        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 63
        [OAR-2002-0058; FRL-7928-7]
        RIN 2060-AM97
        National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters: Reconsideration

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule; notice of reconsideration of final rule; request for public comment.

          SUMMARY:
          The EPA is requesting comment on certain aspects of our national emission standards for hazardous air pollutants (NESHAP) for industrial, commercial, and institutional boilers and process heaters, which EPA promulgated on September 13, 2004.
          After promulgation of the final regulations for boilers and process heaters, the Administrator received petitions for reconsideration of certain provisions in the final rule. In this document, the EPA is initiating the reconsideration of some of those provisions. We are requesting comment on certain provisions of the approach used to demonstrate eligibility for the health-based compliance alternatives, as outlined in appendix A of the final rule, and on the provisions establishing a health-based compliance alternative for total selected metals. We are not requesting comment on any other provisions of the final rule. We are not granting petitioners' request that we stay the effectiveness of the health-based compliance provisions of the final rule, pending this reconsideration action.

          DATES:

            Comments. Comments must be received on or before August 11, 2005.

            Public Hearing. If anyone contacts EPA requesting to speak at a public hearing by July 7, 2005, a public hearing will be held on July 12, 2005. For further information on the public hearing and requests to speak, see the ADDRESSES section of this preamble.

          ADDRESSES:

            Comments. Submit your comments, identified by Docket ID No. OAR-2002-0058 (Legacy Docket ID No. A-96-47) by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          • Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.
          • E-mail: a-and-r-docket@epa.gov.
          • Fax: (202) 566-1741.
          • Mail: Air and Radiation Docket and Information Center, U.S. EPA, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
          • Hand Delivery: Air and Radiation Docket and Information Center, U.S. EPA, Room B102, 1301 Constitution Avenue, NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions. Direct your comments to Docket ID No. OAR-2002-0058 (Legacy Docket ID No. A-96-47). The 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.epa.gov/edocket, 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 EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal regulations.gov Web sites are “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 EDOCKET or 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.

            Public Hearing. If a public hearing is held, it will be held on July 12, 2005 at the EPA facility, Research Triangle Park, N.C. or an alternative site nearby. Persons interested in attending the hearing or wishing to present oral testimony should notify Ms. Pamela Garrett at least 2 days in advance of the public hearing (see
            FOR FURTHER INFORMATION CONTACT section of this preamble). The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning this document.

            Docket. The EPA has established an official public docket for today's document, including both Docket ID No. OAR-2002-0058 and Legacy Docket ID No. A-96-47. The official public docket consists of the documents specifically referenced in today's document, any public comments received, and other information related to the document. All items may not be listed under both docket numbers, so interested parties should inspect both docket numbers to ensure that they have received all materials relevant to today's document. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy at the Air and Radiation Docket and Information Center, U.S. EPA, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket and Information Center is (202) 566-1742.

          FOR FURTHER INFORMATION CONTACT:

          For general and technical information, contact Mr. James Eddinger, Combustion Group, Emission Standards Division, Mailcode: C439-01, U.S. EPA, Research Triangle Park, NC 27711; telephone number: (919) 541-5426; fax number: (919) 541-5450; e-mail address: eddinger.jim@epa.gov. For questions about the public hearing, contact Ms. Pamela Garrett, Combustion Group, Emission Standards Division, Mailcode: C439-01, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-7966; fax number: (919) 541-5450; e-mail address: garrett.pamela@epa.gov.

        SUPPLEMENTARY INFORMATION:

          Outline. The information presented in this preamble is organized as follows:

          I. General Information
          A. Does This Reconsideration Notice Apply to Me?
          B. How Do I Submit CBI?
          C. How Do I Obtain a Copy of This Document and Other Related Information?
          II. Background
          III. Today's Action
          A. Grant of Reconsideration
          B. Request for Stay of Health-Based Alternatives
          IV. Discussion of Issues Subject to Reconsideration
          A. Methodology and Criteria for Demonstrating Eligibility for the Health-based Compliance Alternatives
          B. Tiered Risk Assessment Methodology
          C. Look-Up Tables
          D. Site-Specific Risk Assessment
          E. Background Concentrations and Emissions From Other Sources
          F. Health-Based Compliance Alternative for Metals
          G. Deadline for Submission of Health-Based Applicability Determinations
          H. What Are the Proposed Corrections to the Health-Based Compliance Alternatives?
          V. Statutory and Executive Order Reviews
          A. Executive Order 12866: Regulatory Planning and Review
          B. Paperwork Reduction Act
          C. Regulatory Flexibility Act
          D. Unfunded Mandates Reform Act
          E. Executive Order 13132: Federalism
          F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
          G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
          H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
          I. National Technology Transfer and Advancement Act

        I. General Information
        A. Does This Reconsideration Notice Apply to Me?
        Categories and entities potentially affected by today's document include:

            Category
            SIC code a

            NAICS code b

            Examples of potentially regulated entities

            Any industry using a boiler or process heater as defined in the final rule
            2426
              28

            321322
              325

            Manufacturers of lumber and wood products. Pulp and paper mills.
              Chemical manufacturers.

            29
            324
            Petroleum refineries, and manufacturers of coal products.

            30
            316, 326, 339
            Manufacturers of rubber and miscellaneous plastic products.

            33
            331
            Steel works.

            34
            332
            Electroplating, plating, polishing, anodizing, and coloring.

            37
            336
            Manufacturers of motor vehicle parts and accessories.

            49
            221
            Electric, gas, and sanitary services.

            80
            622
            Health services.

            82
            611
            Educational services.

            a Standard Industrial Classification.

            b North American Industrial Classification System.

        This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by today's document. To determine whether your facility is affected by today's document, you should examine the applicability criteria in § 63.7485 of the final rule. If you have questions regarding the applicability of today's document to a particular entity, consult Mr. Jim Eddinger listed in the preceding FOR FURTHER INFORMATION CONTACT section.
        B. How Do I Submit CBI?
        Do not submit this information to EPA through EDOCKET, regulations.gov, or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI 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.
        C. How Do I Obtain a Copy of This Document and Other Related Information?

