”

            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 us. 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, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Copies of Amendment 8, including the Environmental Impact Statement, the Regulatory Impact Review, and the Initial Regulatory Flexibility Analysis (EIS/RIR/IRFA) prepared in support of this action are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at: http://www.nefmc.org.

          FOR FURTHER INFORMATION CONTACT:

          Carrie Nordeen, Fishery Policy Analyst, phone: (978) 282-9272 or email: Carrie.Nordeen@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background

        The goal of the Atlantic Herring Fishery Management Plan (FMP) is to manage the herring fishery at long-term sustainable levels and objectives of the FMP include providing for full utilization of the optimum yield (OY) and, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. The Herring FMP describes OY as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, taking into account the protection of marine ecosystems, including maintenance of a biomass that supports the ocean ecosystem, predator consumption of herring, and biologically sustainable human harvest. This includes recognition of the importance of herring as one of many forage species of fish, marine mammals, and birds in the Greater Atlantic Region. Consistent with these aims, the goals for Amendment 8 are to: (1) Account for the role of herring within the ecosystem, including its role as forage; (2) stabilize the fishery at a level designed to achieve OY; and (3) address localized depletion in inshore waters.

        On February 26, 2015 (80 FR 10458), the New England Fishery Management Council (Council) published a notice of intent (NOI) to prepare an EIS for Amendment 8 to consider long-term harvest strategies for herring, including an acceptable biological catch (ABC) control rule that addressed the biological and ecological requirements of the herring resource. The importance of herring as a forage species was underscored by the Council's specified intent to consider a wide range of ABC control rule alternatives, including those that explicitly account for herring's role in the ecosystem. The Council held scoping meetings during March and April of 2015 to solicit comments on ABC control rule alternatives.
        An ABC control rule is a formulaic approach for setting a harvest limit. For herring and other stocks with a defined overfishing limit (OFL), the ABC is reduced from the OFL by scientific uncertainty, such as uncertainty around stock size estimates, variability around estimates of recruitment, and consideration of ecosystem issues, so that the OFL will not be exceeded. The ABC control rule is developed by the Council to reflect its risk tolerance for not exceeding the OFL and provides guidance to the Council's Scientific and Statistical Committee for recommending annual ABCs based on the best available scientific information about stock status. The specific parameters of an ABC control rule are: (1) Upper biomass parameter; (2) maximum fishing mortality (F); and (3) lower biomass parameter. The values assigned to each of these parameters dictate the overall “shape” or function of the ABC control rule and determine whether F increases or decreases in response to the current estimate of stock biomass.

        The Council developed alternatives for a herring ABC control rule using a Management Strategy Evaluation (MSE). MSE is a decision-making tool that uses computer modeling to compare the performance of alternatives (i.e., management strategies) under various scenarios to achieve multiple, competing objectives. Because we do not have a complete understanding of the ocean ecosystem and all the sources of uncertainty, MSEs are useful to evaluate how alternatives perform under different environmental conditions. The Council held two public workshops to generate stakeholder input to help identify objectives for the MSE analysis. Input generated by the workshops was considered by the Council and, for the most part, adopted and included in Amendment 8. The MSE used three models, a herring model, a predator model, and an economic model, to compare ABC control rule performance. The models simulated how well the ABC control rules achieved herring management objectives, such as biomass, yield, revenue, and predator considerations, under simulated environmental conditions related to herring growth, stock assessment bias, and productivity of herring. Results of the MSE informed the range of ABC control rule alternatives and impact analyses of those alternatives in Amendment 8.
        On August 21, 2015 (80 FR 50825), the Council published a supplemental NOI announcing it was expanding the scope of Amendment 8 to consider localized depletion in inshore waters. The supplemental NOI defined localized depletion as harvesting more fish from an area than can be replaced within a given time period. It also explained the Council was seeking input from the interested public as to how to define, measure, and evaluate impacts, and minimize inshore, localized depletion in the herring fishery as part of Amendment 8. Public comment during the supplemental scoping made it clear that localized depletion concerns voiced by many stakeholders were not just related to the biological impacts of herring removals on the herring stock and on predators of herring. Public comment also indicated that impacts of localized depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring.
        The Council's interest in the localized depletion of herring extends back to the early development of the Herring FMP. Despite a lack of quantitative evidence demonstrating localized depletion, Amendment 1 to the Herring FMP (72 FR 11252, March 12, 2007) prohibited midwater trawling for herring in Herring Management Area 1A from June through September as a proactive measure to prevent potential negative impacts on the stock, the fishery, and predators of herring resulting from over harvesting in Area 1A.
        Ultimately, the Council's consideration of localized depletion in Amendment 8 included describing localized depletion as involving user group conflict and included both an evaluation of impacts of the user group conflict and consideration of competing interests for how herring should be used. The Council's concern with localized depletion and user group conflict is explained in this excerpt from the Council's April 2016 problem statement: “. . .   concerns with concentrated, intense commercial fishing of Atlantic herring in specific areas and at certain times that cause detrimental socioeconomic impacts on other user groups (commercial, recreational, ecotourism) who depend upon adequate local availability of Atlantic herring to support business and recreational interests both at sea and on shore.” The range of localized depletion and user group conflict alternatives in Amendment 8 were developed to address potential localized depletion of herring to minimize possible detrimental biological impacts on predators of herring and associated socioeconomic impacts on other user groups.

        A Notice of Availability (NOA) for Amendment 8 was published in the Federal Register on August 21, 2019 (84 FR 43573). The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) allows us to approve, partially approve, or disapprove measures recommended by the Council in an amendment based on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. The Council develops policy for its fisheries, and we defer to the Council on policy decisions unless those policies are inconsistent with the Magnuson-Steven Act or other applicable law. As such, we are seeking comments on whether measures in Amendment 8 are consistent with the Herring FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. The comment period for the NOA ends on October 21, 2019. Comments submitted on the NOA and/or this proposed rule prior to October 21, 2019, will be considered in our decision to approve, partially approve, or disapprove Amendment 8. We will consider comments received by the end of the comment period for this proposed rule November 25, 2019 in our decision to implement measures proposed by the Council.
        Proposed Measures

        This rule proposes a long-term ABC control rule for herring. Under the proposed control rule, when biomass is at or above 50 percent of the biomass associated with maximum sustainable yield (BMSY) or its proxy, ABC is the catch associated with a maximum fishing mortality (F) of 80 percent of FMSY or its proxy. When biomass falls below 50 percent of BMSY or its proxy, F declines linearly to 0 at 10 percent of BMSY or its proxy. The control rule would set ABC for a three-year period but would allow ABC to vary year-to-year in response to projected changes in biomass. This rule proposes that the control rule could be revised via a framework adjustment if a quantitative assessment is not available, if projections are producing ABCs that are not justified or consistent with available information, or if the stock requires a rebuilding program.