        In addition to being available in the docket, an electronic copy of today's document also will be available on the World Wide Web (WWW) through EPA's Technology Transfer Network (TTN). Following the Administrator's signature, a copy of this document will be posted on the TTN's policy and guidance page for newly proposed rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control.
        II. Background

        On September 13, 2004 (69 FR 55218), we promulgated NESHAP for sources in the industrial, commercial, and institutional boilers and process heaters category pursuant to section 112 of the Clean Air Act (CAA). Under section 112(d) of the CAA, the NESHAP must reflect the maximum degree of reduction in emissions of HAP that is achievable, taking into consideration the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements. This level of control is commonly referred to as maximum achievable control technology (MACT). However, section 112(d)(4) of the CAA also states that “[w]ith respect to pollutants for which a health threshold has been established, the Administrator may consider such threshold level, with an ample margin of safety, when establishing emissions standards under this subjection.”
        We proposed standards for industrial, commercial, and institutional boilers and process heaters on January 13, 2003 (68 FR 16660). The preamble for the proposed rule described the rationale for the proposed rule and solicited public comments. We requested comment on incorporating various risk-based approaches (based on section 112(d)(4) and other provisions of the CAA) into the final rule to reduce the cost of regulatory controls on those facilities that pose little risk to public health and the environment. (See 68 FR 1688-1693.) Industry trade associations, owners/operators of boilers and process heaters, State regulatory agencies, local government agencies, and environmental groups submitted comments on the proposed risk-based approaches. We received a total of 218 public comment letters on the proposed rule during the comment period. We summarized major public comments on the proposed risk-based approaches, along with our responses to those comments, in the preamble to the final rule (see 69 FR 55239-55244) and in the comment response memorandum, “Response to Public Comments on Proposed Industrial, Commercial, and Institutional Boilers and Process Heaters NESHAP (Revised) (RTC Memorandum) that was placed in the docket for the final rule.
        In the final rule, we adopted health-based compliance alternatives for hydrogen chloride (HCl) and manganese based on our authority under sections 112(d)(4) of the CAA. Affected sources demonstrating that they are eligible for one or both of the health-based compliance alternatives are not required to demonstrate compliance with specific emissions limits in table 1 to the final rule. Affected sources that successfully demonstrate that they are eligible for the HCl health-based compliance alternatives are not subject to the MACT HCl emission limit but are still subject to operating and monitoring requirements in the final rule (subpart DDDDD of 40 CFR part 63). With respect to manganese, affected sources that demonstrate eligibility for the health-based compliance alternative for total selected metals (TSM) are still subject to the MACT TSM emission limit and operating and monitoring requirements in the final rule (subpart DDDDD of 40 CFR part 63) except that they may demonstrate compliance with the TSM emission limit based on the sum of emissions for seven metals, instead of the eight selected metals, by excluding manganese emissions.
        The methodology and criteria for affected sources to use in demonstrating eligibility for the health-based compliance alternatives were promulgated in appendix A to subpart DDDDD of 40 CFR part 63. (See 69 FR 55282-55286.) Appendix A specifies the process units and pollutants that must be included in the eligibility demonstration, the emissions testing methods, the criteria for determining if an affected source is eligible, the risk assessment methodology (look-up table analysis or site-specific risk analysis), the contents of the eligibility demonstration, the schedule for submission of the self-certified eligibility demonstrations, and the methods for ensuring that an affected source remains eligible.
        For an affected source to be eligible for the health-based compliance alternatives, it must submit a signed certification that the demonstration is an accurate depiction of the affected facility. Thereafter, it must have federally enforceable conditions reflecting the parameters used in the eligibility demonstration incorporated into its title V permit to ensure that it remains eligible.
        Following promulgation of the final rule, the Administrator received petitions for reconsideration pursuant to section 307(d)(7)(B) of the CAA from the Natural Resources Defense Council (NRDC), Environmental Integrity Project (EIP), and General Electric (GE).1
           Under this provision, the Administrator is to initiate reconsideration proceedings if the petitioner can show that it was impracticable to raise an objection to a rule within the public comment period or that the grounds for the objection arose after the public comment period.

            1 In addition to the petitions for reconsideration, two petitions for judicial review of the final rule were filed with the U.S. Court of Appeals for the District of Columbia by NRDC, Sierra Club, and EIP (No. 04-1385, D.C. Cir.) and American Municipal Power—Ohio and the Ohio cities of Dover, Hamilton, Orrville, Painesville, Shelby, and St. Marys (No. 04-1386, D.C. Cir.). The two cases have been consolidated. Eleven additional parties have filed petitions to intervene: American Home Furnishings Alliance, Council of Industrial Boiler Owners, American Forest and Paper Association, American Chemistry Council, National Petrochemical and Refiners Association, American Petroleum Institute, National Oilseed Processors Association, Coke Oven Environmental Task Force, Utility Air Regulatory Group, and Alliance of Automobile Manufacturers are intervening with regard to the health-based compliance alternatives.

        NRDC and EIP initially requested that EPA reconsider seven issues reflected in the final rule that they believe could not have been practicably addressed during the public comment period. EIP also filed a supplement to this petition which raised additional issues for reconsideration. Together, NRDC and EIP have requested reconsideration of the following issues: (1) The adoption of “no control” MACT floors for certain subcategories and pollutants; (2) establishing risk-based alternatives on a plant-by-plant basis; (3) the presence of health thresholds for HCl and manganese; (4) consideration of background pollution and co-located emission sources; (5) establishing a health-based compliance alternative for a pollutant (HCl) that serves as a surrogate for other inorganic pollutants; (6) promulgating a health-based compliance alternative that allows low-risk sources of manganese emissions to comply with the MACT limitations for metals without counting manganese; (7) the procedures for demonstrating compliance with the health-based alternatives; (8) consideration of emissions during periods of startup, shutdown, malfunction and (9) the cost-effectiveness of the health-based alternatives. The NRDC and EIP petition also requested that EPA stay the effectiveness of the health-based compliance alternatives pending reconsideration.
        By letters dated January 28, 2005, we informed NRDC and EIP that we intended to grant their joint petition for reconsideration. We indicated in those letters that we would respond to the petitions by publishing this document.
        III. Today's Action
        A. Grant of Reconsideration

        Today, we are granting reconsideration of several of the issues raised in the NRDC and EIP petition for reconsideration. As a result, we are requesting comment on certain provisions in appendix A of subpart DDDDD of 40 part 63 and the health-based compliance alternative for total selected metals reflected in § 63.7507(b) of the final rule. We are continuing to review the issue raised by GE with respect to the emissions averaging provision of the final rule and are not taking action on that petition at this time.2

            2 GE requested reconsideration of the emissions averaging provisions of the final rule to address how this provision might apply in the context of emissions units that vent to a single stack.

        Nearly all of the issues on which NRDC and EIP request reconsideration relate to the health-based compliance alternatives adopted in the final rule. Although we believe these aspects of the final rule are properly supported and justified, we recognize that the public may not have had the opportunity to comment on each of the implementation requirements for these alternatives that are reflected in the final rule because they were not completely developed by EPA at the time of the proposed rule. Section IV discusses the issues for which we are soliciting comment, including the methodology and criteria for demonstrating eligibility for the health-based compliance alternatives, the tiered risk assessment approach, look-up tables, site-specific risk assessment, background concentrations and emissions from other sources, submission deadlines, and the health-based compliance alternative for metals.

        We are not reconsidering the remaining issues raised by NRDC and EIP because we believe we provided clear notice and a full opportunity to comment on these aspects of the final rule. We proposed “no emissions control” floors in our January 2003 action and received comments on this issue. (See 68 FR 1672-1678; 69 FR 55233; RTC Memorandum at 78-79.) We also proposed to establish plant-by-plant health-based alternatives under the authority of section 112(d)(4) of the CAA and thoroughly explained why this action is legally permissible in response to comments on this issue (69 FR 55239-44). (See also RTC Memorandum at 185-269.) Likewise, we proposed health-based compliance alternatives for HCl and proposed using HCl as a surrogate to regulate other inorganic pollutants. (See 68 FR 1671, 1692.) We received and responded to comments raising concerns about combining these two concepts in the rule, as proposed, and addressed this issue when we developed appendix A to subpart DDDDD. (See 69 FR 55243-55244.) We identified the Integrated Risk Information System (IRIS) reference concentrations for HCl and manganese in the notice of proposed rulemaking (68 FR 1690). These values were established through a process conducted by EPA's Office of Research and Development in which there was opportunity for public participation (e.g., 58 FR 11490 (February 25, 1993). The IRIS process is a rigorous scientific process which includes internal peer review, external scientific peer review combined with public notice, and often includes outside peer consultation to support the development of dose-response knowledge.
        Commenters also had an opportunity to address our treatment of emissions during periods of startup, shutdown, and malfunction and the cost-effectiveness of the proposed rule. We received and responded to several comments regarding startup, shutdown, and malfunction plans. (See RTC at 144-155 (section 12)). We assessed the costs and benefits of the final rule in the preamble to the final rule (69 FR 55245-55247) and the supporting documentation “Regulatory Impact Analysis for the Final Industrial, Commercial, and Institutional Boilers and Process Heaters MACT” that was included in the docket.
        B. Request for Stay of Health-Based Alternatives
        We are not granting the request by NRDC and EIP for a stay of the health-based compliance alternatives. Under section 307(b)(1) and 307(d)(7)(B) of the CAA, the effectiveness of our final rules is not automatically postponed by our granting of a petition for reconsideration on certain issues. However, the Administrator has the discretion to stay such rules pending reconsideration for a period not to exceed 3 months.
        We do not believe it is necessary in this instance to stay the health-based compliance alternatives. Although we have decided to reconsider certain aspects concerning the implementation of these alternatives, we do not have reason to believe that approaches reflected in these provisions are erroneous. We regard these aspects of the final rule as a reasonable exercise of our discretion and authority under the CAA that will reduce compliance costs for sources.
        The public health is not endangered by the continued effectiveness of the health-based compliance alternatives during the reconsideration process. A facility cannot invoke this alternative compliance option unless it demonstrates to the appropriate permitting authority that its emissions exhibit characteristics that EPA believes do not pose significant risk to the surrounding population. In addition, the compliance date for existing sources is in 2007, so the health-based compliance alternatives will not be applied to such sources immediately.
        Finally, we intend to complete our reconsideration of the final rule expeditiously. Any uncertainty that may be created by our partial granting of these petitions for reconsideration will be short-lived.
        Thus, at this time we do not propose to change the compliance date for the final rule or the date for submittal of health-based eligibility demonstrations. However, we request comment on whether, in light of the time required to complete this reconsideration action, we should adjust the timetable for submission of these eligibility determinations.
        IV. Discussion of Issues Subject to Reconsideration
        Stakeholders who would like for us to reconsider comments relevant to those issues that they submitted to us previously should identify the relevant docket entry numbers and page numbers of their comments to facilitate expeditious review during the reconsideration process. We plan to take final action on today's reconsideration as expeditiously as possible.
        A. Methodology and Criteria for Demonstrating Eligibility for the Health-Based Compliance Alternatives
        In the final rule, we established emissions limitations for particulate matter (PM), TSM, HCl, mercury, and carbon monoxide based on MACT. These limitations are set forth in table 1 to subpart DDDDD. In addition, based on section 112(d)(4) of the CAA, we also established health-based compliance alternatives to the HCl and TSM emissions limitations, which are set forth in § 63.7507 of subpart DDDDD. Under these alternatives, an affected source that qualifies may demonstrate compliance with a health-based HCl equivalent allowable emission limit instead of the emissions limitation for HCl set forth in table 1. For TSM, an affected source that qualifies may demonstrate compliance with the emission standard for TSM in the final rule based on the sum of emissions for the seven selected metals, excluding manganese emissions from the summation of TSM emissions for the affected source.

        In our notice of proposed rulemaking, we described approaches that we might use to implement an applicability cutoff for threshold pollutants based on section 112(d)(4) of the CAA. (See 68 FR 1689-1692.) We discussed establishing the applicability cutoffs using a target organ specific HI, which is the sum of the individual hazard quotients (HQ) for pollutants that affect the same target organ or system. A HQ is the ratio of the level of exposure for a single substance over a specified time period to a reference level (e.g., EPA's reference concentration, or RfC) for that substance derived for a similar exposure period. The RfC is an estimate of a continuous inhalation exposure or a daily exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious non-cancer effects during a lifetime. (See 69 FR 1689.) In addition, we discussed the possibility of developing a series of simple look-up tables that a facility could use to determine whether emissions from a source might cause a hazard index limit to be exceeded. (See 69 FR 1691.) In addition, we also discussed the possibility that a facility that did not pass the look-up table analysis might be able to demonstrate that the facility does not exceed the HI limit by conducting a more site-specific and resource-intensive analysis using EPA-approved modeling procedures. (See 69 FR 1691.)
        In the final rule, we established procedures for demonstrating eligibility for the health-based compliance alternatives and codified them in appendix A of subpart DDDDD. These procedures are summarized in the preamble to the final rule (69 FR 55227-55228). The preamble to the final rule also contained a summary of our response to significant comments. (See 69 FR 55239-55244.)
        We are requesting comment on specific aspects of the methodology reflected in appendix A, as discussed in more detail in the following sections.
        B. Tiered Risk Assessment Methodology
        As noted above, appendix A to subpart DDDDD employs a tiered analytical approach to determine whether a facility is eligible for the health-based compliance alternatives. We explained in our notice of proposed rulemaking that a tiered analysis involves making successive refinements in modeling methodologies and input data such that increasing levels of refinement require more site-specific data and are, therefore, less likely to overestimate risks. (See 68 FR 1691.)
        Additionally, in our notice of proposed rulemaking, we indicated that EPA guidance could provide the basis for conducting a tiered analysis. (See 68 FR 1691.) Such guidance may be found in the document “A Tiered Modeling Approach for Assessing the Risks due to Sources of Hazardous Air Pollutants,” EPA-450/4-92-001 that we referenced in a footnote. Although it was clearly referenced in the proposal, we inadvertently failed to place this document in the docket for the proposed rulemaking. It is now in the docket.