        The proposed control rule is intended to explicitly account for herring as forage in the ecosystem by limiting F to 80 percent of FMSY when biomass is high and setting it at zero when biomass is low. It is also intended to generate an ABC consistent with specific criteria identified by the Council, including low variation in yield, low probability of the stock becoming overfished, low probability of a fishery shutdown, and catch limits set at a relatively high proportion of MSY. The Council anticipates that short-term negative economic impacts on participants in the herring or lobster fisheries, resulting from a reduced herring harvest in response to low herring biomass, may become a long-term economic benefit for industry participants, especially if the proposed control rule results in low variation in yield, low probability of a fishery shutdown, and low probability of overfishing. Relative to other control rules considered by the Council, the proposed control rule is designed to more effectively balance the goal and objectives of the Herring FMP, including managing the fishery at long-term sustainable levels, taking forage for predators into account to support the ocean ecosystem, and providing a biologically sustainable harvest as a source of revenue for fishing communities and bait for the lobster fishery.
        Shortly before the Council took final action on Amendment 8, an updated stock assessment concluded that herring biomass is low, and the probability of overfishing and the stock becoming overfished is high. While not directly applicable to a long-term harvest policy, the Council noted that under herring's current condition of low biomass, setting catch more conservatively than status quo may increase the likelihood of stock growth. In turn, this would have positive impacts on the herring fishery, predators, and predator fisheries.
        This rule also proposes prohibiting the use of midwater trawl gear inshore of 12 nautical miles (22 km) from the U.S./Canada border to the Rhode Island/Connecticut border and inshore of 20 nautical miles (37 km) off the east coast of Cape Cod. Specifically, federally permitted vessels would be prohibited from using, deploying, or fishing with midwater trawl gear within the inshore midwater trawl restricted area located shoreward of the 12-nautical mile (22-km) territorial sea boundary from Canada to Connecticut and within thirty-minute squares 114 and 99 off Cape Cod (Figure 1). Midwater trawl vessels would be able to transit the inshore midwater trawl restricted gear area provided gear was stowed and not available for immediate use. The proposed measure would be in addition to the existing prohibition on midwater trawling for herring in Area 1A during June 1 through September 30.

          EP09OC19.024

        The Council recommended the proposed inshore midwater trawl restricted area to minimize local depletion and user group conflict when midwater trawl vessels harvesting herring overlap with other user groups (i.e., commercial fisheries, recreational fisheries, ecotourism) that rely on herring as forage and provide inshore conservation benefits. The Council focused on midwater trawl gear to mitigate potential negative socioeconomic impacts on other user groups in response to short duration, high volume herring removals by midwater trawl vessels that are relatively more mobile and capable of fishing in offshore areas than vessels using other gear types. Information to quantify the impact of midwater trawling on other user groups is scarce, so the amendment analyzed the degree of overlap between midwater trawl vessels and other user groups. The proposed measure is intended to incorporate areas with a high degree of overlap between midwater trawl vessels and other user groups throughout the year. Specifically, it incorporates the overlap with predator fisheries in the Gulf of Maine and southern New England throughout the year, as well as the overlap with ecotourism and the tuna fishery in Area 1A during the fall. While overlap with the midwater trawl vessels does not necessarily translate into negative biological impacts on predators, less overlap may reduce potential user conflicts, provided midwater trawl effort does not shift into other areas and generate additional overlap.

        The Herring FMP specifies that herring research set-aside (RSA) can equal up to three percent of the sub-annual catch limit for a herring management area. This rule proposes that RSA compensation fishing using midwater trawl gear would be permitted within the inshore midwater trawl restricted area. The Council recommended permitting RSA compensation fishing within the inshore midwater trawl restricted area to help ensure the RSA would be harvested and those funds would be available to support the projects awarded RSA. Vessels engaged in herring RSA compensation fishing typically operate as authorized by an exempted fishing permit (EFP) so they can request exemptions from certain regulations that would otherwise restrict herring harvest. While vessels would be permitted to use midwater trawl gear within the inshore midwater trawl restricted area while RSA compensation fishing, it does not mean that compensations trips would be without restrictions. Terms and conditions of the EFP must be consistent with the Magnuson-Stevens Act, other applicable law, and Herring FMP. Additionally, we would consider whether additional terms and conditions would be required for EFPs to ensure RSA compensation trips do not exacerbate the overlap between midwater trawl vessels and other user groups.
        This rule proposes that the inshore midwater trawl restricted area or new closures to address localized depletion and/or user group conflict could be modified or implemented via framework adjustment. The list of framework provisions at § 648.206 already includes closed areas; this amendment would add the inshore midwater trawl restricted area to that list.
        The Council's recommendation to prohibit midwater trawling in inshore areas is an allocation decision intended to balance the needs of user groups and provide conservation benefits. Consistent with objectives in the Herring FMP, the proposed measure is intended to facilitate an efficient, fair, and equitable accommodation of social, economic, and ecological factors associated with achieving OY, in part by providing, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. Because midwater trawl vessels historically harvested a larger percentage of herring than other gear types and are able to fish offshore, the Council recommended prohibiting them from inshore waters to help ensure herring was available inshore for other user groups and predators of herring. The proposed inshore midwater trawl restricted area is designed to be reasonably large enough to address the overlap between midwater trawl vessels and other user groups and, ultimately, user group conflict in inshore waters. This proposed measure is likely to negatively impact the midwater trawl fleet, with potentially increased trip costs and lower annual catches, but the Council believes that, on balance, the benefits to other user groups, such as potentially reduced trips costs, higher annual catches, and improved safety, outweigh the costs to midwater trawl vessels. The proposed measure may also have biological benefits if moving midwater trawl vessels offshore minimizes catch of river herring and shad, reduces fishing pressure on the inshore component of the herring stock, and helps ensure herring are available to predators. Herring is currently assessed as one stock, but it likely has stock components. Reducing fishing pressure inshore would benefit an inshore stock component. Analyses in Amendment 8 estimate that in recent years approximately 30 percent of the midwater trawl fleet's annualized revenue came from within the proposed inshore midwater trawl restricted area. Negative economic impacts on the midwater trawl fleet may be mitigated if the fleet is able to offset lost revenue from inshore areas with increased revenue from offshore areas. Herring catch limits are currently low, so the fishery has the capacity to harvest the OY. Recent midwater trawl landings (2007-2015) offshore of the proposed midwater trawl restricted area (36,903 mt) are much higher than the Council-recommended OY for 2020 and 2021 (11,621 mt). In the longer-term, the fishery will likely adapt to be able harvest an increased OY, provided vessels are able to locate herring.
        Proposed Clarifications
        We propose the following revision and clarifications to § 648.202(a) under the authority of section 305(d) to the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to carry out a FMP or the Magnuson-Stevens Act.
        First, this rule proposes revising the title from “Purse Seine/Fixed Gear Only Area” to “Midwater Trawl Restricted Area.” Bottom trawl gear, in addition to purse seine and fixed gear, is permitted in the referenced area; only midwater trawl gear is prohibited in the area. The proposed revision is a more accurate description of the referenced area and is necessary to clarify the intent of the regulation.
        Second, this rule proposes clarifying that the regulation applies to all federally permitted vessels fishing for herring. The regulation currently applies midwater trawl gear restrictions to vessels fishing for herring. This clarification is necessary to specify that restrictions on fishing for herring with midwater trawl gear only apply to federally permitted vessels and do not apply to vessels with only a state herring permit fishing exclusively in state waters.
        Third, the rule proposes clarifying the conditions under which midwater trawl vessels may transit the “Midwater Trawl Restricted Area” described above. Current regulations specify that midwater trawl vessels with a limited access herring permit may transit Area 1A during June through September with midwater trawl gear on board, provided the gear is stowed and not available for immediate use. This rule proposes clarifying that any federally permitted herring vessel may transit Area 1A during June through September, provided midwater trawl gear is stowed and not available for immediate use. The unnecessary addition of a limited access permit requirement to transit Area 1A is likely a byproduct of the impact analysis identifying the number of limited access vessels that would be affected by the prohibition of midwater trawling in Area 1A implemented in Amendment 1 to the Herring FMP.
        Lastly, we propose a revision to § 648.200(b)(3) under the authority of section 305(d) to the Magnuson-Stevens Act. This revision would change the reference from “at” § 648.201(a) to “in” § 648.201(a) to be consistent with other regulatory references within § 648.200.
        Classification
        Pursuant to section 304(a)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent the Magnuson-Stevens Act and other applicable law. In making the final determination, we will consider the data, views, and comments received during the public comment period.
        This proposed rule has been preliminarily determined to be not significant for purposes of Executive Order (E.O.) 12866.
        An Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule would have on small entities, including small businesses, and also determines ways to minimize these impacts.