        Appendix A describes a tiered approach where sources can utilize the health-based alternative compliance options by performing either a look-up table analysis or a more detailed site-specific analysis. Thus, a source would start with a modeling strategy that requires very little site-specific data and makes health-protective assumptions (e.g. look-up tables). At more refined tiers, the assessment becomes more realistic (e.g. less likely to overestimate risks) but it requires more site-specific data and possibly more sophisticated models. Thus, higher tier assessments result in a more realistic assessment of risk but require more data and are more labor intensive to conduct.
        In the implementation of this approach in the final rule, we did two things: (1) We created look-up tables specific to this source category, eliminating the need to use the generic look-up table in the proposed reference, and (2) we referred the user requiring more refined tiers of analysis to our recently published Air Toxics Risk Assessment Reference Library, Volume 2, Facility-specific Assessment, a document which builds off the earlier EPA guidance document (the one referenced in the proposal), implementing the tiered approach in the context of a facility-specific risk assessment for air toxics. Both of these documents endorse the assessment of air toxics risks using a tiered, iterative approach, and that has been the preferred approach ever since it was endorsed by the National Academy of Sciences in their report, “Science and Judgment in Risk Assessment,” NRC press, 1994.
        In response to the concerns expressed by the petitioners, we have entered the document “A Tiered Modeling Approach for Assessing the Risks Due to Sources of Hazardous Air Pollutants” into the docket for public review. We request comment on the use of a tiered analysis in appendix A and the application in this case of the principles set forth in the aforementioned document.
        C. Look-Up Tables
        In the notice of proposed rulemaking, for the first tier of a risk assessment analysis for threshold pollutants, we proposed to develop a series of simple look-up tables based on the results of air dispersion modeling using conservative input assumptions. We proposed to create tables using a limited number of parameters (such as stack height, distance to property line, and emissions rate) that could be used to easily determine whether emissions from a source might cause a HI limit to be exceeded. (See 68 FR 1691.)
        In the final rule, we promulgated specific look-up tables for HC1 and manganese that provide allowable emissions rate values for several combinations of stack heights and distances to a property boundary. (See 69 FR 55286.) A source is eligible for the compliance alternatives if its calculated emission rate does not exceed the appropriate value in the look-up table.
        We developed the look-up tables for hydrogen chloride and manganese in appendix A to subpart DDDDD using the health-protective SCREEN3 air dispersion model. A description of the method we used to develop the look-up tables is set forth in a memorandum in the docket entitled “Development of Central Nervous System and Respiratory System Look-up Tables for Industrial Boilers.” We ran dispersion models using health-protective assumptions that we believe are appropriate for a screening analysis such as the one set forth in appendix A to subpart DDDDD.
        The look-up table for HCl was developed based on an evaluation of not just HCl, but all acid gas and respiratory HAP. Likewise, the look-up table for manganese was developed based on an assessment of not just manganese emissions, but all central nervous system HAP emissions.
        We used average stack height because, based on available stack height information for several facilities, we found that the stacks heights of multiple solid fuel units at a given facility are generally similar. In light of this finding and health-protective assumptions built into the look-up tables, we believe that using average stack height will not understate the risks posed by each source.
        We request comment on the look-up tables and the methodology used to develop them. This includes our use of average stack heights, the derivation of different look-up table values based on distance from the property line, and the use of conservative assumptions to account for other variables such as meteorology.
        D. Site-Specific Risk Assessment

        If a facility cannot show eligibility for a compliance alternative based on the look-up table, it may conduct a more refined site-specific risk assessment in accordance with section 7 of appendix A to subpart DDDDD. (See 69 FR 55283.) Under this approach, a facility must use any scientifically-defensible, transparent and peer-reviewed assessment methodology to determine risk from the facility. The facility is eligible for the alternative compliance option if the site-specific risk assessment shows that the maximum HI (or HQ) from the affected sources at the facility is less than or equal to 1.0.
        An example of site-specific modeling performed in accordance with the principles set forth in appendix A to subpart DDDDD is described in the EPA “Air Toxics Risk Assessment Reference Library” which is referenced in section 7 of appendix A. The library includes examples of how to estimate inhalation exposures and other parameters.

        Our approach in appendix A to subpart DDDDD is based on the general air toxics risk assessment approach presented in EPA's Residual Risk Report to Congress (available at http://www.epa.gov/ttn/oarpg/t3/reports/risk_rep.pdf). The Air Toxics Risk Assessment Reference Library has been peer-reviewed and was developed according to the principles, tools and methods outline in the Residual Risk Report to Congress.
        For accuracy, a facility is required to use site-specific and quality-assured data whenever possible. Selection of site-specific input parameters is the essence of this site-specific demonstration. As a result, section 7(c)(5) of appendix A to subpart DDDDD requires adequate documentation for all inputs and assumptions.
        We request comment on the approach for conducting a site-specific risk assessment and the criteria set forth in section 7 of appendix A to subpart DDDDD.
        E. Background Concentrations and Emissions From Other Sources
        In our notice of proposed rulemaking, we discussed using a HI to identify the applicability cutoff for a standard for threshold pollutants based on section 112(d)(4) of the CAA. (See 68 FR 1689-1691.) One option that we discussed was using a HI of 1.0. (See 68 FR 1691.) A second option that we discussed was using a HI of less than 1.0, such as 0.2, which would reflect an assumption that 20 percent of individual's total exposure comes from a particular source, and that 80 percent of the exposure would result from background concentrations of pollutants resulting from other sources. We also discussed the option of using available data from scientific literature to determine a background concentration. (See 68 FR 1691.)
        In the final rule, we decided to employ a HI or HQ of 1.0 as the applicability cutoff for the assessments performed via appendix A to subpart DDDDD. The look-up tables included in appendix A were developed based on an HI of 1.0 for HCl and chlorine, and an HQ of 1.0 for manganese. For a site-specific compliance demonstration under section 7 of appendix A, a source must demonstrate that the subpart DDDDD, 40 CFR part 63, units at the facility are not expected to cause an individual chronic inhalation exposure from HCl and chlorine that exceeds an HI of 1.0 or an individual chronic inhalation exposure from manganese which could exceed an HQ of 1.0.
        We concluded that an HI (or HQ) limit of 1.0 was appropriate for the CAA section 112(d)(4) demonstration for the boiler and process heater source category because the RfCs that are used to calculate the HI and HQ are developed to protect sensitive subgroups and to account for scientific uncertainties. We believe this ensures that a HI limit of 1.0 provides an ample margin of safety. (See RTC Memorandum at 253.)
        Additionally, we decided not to consider the impact of non-boiler-related background emissions in the implementation of the health-based compliance alternatives for HCl and manganese, indicating instead our intent to assess facility-wide emissions of HAP in future residual risk actions under section 112(f)(2) of the CAA, to the extent it is appropriate and reasonable to do so. (See RTC Memorandum at 253.)
        Although we indicated that one option for addressing background emissions was to utilize an HI of 0.2, we did not intend to suggest that this was the only reasonable approach for addressing the potential risk from background emissions. After evaluating comments on this issue, we are satisfied that an HI or HQ of 1.0 is appropriate.
        To ensure that we receive input from members of the public that wish to be heard, we are requesting comment on our approach. We also request comment on deferring any further consideration of background and co-located sources until we assess facility-wide emissions of HAP in future residual risk actions under section 112(f)(2) of the Clean Air Act.
        F. Health-Based Compliance Alternative for Metals
        The final regulations in subpart DDDDD include a health-based compliance alternative for TSM in § 63.7507(b). Applicability for this alternative is determined on the basis of the levels of emissions of manganese from affected sources, in accordance with appendix A to subpart DDDDD. A source that demonstrates eligibility for this health-based alternative is permitted to exclude manganese from its calculation of TSM to show compliance with the emissions limitations in table 1 to subpart DDDDD. Thus, under the health-based alternative for TSM, the source is in compliance with subpart DDDDD of 40 CFR part 63 if the total emissions of seven metals (rather than eight) meet the emissions limitations for TSM in table 1 to subpart DDDDD.
        In the notice of proposed rulemaking (68 FR 1689), we proposed to establish an applicability cutoff for threshold pollutants under section 112(d)(4) of the CAA. We listed dose-response assessment values for the HAP emitted by the boiler and process heater source category. (See 68 FR 1690, table 4.) The table listing these values included the reference concentrations for several pollutants, including manganese.
        Although we specifically proposed in the preamble to the notice of proposed rulemaking to establish an applicability cutoff for HCl under section 112(d)(4) of the CAA, we intended to request comment on using this approach for all threshold pollutants. Indeed, we received several comments that addressed additional pollutants besides HCl, including manganese. (See RTC Memorandum and Docket ID No. OAR-2002-0058.) Based on these comments and our analysis, we concluded in the final rule that it was appropriate to include a health-based compliance alternative for manganese as well. Because manganese is one of the HAP metals emitted by sources in the boilers and process heaters category, we promulgated a health-based alternative emissions limitations for TSM.
        To establish the health-based alternative emissions limitations for TSM, we performed the same MACT floor analysis as was conducted, and described in the proposal preamble, for the proposed TSM emission limit. This approach is described in the memorandum “Revised MACT Floor Analysis for the Industrial, Commercial, and Institutional Boilers and Process Heaters National Emission Standards for Hazardous Air Pollutants Based on Public Comments” and appendix C-2 to that memorandum, which is contained in the docket.
        We request comment on both the appropriateness of adopting a health-based compliance alternative for manganese and, under this alternative, using the same TSM emission limit in table 1 to subpart DDDDD as a limitation for seven metals, while excluding manganese from the calculation.
        G. Deadline for Submission of Health-Based Applicability Determinations.

        Under section 9(a) of appendix A to subpart DDDDD, existing sources must submit their eligibility demonstration to a permitting authority no later than the date 1 year prior to the compliance date of subpart DDDDD. Pursuant to § 63.7495(b) of the subpart DDDDD, the compliance date for existing sources is September 13, 2007. Thus, existing sources must submit their compliance demonstrations under appendix A by September 13, 2006.
        Several representatives of the regulated industry have expressed concern that EPA's reconsideration of certain aspects of appendix A to subpart DDDDD will make it difficult to make the eligibility demonstration by September 13, 2006. These parties are concerned that the uncertainty created by this reconsideration action will make it difficult to complete an eligibility demonstration by September 13, 2006.
        EPA does not believe that this reconsideration action makes it necessary to provide regulated sources with more time to prepare their eligibility demonstrations. Sources should proceed to prepare their eligibility demonstrations under the existing process promulgated in the final rule. We believe that the existing process in appendix A is supported by the record, and do not at this time have reason to believe changes will be necessary.
        To the extent we determine, based on comments submitted in response to this action, that changes are needed to appendix A to subpart DDDDD, we will evaluate whether, based on the significance of any change, additional time is needed.
        However, we will also need to consider the competing considerations which lead us to establish this date 1 year before the compliance date in the first instance. We believe 1 year is necessary in order to provide permitting authorities with enough time to evaluate the eligibility demonstrations and sources with enough time to comply with the MACT emissions limitations, if their eligibility demonstration is not accepted.
        Based on section 112(i)(3)(A) of the CAA, which states that EPA cannot establish a compliance date later than 3 years after the effective date of the final rule, we do not believe we are authorized to extend the compliance date for existing sources beyond September 13, 2007. However, under section 112(i)(3)(B) of the CAA, permitting authorities may be authorized to grant up to 1 additional year to comply where a source can demonstrate that such time is necessary for the installation of controls.
        Thus, we do not believe it is appropriate at this time to propose any adjustment to the deadline for submitting eligibility demonstrations. However, because of the concern over this timing, we request comment on whether we should or should not extend the deadline for submission of eligibility demonstrations in light of this reconsideration action.
        H. What Are the Proposed Corrections to the Health-based Compliance Alternatives?
        We made an error in § 63.7507(a) and the title of appendix A to subpart DDDDD that has caused confusion regarding the intended applicability of the health-based compliance alternative. As indicated in § 63.7507(b) and the text of appendix A, the health-based compliance alternatives, both for HCl and TSM, were intended to be applicable to any affected source subject to the HCl and TSM emission limits in table 1 to subpart DDDDD. In § 63.7507(a) and in the title of appendix A, we erroneously stated that the health-based compliance alternatives were only for the large solid fuel subcategory. Large solid fuel units are the main subcategory potentially affected by the health-based compliance alternatives but they are not the only subcategory having applicable HCl and TSM emission limits. We corrected that error by deleting the words “for large solid fuel boilers located at a single facility” from § 63.7507(a) and deleted the words “Specified for the Large Solid Fuel Subcategory” from the title of appendix A.
        These proposed corrections are intended to clarify, but not change, the coverage of the final rule. The corrections will not affect the estimated emissions reductions or the control costs for the final rule. The clarifications and corrections should make it easier for owners and operators and for local and State authorities to understand and implement the requirements.
        VII. Statutory and Executive Order Reviews
        A. Executive Order 12866: Regulatory Planning and Review
        Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
        (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
        (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
        (3) materially alter the budgetary impact of entitlement, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
        (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

        Pursuant to the terms of Executive Order 12866, it has been determined that today's notice of reconsideration is a “significant regulatory action” because it raises novel legal or policy issues. As such, the action was submitted to OMB for review under Executive Order 12866. Changes made in response to OMB suggestions or recommendations are documented in the public record (see ADDRESSES section of this preamble).
        B. Paperwork Reduction Act

        The information collection requirements in the final rule were submitted for approval to OMB under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (Information Collection Request No. 2028.01). The information collection requirements are not enforceable until OMB approves them.
        Today's notice of reconsideration imposes no new information collection requirements on the industry. Because there is no additional burden on the industry as a result of the notice of reconsideration, the information collection request (ICR) has not been revised.
        Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

        An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
        C. Regulatory Flexibility Act
        The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
        For purposes of assessing the impacts of today's notice of reconsideration on small entities, a small entity is defined as: (1) A small business having no more 500 to 750 employees, depending on the business' NAICS code; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and that is not dominant in its field.
        After considering the economic impacts of today's notice of reconsideration on small entities, we certify that the notice will not have a significant economic impact on a substantial number of small entities. The EPA has determined that none of the small entities will experience a significant impact because the notice of reconsideration imposes no additional regulatory requirements on owners or operators of affected sources.
        D. Unfunded Mandates Reform Act
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
        The EPA has determined that today's notice of reconsideration does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Although the final rule had annualized costs estimated to range from $690 to $860 million (depending on the number of facilities eventually demonstrating eligibility for the health-based compliance alternatives), today's notice of reconsideration does not add new requirements that would increase this cost. Thus, today's notice of reconsideration is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that today's notice of reconsideration does not significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's notice of reconsideration is not subject to section 203 of the UMRA.
        E. Executive Order 13132: Federalism
        Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that 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.”
        Today's notice of reconsideration does not have federalism implications. It will 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. None of the affected facilities are owned or operated by State governments, and the requirements discussed in today's notice will not supersede State regulations that are more stringent. Thus, Executive Order 13132 does not apply to today's notice of reconsideration.
        F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
        Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
        Today's notice of reconsideration does not have tribal implications. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. No affected facilities are owned or operated by Indian tribal governments. Thus, Executive Order 13175 does not apply to today's notice of reconsideration.
        G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

        Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant,” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.