        The IRFA includes this section of the preamble to this rule and analyses contained in Amendment 8 and its accompanying EIS/RIR/IRFA. A copy of the full analysis is available from the Council (see ADDRESSES). A summary of the IRFA follows.
        Description of the Reason Why Action by the Agency Is Being Considered and Statement of the Objective of, and Legal Basis for, This Proposed Rule
        This action proposes management measures for the herring fishery. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to this proposed rule and are not repeated here.
        Description and Estimate of the Number of Small Entities to Which the Proposed Rule Would Apply

        Effective July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry for RFA compliance purposes only (80 FR 81194, December 29, 2015). A commercial fishing business is classified as a small business if it is independently owned and operated, is not dominant in its field of operation, and has combined annual receipts not in excess of $11 million.
        This action would affect all permitted herring vessels; therefore, the direct regulated entity is a firm that owns at least one herring permit. There are many firms that hold an open-access (Category D) herring permit. These firms harvest only a small fraction of herring; furthermore, they are minimally affected by the regulations.
        As of June 1, 2018, there were 862 firms (852 small) that held at least one herring permit. There were 126 (123 small) active firms that held at least one herring permit. There were 101 (94 small) firms that held at least one limited access (Categories A, B, C) herring permit or a Category E open access herring permit. There were 53 (50 small) firms that held a limited access or Category E herring permit and were active in the herring fishery. Table 1 characterizes “gross receipts” and “herring receipts” for firms that held a limited access or Category E open access herring permit. Table 2 characterizes “gross receipts” and “herring receipts” for firms that held a limited access or Category E open access herring permit and were active in the herring fishery. In both tables, the small entities are further characterized by gear type to facilitate comparisons. There are fewer than three large entities that use midwater trawl gear, so the description of the large entities is not disaggregated to gear type to preserve confidentiality under the Magnuson-Stevens Act. Table 3 characterizes “gross receipts” and “herring receipts” for firms that held a herring permit and Table 4 characterizes “gross receipts” and “herring receipts” for firms that held a herring permit and were active in the herring fishery. Tables 3 and 4 include firms with Category D open access herring permits that would be minimally impacted by this action.

          Table 1—Average Receipts From Firms With Limited Access and Category E Open Access Herring Permits in 2017

            Firm size
            Firms
            Gear
            Grossreceipts

            Herringreceipts

            Large
            7
            All
            $20,396,374
            $492,598

            Small
            9
            Midwater Trawl
            2,499,646
            1,241,225

            Small
            85
            Non-Midwater Trawl
            1,299,110
            137,954

            Source: NMFS.

          Table 2—Average Receipts From Firms With Limited Access and Category E Open Access Herring Permits That Were Active in the Herring Fishery in 2017

            Firm size
            Firms
            Gear
            Grossreceipts

            Herringreceipts

            Large
            3
            All
            $16,567,731
            $1,149,395

            Small
            9
            Midwater Trawl
            2,499,646
            1,241,225

            Small
            41
            Non-Midwater Trawl
            1,276,255
            286,002

            Source: NMFS.

          Table 3—Average Receipts From All Firms With a Herring Permit in 2017

            Firm size
            Firms
            Gear
            Grossreceipts

            Herringreceipts

            Large
            10
            All
            $19,873,801
            $344,818

            Small
            9
            Midwater Trawl
            2,499,646
            1,241,225

            Small
            843
            Non-Midwater Trawl
            639,591
            14,002

            Source: NMFS.

          Table 4—Average Receipts From All Firms With a Herring Permit That Were Active in the Herring Fishery in 2017

            Firm size
            Firms
            Gear
            Grossreceipts

            Herringreceipts

            Large
            3
            All
            $16,567,731
            $1,149,395

            Small
            9
            Midwater Trawl
            2,499,646
            1,241,225

            Small
            114
            Non-Midwater Trawl
            681,943
            103,540

            Source: NMFS.

        Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        This action contains no new collection-of-information, reporting, or recordkeeping requirements.
        Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule
        This action does not duplicate, overlap, or conflict with any other Federal rules.
        Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities

        When evaluating ABC control rule alternatives, Alternative 1 is the non-preferred alternative with potential to lessen economic impacts on small entities compared to the proposed measure. Alternative 1 is less conservative than the proposed ABC control rule and represents the interim control rule that was used to set herring ABC for 2016-2018. Analyses in Amendment 8 suggest the difference between the average ABCs under Alternative 1 (24,553 mt) and the proposed ABC control rule (22,685 mt) in the short-term (2019-2021) is less than 2,000 mt. Long-term differences between the average ABCs resulting from Alternative 1 and the proposed ABC control rule are expected to be minimal. Relative to Amendment 8's goal for an ABC control rule, F is lower under the proposed ABC control rule (80 percent of FMSY) than under Alternative 1 (90 percent of FMSY), therefore, the proposed ABC control rule likely better accounts for herring's role as forage in the ecosystem by limiting fishing than Alternative 1.
        When evaluating localized depletion and user group conflict alternatives, several of the non-preferred alternatives have the potential to lessen economic impacts on small entities compared to the proposed measure. The proposed measure would prohibit federally permitted vessels from fishing inshore with midwater trawl gear. Under the proposed measure, analyses in Amendment 8 estimate that herring revenue will decline by about 13 percent for small firms that use midwater trawl gear compared to the no action alternative. Additionally, under the proposed measure, small firms that use purse seine or bottom trawl gear may have revenue increases of 29 percent compared to the no action alternative. Negative economic impacts on midwater trawl vessels may be mitigated if vessels are able to catch a greater percentage of fish offshore or if they switch to purse seine or bottom trawl gear and continue to fish inshore. Relative to the goals in Amendment 8, the proposed action is expected to minimize potential localized depletion and user group conflict, by reducing the overlap between midwater trawl vessels and other user groups, better than the non-preferred alternatives that would minimize economic impacts on midwater trawl vessels.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: October 1, 2019.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

        2. In § 648.14, add paragraphs (r)(1)(vi)(H) and (I) to read as follows:

          § 648.14
          Prohibitions.

          (r) * * *
          (1)  * * *
          (vi)  * * *
          (H) Use, deploy, or fish with midwater trawl gear within the inshore midwater trawl restricted area as defined in § 648.202(a)(2), unless the vessel is on a declared research set-aside trip and operating as authorized by an exempted fishing permit or the vessel has not been issued a valid, Federal permit under this part and fishes exclusively in state waters.
          (I) Transit the inshore midwater trawl restricted area, defined in § 648.202(a)(2), with midwater trawl gear onboard unless midwater trawl gear is stowed and not available for immediate use, as defined in § 648.2 or the vessel has not been issued a valid, Federal permit under this part and fishes exclusively in state waters.

        3. In § 648.200, revise paragraphs (b)(1) through (3) to read as follows:

          § 648.200
          Specifications.

          (b)  * * *

          (1) OFL must be equal to catch resulting from applying the maximum fishing mortality threshold to a current or projected estimate of stock size. When the stock is not overfished and overfishing is not occurring, this is the fishing rate supporting maximum sustainable yield (FMSY or proxy). Catch that exceeds this amount would result in overfishing.
          (2) ABC must be less than the OFL. The Council's Scientific and Statistical Committee (SSC) shall recommend ABC to the Council by applying the ABC control rule in § 648.200 and considering scientific uncertainty. Scientific uncertainty, including, but not limited to, uncertainty around stock size estimates, variability around estimates of recruitment, and consideration of ecosystem issues, shall be considered when setting ABC.
          (3) ACL must be equal to or less than the ABC. Management uncertainty, which includes, but is not limited to, expected catch of herring in the New Brunswick weir fishery and the uncertainty around discard estimates of herring caught in Federal and state waters, shall be considered when setting the ACL. Catch in excess of the ACL shall trigger accountability measures (AMs), as described in § 648.201(a).