        Today's notice of reconsideration is not subject to the Executive Order because EPA does not have reason to believe that the environmental health or safety risks associated with the emissions addressed by this document present a disproportionate risk to children. This demonstration is based on the fact that the noncancer human health values we used in our analysis at promulgation (e.g., reference concentrations) are determined to be protective of sensitive subpopulations, including children. Also, while the cancer human health values do not always expressly account for cancer effects in children, the cancer risks posed by facilities that meet the eligibility criteria for the health-based compliance alternatives will be sufficiently low so as not to be a concern for anyone in the population, including children.
        H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
        Today's notice of reconsideration is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we conclude that today's notice of reconsideration is not likely to have any adverse energy effects.
        I. National Technology Transfer and Advancement Act

        As noted in the final rule, section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires EPA to provide Congress, through the OMB, with explanations when EPA decides not to use available and applicable voluntary consensus standards.
        During the development of the final rule, EPA searched for voluntary consensus standards that might be applicable. The search identified three voluntary consensus standards that were considered practical alternatives to the specified EPA test methods. An assessment of these and other voluntary consensus standards is presented in the preamble to the final rule (69 FR 55251, September 13, 2004).
        Today's notice of reconsideration does not propose the use of any additional technical standards beyond those cited in the final rule. Therefore, EPA is not considering the use of any additional voluntary consensus standards for this document.

          List of Subjects in 40 CFR Part 63
          Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

          Dated: June 20, 2005.
          Stephen L. Johnson,
          Administrator.

        For the reasons stated in the preamble, title 40, chapter 1, of the code of Federal Regulations is proposed to be amended as follows:

          PART 63—[AMENDED]
          1. The authority citation for part 63 continues to read as follows:

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

            Subpart DDDDD—[Amended]

          2. Section 63.7507 is amended by revising paragraph (a) to read as follows:

            § 63.7507
            What are the health-based compliance alternatives for the hydrogen chloride (HCl) and total selected metals (TSM) standards?
            (a) As an alternative to the requirement to demonstrate compliance with the HCl emission limit in table 1 to this subpart, you may demonstrate eligibility for the health-based compliance alternative for HCl emissions under the procedures prescribed in appendix A to this subpart.

            3. Appendix A to subpart DDDDD is amended by revising the heading to read as follows:

              Appendix A to Subpart DDDDD—Methodology and Criteria for Demonstrating Eligibility for the Health-Based Compliance Alternatives

      [FR Doc. 05-12662 Filed 6-24-05; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 160301167-6167-01]
        RIN 0648-BF89
        Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2016

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes management measures for the 2016 summer flounder, scup, and black sea bass recreational fisheries. NMFS is also proposing a change to the commercial scup incidental possession limit, and two minor corrections to the summer flounder minimum mesh size regulations. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year and to provide an opportunity for public comment. The intent of these measures is to constrain recreational catch to established limits and prevent overfishing of the summer flounder, scup, and black sea bass resources. The intent of the commercial scup regulatory change is to reduce unnecessary discards by allowing more incidentally caught scup to be retained by vessels. The regulatory corrections are intended to clarify the original purpose of the regulation.

          DATES:
          Comments must be received by 5 p.m. local time, on June 7, 2016.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2016-0029, by either of the following methods:

            Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.
          • Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0029,

          • Click the “Comment Now!” icon, complete the required fields
          • Enter or attach your comments.

          —OR—

            Mail: Submit written comments to John Bullard, Regional Administrator, Greater Atlantic Region, 55 Great Republic Drive, Gloucester, MA 01930.

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

          Copies of the Supplemental Information Report (SIR) and other supporting documents for the recreational harvest measures are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The recreational harvest measures document is also accessible via the Internet at: http://www.greateratlantic.fisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Elizabeth Scheimer, Fisheries Management Specialist, (978) 281-9236.

        SUPPLEMENTARY INFORMATION:

        General Background

        The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission), in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35°13.3′ N. lat. (the approximate latitude of Cape Hatteras, North Carolina). States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen fishing in Federal waters of the exclusive economic zone (EEZ), as well as vessels possessing a summer flounder, scup, or black sea bass Federal charter/party vessel permit, regardless of where they fish.
        Recreational Management Measures Background

        The Council process for recommending recreational management measures to NMFS for rulemaking is generically described below. All meetings are open to the public and the materials utilized during such meetings, as well as any documents created to summarize the meeting results, are public information and posted on the Council's Web site (www.mafmc.org) or are available from the Council by request. Therefore, extensive background on the 2016 recreational management measures recommendation process is not repeated in this preamble.

        The FMP established monitoring committees for the three fisheries, consisting of representatives from the Commission, the Council, state marine fishery agency representatives from Massachusetts to North Carolina, and NMFS. The FMP's implementing regulations require the monitoring committees to review scientific and other relevant information annually. The objective of this review is to recommend management measures to the Council that will constrain landings within the recreational harvest limits established for the three fisheries for the upcoming fishing year. The FMP limits the choices for the types of measures to minimum fish size, per angler possession limit, and fishing season.
        The Council's Demersal Species Committee and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (Board) then consider the monitoring committees' recommendations and any public comment in making their recommendations to the Council and the Commission, respectively. The Council reviews the recommendations of the Demersal Species Committee, makes its own recommendations, and forwards them to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for each species in the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters. Commission measures are final at the time they are adopted.

        In this rule, NMFS proposes management measures for the 2016 summer flounder, scup, and black sea bass recreational fisheries consistent with the recommendations of the Council. All minimum fish sizes discussed are total length measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side. For black sea bass, total length measurement does not include the caudal fin tendril. All possession limits discussed below are per person per trip.
        Typically, the Council and Commission consider modifications to all of the Federal commercial management measures in conjunction with the specifications. In 2015, the Council and Commission postponed decision making on changes to the scup commercial measures until a more thorough analysis could be completed. After considering the full suite of commercial management measures in Federal waters, the Council recommends, and this rule proposes, changing the commercial scup incidental possession limit from 500 lb (227 kg) to 1,000 lb (454 kg) from November 1, 2016, through April 30, 2017. This incidental possession limit applies to vessels using mesh smaller than 5.0 inches (12.7 cm).
        Proposed 2016 Recreational Management Measures
        NMFS is proposing the following measures that would apply in the Federal waters of the EEZ. These measures apply to all federally permitted party/charter vessels with applicable summer flounder, scup, or black sea bass permits, regardless of where they fish, unless the state in which they land implements measures that are more restrictive. These measures are intended to achieve, but not exceed, the previously-established recreational harvest limits for these fisheries (December 28, 2015; 80 FR 80689). For summer flounder, we are proposing the use of state-by-state or regional conservation equivalency measures, which are the status quo measures, and no changes to the scup or black sea bass recreational management measures. Although unlikely, given the Board's February 2016 decisions on black sea bass measures, NMFS may implement more restrictive black sea bass measures for Federal waters if states fail to implement measures that, when paired with the Council's recommended measures, provide the necessary conservation to ensure the 2016 recreational harvest limit will not be exceeded. These measures, as recommended by the Council, would be a 14-inch (35.6-cm) minimum fish size, a 3-fish per person possession limit, and an open season of July 15-September 15, 2016.
        Summer Flounder Recreational Management Measures
        NMFS proposes to implement the Council and Commission's recommendation to use conservation equivalency to manage the 2016 summer flounder recreational fishery. The 2016 recreational harvest limit for summer flounder is 5.42 million lb (2,457 mt) and projected landings for 2015 are approximately 4.62 million lb (2,096 mt). These 2015 projected landings are based on preliminary Marine Recreational Information Program estimates through Wave 6 (November and December 2015). As a result, maintaining the 2015 measures is expected to effectively constrain the 2016 recreational landings and prevent the recreational harvest limit from being exceeded.
        Conservation equivalency, as established by Framework Adjustment 2 (July 29, 2001; 66 FR 36208), allows each state to establish its own recreational management measures (possession limits, minimum fish size, and fishing seasons) to achieve its state harvest limit partitioned by the Commission from the coastwide recreational harvest limit, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize differences in regulations for anglers fishing in adjacent waters.
        The Council and Board annually recommend that either state- or region-specific recreational measures be developed (conservation equivalency) or that coastwide management measures be implemented to ensure that the recreational harvest limit will not be exceeded. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.
        When conservation equivalency is recommended, and following confirmation that the proposed state or regional measures developed through the Commission's technical and policy review processes achieve conservation equivalency, NMFS may waive the permit condition found at § 648.4(b), which requires Federal permit holders to comply with the more restrictive management measures when state and Federal measures differ. In such a situation, federally permitted summer flounder charter/party permit holders and individuals fishing for summer flounder in the EEZ would then be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.
        In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a summer flounder management proposal to the Commission's Summer Flounder Technical Committee, or that submits measures that would exceed the Commission-specified harvest limit for that state.

        Much of the conservation equivalency measures development process happens at both the Commission and the individual state level. The selection of appropriate data and analytical techniques for technical review of potential state conservation equivalent measures and the process by which the Commission evaluates and recommends proposed conservation equivalent measures is wholly a function of the Commission and its individual member states. Individuals seeking information regarding the process to develop specific state measures or the Commission process for technical evaluation of proposed measures should contact the marine fisheries agency in the state of interest, the Commission, or both.

        The Commission has implemented an addendum to its Summer Flounder FMP (Addendum XXVII) to continue regional conservation equivalency for fishing year 2016. The Commission has adopted the following regions: (1) Massachusetts; (2) Rhode Island; (3) Connecticut and New York; (4) New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North Carolina. In order to provide the maximum amount of flexibility and to continue to adequately address the state-by-state differences in fish availability, each state in a region is required by the Council and Commission to establish fishing seasons of the same length, with identical minimum fish sizes and possession limits. The Commission will need to certify that these measures, in combination, are the conservation equivalent of coastwide measures that would be expected to result in the recreational harvest limit being achieved, but not exceeded. More information on this addendum is available from the Commission (www.asmfc.org).

        Once the states and regions select their final 2016 summer flounder management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further review and evaluation of the submitted proposals, ultimately notifying NMFS as to which proposals have been approved or disapproved. NMFS has no overarching authority in the development of state or Commission management measures, but is an equal participant along with all the member states in the review process. NMFS retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures in Federal waters, and will publish its determination as a final rule in the Federal Register to establish the 2016 recreational measures for these fisheries.

        States that do not submit conservation equivalency proposals, or whose proposals are disapproved by the Commission, will be required by the Commission to adopt the precautionary default measures. In February 2016, the Commission's Summer Flounder Board convened and approved a suite of measures and/or analytical techniques for measures development that should achieve conservation equivalency. Thus, it is unlikely that the precautionary default measures will be necessary for 2016. However, if states are initially assigned precautionary default measures, they may subsequently receive Commission approval of revised state measures. In that case, NMFS would publish a notice in the Federal Register announcing a waiver of the permit condition at § 648.4(b).
        The 2016 precautionary default measures recommended by the Council and Board are for a 20.0-inch (50.8-cm) minimum fish size, a possession limit of two fish, and an open season of May 1 through September 30, 2016.
        In this action, NMFS proposes to implement conservation equivalency with a precautionary default backstop, as previously outlined, for states that either fail to submit conservation equivalent measures or whose measures are not approved by the Commission. NMFS proposes the alternative of coastwide measures (18-inch (45.7-cm) minimum size, 4-fish possession limit, May 1-September 30 open fishing season), if conservation equivalency is not approved in the final rule.
        Scup Recreational Management Measures
        The 2016 scup recreational harvest limit is 6.09 million lb (2,763 mt) and 2015 recreational landings are currently estimated at 4.88 million lb (2,214 mt). The Council recommended maintaining the existing management measures, as no changes are needed to ensure the 2016 recreational harvest limit is not exceeded, and further liberalization of the management measures is not requested or advisable. As a result, no changes to the current scup management measures (9-inch or 22.9 cm minimum fish size, 50-fish per person possession limit, and year-round season) are proposed.
        Black Sea Bass Recreational Management Measures

        The 2016 black sea bass recreational harvest limit is 2.82 million lb (1,280 mt), while the 2015 projected landings are 3.62 million lb (1,642 mt). These 2015 projected landings are based on preliminary Marine Recreational Information Program estimates through Wave 6 (November and December 2015). 2016 management measures must reduce landings by 22-percent relative to 2015 in order to constrain catch within the 2016 recreational harvest limit. Recreational black sea bass catch occurs primarily in state waters in the states of New Jersey through Massachusetts (i.e., the northern region). As such, the Council recommends maintaining the existing black sea bass regulations for Federal waters, and implementing the necessary reduction through changes in state waters measures.
        Since 2011, the management measures in the northern region have been more restrictive than in Federal waters. The northern states, through the Commission process, are expected to implement measures to achieve a 22-percent reduction in landings from each state. The southern region states (Delaware through Cape Hatteras, North Carolina) are expected to implement state waters measures that are identical to the proposed Federal measures. The northern states' reduction, in combination with the Council's recommendation of maintaining the status quo measures in Federal waters and state waters from Delaware to North Carolina, are intended to achieve, but not exceed, the recreational harvest limit and recreational annual catch limit in 2016.
        Accountability measures for the black sea bass recreational fishery utilize a rolling three-year average comparison of catch to the average of the same three years' ACLs. Because the average catch from 2012 through 2014 exceeds the average annual catch limit for those years by 37.9 percent, an accountability measure is applicable to the 2016 fishery. The 2016 accountability measures are the same as those implemented in 2015 (12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and 201-day fishing season). Continuing these regulations preserves the accountability measures that were applied last year; as such, no further accountability measures are necessary for 2015.