        4. In § 648.202, revise paragraph (a) to read as follows:

          § 648.202
          Season and area restrictions.
          (a) Midwater Trawl Restricted Areas—(1) Area 1A. Federally permitted vessels fishing for Atlantic herring may not use, deploy, or fish with midwater trawl gear in Area 1A from June 1 September 30 of each fishing year. A vessel with midwater trawl gear on board may transit Area 1A from June 1-September 30, provided such midwater trawl gear is stowed and not available for immediate use as defined in § 648.2. Vessels may use any authorized gear type to harvest herring in Area 1A from October 1—May 31.
          (2) Inshore. Federally permitted vessels may not use, deploy, or fish with midwater trawl gear within the inshore midwater trawl restricted area. A federally permitted vessel with midwater trawl gear on board may transit the inshore midwater trawl restricted area, provided such midwater trawl gear is stowed and not available for immediate use as defined in § 648.2. Vessels on a declared research set-aside trip are permitted to use, deploy, or fish with midwater trawl gear within the inshore midwater trawl restricted areas provided the vessel is operating as authorized by an exempted fishing permit. The Inshore Midwater Trawl Restricted Area includes all state and Federal waters between the U.S. coastline and the following points, connected in the order listed by straight lines, unless otherwise noted:

            Table 1 to Paragraph (a)(2)

              Point
              Latitude
              Longitude
              Note

              IMT1
              44° 17.986′ N
              67° 5.503′ W
              (1)(2)

              IMT2
              42° 00.00′ N
              69° 43.474′ W
              (2)(3)

              IMT3
              42° 00.00′ N
              69° 30.00′ W

              IMT4
              41° 00.00′ N
              69° 30.00′ W

              IMT5
              41° 00.00′ N
              70° 00.00′ W

              IMT6
              41° 2.339′ N
              70° 00.00′ W
              (4)(5)

              IMT7
              40° 50.637′ N
              71° 51.00′ W
              (5)(6)

              IMT8
              41° 18.503′ N
              71° 51.00′ W
              (7)

              1 Point IMT1 represents the intersection of the U.S./Canada Maritime Boundary and the 12 nautical mile (nmi) Territorial Sea boundary.

              2 From Point IMT1 to Point IMT2 following the 12 nmi Territorial Sea boundary.

              3 Point IMT2 represents the intersection of the 12 nmi Territorial Sea boundary and 42°00′ N lat.

              4 Point IMT6 represents the intersection of 70°00′ W long. and the 12 nmi Territorial Sea boundary.

              5 From Point IMT6 to Point IMT7 following the 12 nmi Territorial Sea Boundary.

              6 Point IMT7 represents the intersection of 71°51′ W long. and the 12 nmi Territorial Sea boundary.

              7 Point IMT8 represents the intersection of 71°51′ W long. and the coastline of Watch Hill, RI.

        5. In § 648.206, revise paragraphs (b)(3), (37), and (38) and add paragraph (b)(39) to read as follows:

          § 648.206
          Framework provisions.

          (b)  * * *
          (3) Closed areas, including midwater trawl restricted areas, other than spawning closures;

          (37) River herring and shad Catch Cap Areas and Catch Cap Closure Areas;
          (38) Modifications to the ABC control rule in § 648.200, including, but not limited to, control rule parameters, if a quantitative stock assessment is not available, if the projections are producing ABCs that are not justified or consistent with available information, or if the stock requires a rebuilding program; and
          (39) Any other measure currently included in the FMP.

      [FR Doc. 2019-21712 Filed 10-8-19; 8:45 am]
      BILLING CODE 3510-22-P