        We are proposing no changes to the current Federal waters measures (12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and open seasons of May 15-September 21 and October 22-December 31), consistent with the Council's recommendation. These measures maintain the accountability measures implemented in 2015. This proposal is contingent upon the northern region, established under the Commission's Addendum XXVII, implementing the required reduction in their state regulations. If the northern region's measures do not meet the required reduction, NMFS is proposing the Council's default recommendation of a 14-inch (35.6-cm) minimum size, a 3-fish possession limit, and an open season of July 15-September 15 (i.e., a 63-day fishing season). The Council and NMFS expect, based on February 2016 action by the Commission's black sea bass Board, that these default measures will not be necessary.
        Commercial Scup Incidental Possession Limit Change
        The Council initiated a review of the scup commercial management measures in 2015 and is recommending an increase in the incidental possession limit in the winter season. Currently, the regulations require vessels retaining more than 500 lb (227 kg) of scup from November 1 through April 30, or more than 200 lb (91 kg) from May 1 through October 31, to use mesh larger than 5 inches (12.7 cm). The Council is recommending, and this rule proposes, to raise the incidental limit to 1,000 lb (454 kg) for the November-April season for vessels using mesh smaller than 5 inches (12.7 cm) to minimize regulatory discards without compromising the scup stock. Vessels using mesh larger than 5 inches (12.7 cm) may continue to land up to the targeted commercial fishery possession limit according to the applicable Federal and state rules.
        Additional Regulatory Changes
        This rule would also correct two errors in the commercial summer flounder regulations.
        The summer flounder minimum mesh size regulations at § 648.108(a)(1) require that any vessel landing or possessing more than 100 lb (45 kg) of summer flounder from May 1 through October 31, or 200 lb (91 kg) of summer flounder from November 1 through April 30, use at least 5.5-inch (14-cm) diamond or 6.0-inch (15-cm) square mesh “throughout the body, extension(s), and codend portion of the net.” However, the turtle excluding device (TED) regulations require summer flounder trawls fishing in the sea turtle protection area to have a TED extension with webbing no larger than 3.5 inches (9-cm). This rule would eliminate the conflict between these two regulations by specifying that the minimum mesh size restrictions do not apply to extensions needed to comply with the TED regulations.
        The flynet program exemption from the summer flounder minimum mesh requirements can be found at § 648.108(b)(2)(i)-(iii). The Regional Administrator's authority to terminate the exemption after review is incorrectly listed at § 648.108(b)(3) and should be referenced at § 648.108(b)(2)(iv), which this rule proposes to do.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
        The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with a SIR. Because no regulatory changes are proposed that would affect the recreational black sea bass or scup fisheries, they are not considered in the evaluation. There were 547 federally permitted summer flounder charter/party vessels, all of which are considered “small” by the Small Business Administration's size standards. The commercial scup incidental possession limit change could potentially affect 649 commercial entities that had revenues generated from scup during the 2012-2014 period. Of these, 642 entities are categorized as small and 7 are categorized as large. Scup represented approximately 0.06 percent of the average receipts of the small entities considered and 0.34 percent of the average receipts of the large entities considered over the 2012-2014 time period.
        The proposed measure would continue the use of conservation equivalency for summer flounder, maintain the existing scup and black sea bass recreational management measures, and increase the commercial incidental scup possession limit from 500 lb (227 kg) to 1,000 lb (454 kg). The proposed action would result in status quo measures for all three recreational fisheries in Federal waters. Further, the scup possession limit change is intended to allow vessels catching scup in the prosecution of other fisheries to keep 500 lb (227 kg) more than they are currently allowed, rather than discarding them. This is not likely to change fishing behavior, but could result in a slightly positive economic impact for those vessels. Collectively, analysis conducted by the Council indicates that these measures would have a minimal, potentially slight positive impact on regulated entities.
        Because this rule will not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
        There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: May 18, 2016.
          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. Section 648.107, introductory text to paragraph (a) is revised to read as follows:

          § 648.107
          Conservation equivalent measures for the summer flounder fishery.
          (a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2016 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. This determination is based on a recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission.

        3. In § 648.108, paragraph (b)(3) is redesignated as paragraph (b)(2)(iv) and paragraph (a)(1) is revised to read as follows:

          § 648.108
          Summer flounder gear restrictions.
          (a) General. (1) Otter trawlers whose owners are issued a summer flounder permit and that land or possess 100 lb (45.4 kg) or more of summer flounder from May 1 through October 31, or 200 lb (90.7 kg) or more of summer flounder from November 1 through April 30, per trip, must fish with nets that have a minimum mesh size of 5.5-inch (14.0-cm) diamond or 6.0-inch (15.2-cm) square mesh applied throughout the body, extension(s), and codend portion of the net, except as required in a TED extension, in accordance with § 223.206(d)(2)(iii) of this title.

        4. In § 648.125, paragraph (a)(1) is revised to read as follows:

          § 648.125
          Scup gear restrictions.
          (a) Trawl vessel gear restrictions—(1) Minimum mesh size. No owner or operator of an otter trawl vessel that is issued a scup moratorium permit may possess 1,000 lb (454 kg) or more of scup from November 1 through April 30, or 200 lb (91 kg) or more of scup from May 1 through October 31, unless fishing with nets that have a minimum mesh size of 5.0-inch (12.7-cm) diamond mesh, applied throughout the codend for at least 75 continuous meshes forward of the terminus of the net, and all other nets are stowed and not available for immediate use as defined in § 648.2.

      [FR Doc. 2016-12076 Filed 5-20-16; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [I.D. 092903A]
        New England Fishery Management Council; Public Meeting

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

          ACTION:
          Public meeting.

          SUMMARY:
          The New England Fishery Management Council (Council) will hold a special one-day Council meeting on October 21, 2003, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).

          DATES:
          The meeting will be held on Tuesday, October 21, 2003, and will begin at 9 a.m.

          ADDRESSES:
          The meeting will be held at the Holiday Inn, One Newbury Street, Peabody, MA 01960; telephone (978) 535-4600.  Requests for special accommodations should be addressed to the New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; telephone (978) 465-0492.

          FOR FURTHER INFORMATION CONTACT:
          Paul J. Howard, Executive Director, New England Fishery Management Council, (978) 465-0492.
          Tuesday, October 21, 2003

          Following introductions, the Council will review, consider and respond to comments submitted in response to Draft Amendment 13 to the Northeast Multispecies Fishery Management Plan and its Draft Supplemental Environmental Impact Statement.  Final decisions on the Amendment 13 alternatives are scheduled to occur on November 4-6, 2003. In addition, the Council will consider and approve recommendations for Spiny Dogfish specifications for the 2004-2005 fishing year.
          Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting.  Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
          Special Accommodations

          This meeting is physically accessible to people with disabilities.  Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES) at least 5 days prior to the meeting date.

            Dated:   September 29, 2003.
            Bruce C. Morehead,
            Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 03-25027 Filed 10-1-03; 8:45 am]
      BILLING CODE 3510-22-S